UK Anti-terrorism legislations: necessary and proportionate?

“Free speech, exercised both individually and through a free press, is a necessity in any country where people are themselves free.”
Theodore Roosevelt, 1918

The right to freedom of expression and protest, upheld in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), and Articles 10 and 11 of the Human Rights Act, are crucial in any democracy as they encourage political debate and democratic participation.  They are also essential in ensuring Government’s accountability and transparency. Limitations of such rights are lawful only insofar as they are proportionate and necessary in a democratic society.

Yet in the last decade, civil liberties in the UK specifically relating to the right to freedom of expression and peaceful assembly have been increasingly eroded by anti-terrorism legislation, including:

Section 44 of the Terrorism Act 2000, ruled illegal by the European Court of Human Rights (Gillan and Quinton v. UK 4158/05 [2010] ECHR 28, 12 January 2010), allows police to use terror laws to stop and search people without grounds for suspicion. Its powers, although deemed incapable of ensuring adequate legal safeguards against abuse and considered potentially discriminatory by the ECtHR ruling, are routinely used by police forces against legitimate demonstrators. Such legislation is a direct breach of Articles 9, 19 and 21 of the ICCPR as the sweeping use of stop-and-search powers by police in the context of public protests and demonstrations, amounts to a disproportionate interference with the rights to liberty, freedom of assembly and freedom of expression.

Serious Organised Crime and 2005 Police Act, bans unauthorised protests within one kilometer of Parliament, widens anti-social behaviour orders, commonly referred to as ASBOs, and increases police powers against protesters’ action, infringing on basic human rights guarantees, including the right to peaceful assembly.

Terrorism Act 2006 creates the offence of ‘encouragement’ of terrorism which, according to the human rights NGOs Liberty and Justice, represents a direct violation of Article 19(2) of the ICCPR. Furthermore, they point out that the 2006 Act is incompatible with the 1996 Johannesburg Principles on National Security, Freedom of Expression and Access to Information, whereby the notion of ‘intent’ is a vital element of any speech offence. Speech itself is not criminal and it should only become punishable if others are expected to commit offences as a result of what one says. Section 1 of the Terrorism Act 2006 does not include such a fundamental element.

In November 2005, the UN High Commissioner for Human Rights, Ms Louise Arbour, wrote to the UK government, highlighting how ‘the draft offence contained in clause 1 fails to strike a balance between national security considerations and the fundamental right of freedom of expression.’

Her opinion was shared by the Joint Committee on Human Rights who, two years later, noted that: ‘the creation of the offence of encouragement of terrorism in its current form will have an inhibiting effect on legitimate freedom of expression and will therefore lead to disproportionate interferences with free speech’.

The breach of fundamental freedoms, enshrined in international legal agreements is often threatened by country leaders in their attempt of ensuring national security in face of the ‘terrorist threat’.

Life on earth is fraught with manmade and natural disasters, with the latter having devastating impacts, as the recent events of Haiti and Pakistan have demonstrated. Preparedness for such shocking episodes has steadily improved over the years; the response is considered, compassionate, and generally focused on recovery.

War, a manmade disaster, leaves more scars, but in time it too can often devolve into reconciliation and reconstruction. What is so unique about terrorism that it gives rise to such a different response, one arising out of the concept of fear, that has such detrimental effects on our civil liberties and leads to increased discrimination against ethnic minorities?

 The 2006 International Commission of Jurists (ICJ) report on counter-terrorism legislation accuses the US and the UK of undermining the framework of international law. In a BBC interview last year, former Irish president Mary Robinson, the president of the ICJ said: ‘Seven years after 9/11 it is time to take stock and to repeal abusive laws and policies enacted in recent years. Human rights and international humanitarian law provide a strong and flexible framework to address terrorist threats’.

 The ‘fear of terror’ has been strategically exploited by UK ministers trying to bring in laws that restrict the rights to freedom of speech and association, limiting the UK citizens’ capacity to actively contribute in the democratic process…is this really the democracy that Roosevelt had envisaged in 1918?

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