Response to Government Consultation Paper on Legislation Against Terrorism
3rd March 1999
1. INTRODUCTION
1.1 British Irish Rights Watch is an independent non-governmental organisation and registered charity that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.
1.2 We welcome this opportunity to respond to the governments consultation paper on legislation against terrorism.
1.3 In the course of our work over the past nine years we have made an in-depth study of the effects of the emergency laws put in place in response to the Northern Ireland conflict. We have concluded that such laws are unnecessary and ineffective, they contravene international human rights law and they damage the very fabric of civil society and democracy.
1.4 It follows that we are opposed to the introduction of permanent counter-terrorism legislation. In this submission we set out our reasons for that opposition. We also comment on the specific proposals on which the government has sought comments.
2. CONSTITUTIONAL OBJECTIONS
2.1 As advocates of respect for international human rights law, we regard the unwritten constitution by which the United Kingdom is governed as an anachronism. The theory underpinning the unwritten constitution is that everything is permissible unless it is prohibited by law. The difficulty with such a theory is that in practice positive rights are never articulated or defined, while a body of legislation is developed which is focused on denying and/or limiting rights.
2.2 The development of existing counter-terrorism laws is a case in point. Draconian powers have been adopted and extended through a succession of Acts of Parliament, all of which have considerable impact on fundamental human rights and freedoms, such as the right to a fair trial and the right to liberty and security of person. Yet there are currently no countervailing mechanisms whereby people can exercise or assert their positive rights.
2.3 The forthcoming incorporation into domestic law of the European Convention on Human Rights will go some way to ameliorating this situation. However, it will by no means cure it altogether. In particular, the failure to take the opportunity to discontinue the United Kingdoms derogation from Article 5 (3) of the Convention on account of prolonged detention under the Prevention of Terrorism Act is acutely disappointing. Furthermore, in the absence of a Bill of Rights to update the Convention, not all rights will be specifically articulated. For example, while the Convention specifically protects the presumption of innocence by virtue of Article 6 (2), it makes no mention of the right to remain silent. Although in our view the existing laws abrogating the right of silence are clearly in breach of international human rights norms on the right to a fair trial[1]