Terrorism is understandably marked as one of the biggest threats to the safety of the UK. It is callously used as a way to convey the message of abhorrent organisations and to spread fear in the wider public. In the UK the level of this threat has always varied, but since the turn of the century there has been a marked change, both in terms of motives and techniques. The terrorist incident in Reading last weekend was just the latest example of this; committed by a ‘lone-wolf’ attacker in a relatively low-tech manner. This must be condemned in the strongest possible way and every support given to those affected and their families. However, attention must now be given to the revived debate surrounding the relationship between human rights and terrorism, and why, in the face of terrorism, human rights must stay universal.
Where are our human rights derived from and why are we afforded them?
To understand the relationship between human rights and terrorism it is best to first establish where our human rights come from. In the UK, our human rights are mainly derived from the European Convention on Human Rights 1953 (ECHR) which was drafted by the Council of Europe. The rights conferred on individuals through the ECHR have to be upheld by the State and a State can be held to account at the European Court of Human Rights (ECtHR) if they have failed to do so. In 1998, human rights were further protected in the UK when the rights contained in the ECHR were incorporated into our own domestic legislation in the form of the Human Rights Act (HRA). This allowed individuals in the UK to hold the State to account in our own courts; a move which meant a long and costly trip to the ECtHR could be avoided.
We are afforded human rights as guarantees, enabling us to meet our basic needs and ensuring that we are protected from those that are more powerful. The human rights we hold because of the ECHR and HRA are numerous and include the right to life, liberty and security, and freedom of religion, expression and association. Fundamentally, all of our human rights share two characteristics: they are conferred on the individual and must be upheld by the State, and they are universal and apply regardless of an individual’s choices and circumstances. The former is essential to ensure a just society and acts as a check on power for States whose legislation may contravene human rights. In a similar light, the latter characteristic of universality prevents abuses of power by ensuring a State does not have the power to confer or withhold human rights arbitrarily. Winston Churchill knew all too well what could happen when these checks were not imposed on States, hence his support for a Charter of Rights and his involvement in drafting the ECHR. Nonetheless, some continue to question whether human rights law hinders our fight against terrorism.
Human rights and terrorism
When it comes to counter-terrorism there is a common misconception that human rights law limits the governments ability to act effectively. As I have mentioned, human rights are universal and apply to everyone which can sometimes be interpreted as providing protection to terrorists. The reality is that human rights invariably contain derogations, essentially situations whereby a State can act without breaching human rights. These prevent catch-22 situations where a State would otherwise have to choose between whose human rights to breach and make counter-terrorism measures impossible. Far from limiting governments, human rights law actually ensures that a government is obliged to do all in their power to protect us from terrorism. The ECHR was drafted on the basis that it would protect individuals from abuses by the State, but also ensures that the State is obliged to protect their own citizens from the unlawful action of others as far as is possible.
This point is demonstrated when considering the basis for counter-terrorism measures. In the UK, the extent of measures taken by the government are a direct result of their human rights obligation to proactively protect the lives of those in their nation. We are afforded the right to life through Article 2 of the ECHR and this includes taking necessary steps to foil any terrorist attacks. In addition, Article 2 contains a derogation which ensures the right to life is not absolute as this would prevent effective counter-terrorism measures. Article 2(2)(a) of the ECHR ensures that deprivation of life is not considered to have happened in contravention of Article 2(1) in the event of protecting individuals from unlawful violence when absolutely necessary. This was seen in 2019 when armed police legally killed a terrorist attacker on London Bridge in the interest of protecting the lives of bystanders. By both conferring the right to life and allowing derogations when absolutely necessary human rights provides protection by allowing a State to take necessary steps in preventing terrorism.
This is a pattern that is seen throughout human rights legislation as humanity underpins all of its provisions. Article 8 of the ECHR, the right to respect for private and family life, further exemplifies this. The right to private life is broad and ecompasses a range of activities, including privacy for social, cultural and economic aspects of life. The right to privacy is essential to ensure that the government cannot interfere in our lives and provides the autonomy that makes us individual. However, like the right to life, this right is not absolute and counter-terrorism measures may lead to derogation. The ECtHR has accepted that counter-terrorism measures will invariably include techniques such as phone tapping, the use of undercover agents and numerous other surveillance tactics. This means in the interest of national security a State can conduct many of these measures whilst continuing to respect the right to private life. The statistics suggest that this balance is effective as by the end of last year 24 terrorist attacks had been foiled in the UK since April 2017.
Whilst the derogations above outline the flexibility of human rights law, it is true that this does not extend to all rights. Article 3 of the ECHR, the freedom from torture, is absolute because there is no legitimate circumstance where it is justifiable to torture someone. It has been argued that this protects terrorists because it prevents the deportation of non-national criminals if there is a material risk that they would be tortured in their home nation. However, this is because of a key protection mechanism of human rights whereby a State is not arbiter of who deserves rights. There would be significant scope for abuse if this were the case and we would have far greater problems than terrorism. In a scenario where a State could legitimise bypassing human rights in the name of terrorism there is nothing to avoid them using this power to surveil political opponents, silence those who speak out against them and imprison dissenters, simply by invoking terrorist suspicions. It is essential that we deal with terrorism but this should be done with robust domestic anti-terror legislation. We have these laws, they apply equally to national and non-national terrorists, and we should continue to ensure we use them to punish terrorists for their crimes. If these measures are insufficient there remains scope for tougher sentences, but providing the State with carte blanche powers to decide who deserves rights would create more harm than good.
Despite the clear role of human rights law in fighting terrorism there are still some that believe the UK should exit the ECHR. I believe this move would be counterintuitive. There is definitely a balance which needs to be struck between upholding human rights and counter-terrorism measures, but the ECHR demonstrates that this is possible. The rights we are conferred through the ECHR form the basis of the governments fight against terrorism and the freedom of derogation enables them to do this efficiently. By removing the protection of the ECHR we would only be leaving ourselves more vulnerable to abuses from terrorists and State alike. We must equally avoid the temptation to allow governments to remove the human rights of terrorists. Whilst this notion may gain support it would place too much arbitrary power in the hands of those which human rights aims to provide protection from. This would lead to a situation where anyone could be labelled a terrorist simply to remove their human rights, powers which could even be used to silence political opponents. The universality of human rights works to keep the door closed to tyranny and we should not open it in on the pretence of fighting terrorism.