Prime minister Theresa May has announced her resolve to tear up human rights law if it prevents her, and her government, from tackling extremism and countering terrorism.
This rhetoric is hardly new. It echoes Tony Blair’s post 9/11 claim that “the rules of the game are changing”. It’s also a continuation of May’s approach as home secretary. Over her term in that role, she systematically sought to dismantle legal barriers to desired government action. Indeed, it chimes well with longstanding concerns on the part of many Conservatives that human rights law is nothing more than an obstacle to security.
May’s proposal raises questions about what exactly the perceived shortfall in counter-terrorism powers is, why and how human rights law is said to prevent its resolution, and what the evidence for these claims is.
Nobody denies that we need laws to counter terrorism and prevent radicalisation. That includes having powers to investigate potential involvement in terrorist activity and criminal offences that try to ensure the state can intervene to prevent terrorist attacks.
However, one can hardly imagine a legal power that would effectively prevent people from launching low-tech attacks such as those at Westminster and London Bridge. Nor can one seriously claim that the arsenal of counter-terrorism powers is under-stocked. UK law contains extensive provisions to prevent and criminalise all forms of engagement with terrorism, including powers relating to data surveillance, disruption of terrorist financing, criminalisation of travelling for terrorist purposes, and the criminalisation of all forms of support for terrorist activities.
Human rights law has not prevented the UK from developing and implementing these laws. To be sure, there may be some things that the government would wish to do which human rights law has prevented, forcing the state to find other, human rights compliant, ways to achieve the same ends. However, that is hardly a basis for criticising the law – it is, in fact, precisely what human rights law (and all law) is supposed to do.
The whole idea of law is that it restrains not only what we can do as citizens and residents of the state, but also what the state can require us to do, prevent us from doing, and punish us for. If human rights law has forced the state to rethink or restrain some of its activities, that simply means the law is working.
This is the key point here. Human rights law doesn’t prevent the state from countering terrorism, but it does prevent the state from doing so in whatever way it pleases and without limitation.
Who do we want to be?
There is ample space within human rights law for the state to take muscular steps in the name of security. It can prevent people from travelling, adjust normal criminal procedures to protect intelligence, and restrict what people can say publicly in order to prevent the glorification of terrorism. It can limit how people associate and organise to prevent the emergence of terrorist groups, and restrict people’s ability to engage in certain behaviours online.
If a situation is truly grave – to the extent that it “threatens the life of the nation” as it says in article 15 of the ECHR – the state can even derogate from some rights. This means that, for a period of time and in order to restore “normalcy”, the state can limit the extent to which certain rights can be enjoyed. It can take actions that are ordinarily not permitted, provided those actions are limited to what is “strictly required by the exigencies of the situation”.
If, then, the government is arguing that human rights law is preventing it from countering terrorism it needs to identify what it is that it considers needs to be done. It must state how human rights law is preventing them from doing that. And it must first consider how the desired ends might be achieved through means that are compliant with human rights.
It may be that there are some things the state wants to do that human rights law will not permit – mass internment, expulsion of all non-citizens without distinction, the total shut down of the internet, retention and surveillance of the content of all communications, for example, would all likely fall foul of human rights law. If the government proposed such actions and was, indeed, obstructed by human rights, would we really say human rights law is getting in the way of our security? Or would we acknowledge that it is protecting us from government overreach?
This, of course, leads to the most difficult and fundamental question of all: what kind of society do we want to be? If it’s one where we strive for total security, then of course human rights law might rightly be identified as an obstacle. Total security cannot be achieved in a society where the rule of law, human rights, and democracy are respected and upheld as fundamental principles.
Thanks to these principles we are free to flourish and live in a vibrant, diverse, rights-respecting society. But even without these principles, total security is a myth; no amount of law can protect us from all threats all of the time.
Does this mean the state shouldn’t take steps to prevent terrorism? Of course not. But it does mean that the state should not be able to take whatever steps it considers necessary to prevent terrorism, regardless of the impact on rights.
It is the legal protection of human rights, together with a vibrant civil society and healthy democratic system, that sets the boundaries of permitted action and best equips us to build a resilient society in which terrorism can effectively be countered. Tearing up human rights law would put all of that in jeopardy.