The United Kingdom’s Home Office has published its Review of Counter-Terrorism and Security Powers: Review Findings and Recommendations, an analysis of British counter-terrorism measures – including pre-charge detention, control orders, deportation of foreign nations, stop and search, and surveillance – in light of the country’s Human Rights Act and obligations under the European Convention on Human Rights. [UK Human Rights Blog]
Aspects of the British anti-terror regime have come under judicial scrutiny on several occasions. See, e.g., Secretary of State for the Home Department v AF & Anor, decided by the UK House of Lords on June 10, 2009, and requiring that an individual subject to a control order be given sufficient information about the evidence supporting the order to be able to give “effective instructions” to his or her special advocate, as mandated by the European Court of Human Rights’ Grand Chamber decision in A and Others v. United Kingdom, App. No. 3455/05 (Feb. 19, 2009). The decision in AF led the England and Wales Court of Appeal to later hold, in AN v Secretary of State for the Home Department [2010] EWCA Civ 869 (28 July 2010), that control orders which the government had revoked in order to avoid revealing their evidentiary basis should quashed as invalid ab initio, giving way to the possibility of compensatory damages for the former controlees.
The Home Office’s Review finds that some current counter-terrorism measures are “neither proportionate nor necessary”, in contravention of the European Convention on Human Rights, and recommends: that the standard maximum pre-charge detention be reduced from 28 to 14 days; stricter control over and definition of police authority to carry out indiscriminate (not based on individualized suspicion) searches within designated geographic and temporal constraints; clearer guidance on when law enforcement can prevent people from taking photographs; that judicial approval be required for local authorities’ use of surveillance techniques; clarification of the legal bases for obtaining communications data; that the definition of terrorism not be broadened in an attempt to include groups that incite hatred or violence; ramped up deportation efforts; and, “[t]he end of control orders and their replacement with a less intrusive and more focused regime”. Review of Counter-Terrorism and Security Powers: Review Findings and Recommendations, p. 5-6, 32. The report’s recommendations will only be put into practice if the (soon-to-be-proposed) legislation is approved by Parliament. British rights groups, such as Liberty, have criticized the proposed reforms as insubstantial, arguing that the new version of control orders will still permit significant restriction of the rights of individuals not charged with any crime. [Independent]