{"id":51658,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/debating-human-rights-and-counterterrorism-in-britain.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"debating-human-rights-and-counterterrorism-in-britain","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/debating-human-rights-and-counterterrorism-in-britain.html","title":{"rendered":"Debating Human Rights and Counterterrorism in Britain"},"content":{"rendered":"\n
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Debating Human Rights and Counterterrorism in Britain<\/h1><\/td>\n <\/tr>\n

By JOANNE MARINER <\/h2>
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Monday, Jul. 28, 2008<\/td>\n\n <\/tr>\n <\/table>\n\n\n\n\n

It is not just in the United States that aggressive counterterrorism measures have raised serious human rights concerns.\u00a0 This month, the U.K. House of Lords began debating a draft counterterrorism law that would institute a number of harmful proposals, including granting police the power to detain terrorism suspects for up to six weeks without charge.\u00a0 While the bill garnered a narrow government majority of only nine votes, the government managed to get it passed last month in the House of Commons (the lower house of Parliament).<\/p>\n\n

Much of the debate around the bill so far has focused on the British government\u2019s effort to extend pre-charge detention beyond the already-excessive 28-day period allowed under existing law.\u00a0\u00a0 But the bill contains other worrying provisions as well.<\/p><\/span>\n\n \n \n\n\n

In a briefing paper issued earlier this month, Human Rights Watch analyzed the draft law, focusing on those provisions that it believes are incompatible with Britain’s human rights obligations.\u00a0 As Human Rights Watch emphasizes, counterterrorism measures that violate human rights undermine a government\u2019s moral legitimacy and damage its ability to win the battle for \u201chearts and minds\u201d — a battle that U.K. Prime Minister Gordon Brown has acknowledged to be central to long-term success in countering terrorism. <\/p>\n<\/span>\n

Pre-Charge Detention<\/strong><\/p>

\n Human rights groups believe that the 28-day pre-charge detention period allowed under existing law should be rolled back rather than extended.\u00a0 Surprisingly, perhaps, their opposition to the proposed extension is echoed by a number of conservative political figures, including the former head of MI5, the U.K. intelligence agency.\u00a0 In her maiden speech to the House of Lords, former MI5 director Baroness Manningham-Buller argued strongly against the proposal. She emphasized that she disagreed with the government’s plan on a \u201cpractical basis as well as a principled one.\u201d <\/p>\n

Others authorities who have criticized the planned extension include current Director of Public Prosecution Sir Ken MacDonald, former Justice Minister Lord Falconer, and former Attorney General Lord Goldsmith.\u00a0 Faced with such criticisms, the government had offered a few concessions meant to improve pre-charge detention safeguards. <\/p>\n

But the most important safeguard — robust judicial scrutiny to prevent arbitrary detention — remains wholly inadequate. The senior judge reviewing extended detention under the bill does not assess whether there are reasonable grounds to believe the person who is detained committed a terrorist offense, the ultimate issue at stake in considering whether detention is lawful or not. <\/p>\n

In addition, the 42-day detention power, when authorized by the home secretary, is valid for 30 days, down from the two months originally envisioned. But after 30 days, the home secretary can immediately reauthorize a new extension (subject to subsequent approval by Parliament), raising the possibility of rolling 42-day periods of pre-charge detention.<\/p>

\n This power only exists when the home secretary invokes an \u201cexceptionally grave terrorist threat.\u201d But the formulation is open to wide interpretation, not least because it covers attacks that are planned or executed anywhere in the world.\u00a0 And although Parliament needs to approve the power within seven days of the home secretary initially authorizing it, the legislature is ill-equipped to scrutinize individual detention decisions, a function that is best performed by the courts. <\/p>\n

How to Remedy the Bill’s Problems<\/strong><\/p>\n

The Human Rights Watch briefing paper outlines several other key problems with the proposed legislation: <\/p>\n