Theresa May puts Human Rights Laws in the Firing Line

6 Jul 2017

Earlier this month, Prime Minister Theresa May once again put human rights laws in the firing line. In a comment made in a speech on the eve of the 2017 General Election and less than a week after the London Bridge attack, she vowed to beef up counter-terror powers by restricting “the freedom and the movements of terrorist suspects when we have enough evidence to know they present a threat, but not enough evidence to prosecute them in full in court . . . And if human rights laws stop us from doing it, we will change those laws so we can do it.”

What Theresa May is referring to here are Terrorism Prevention and Investigation Measures known as Tpims, which place restrictions on where a person can live, who they can spend time with, their access to phones or computers, where they can travel to, and so on.  The Home Secretary can impose a Tpim where she has reasonable grounds to believe the person to be involved in terrorist activity.

Following the failure of control orders, Tpims are the Home Office’s second attempt at a legal mechanism that places restrictions on those who the Security Services suspect may go on to commit a terrorist attack, but where they lack the evidence to prosecute them.

Most lawyers will remember control orders, the Tpim’s predecessor, which were widely criticised, not least by the Supreme Court in a successful challenge in 2010. In Secretary of State for the Home Department v AP the Appellant, an Ethiopian national, was subjected to a control order that confined him to a flat for 16-hours a day and forcibly relocated to a town 150 miles from his family. Lord Brown gave the lead judgment holding that a control order is a deprivation of liberty in breach of Article 5, in conjunction with the breach of Article 8 right to respect for private and family life.

Following the Supreme Court decision, and urged on by the Conservative Party’s coalition partner, the Liberal Democrats, then-Home Secretary Theresa May scrapped control orders in 2010. In their place, Tpims were meant to be more effective and significantly, compliant with human rights law.  The number of hours someone had to spend in their home was reduced, and you could no longer be forced to move away from your family and community.

These concessions were short lived. In 2015, the Counter Terrorism and Security Act reinstated the condition of forced relocation, added further restrictions on the ability to travel and required the person to attend appointments to aid de-radicalisation.

Turning back then to Prime Minister’s comment, it seems she has made two assumptions.  First, that there is a large group of people who are a threat to national security but have not committed any crimes and the only way to prevent them launching an attack is to impose restrictions on their freedom.

Second, if we rip up human rights laws, more stringent conditions can be imposed on those who have been radicalised.

Unfortunately for the Prime Minister, the data undermines the first assumption. Tpims, like control orders, have never been widely used.  Between 2005 and 2011, only 52 people were subject to control orders.  By the end of 2011, only 9 were in force.  This number dropped to three by August 2015.

Perhaps one of the reasons why they have never been widely used is the breadth of current terrorism legislation, which means that where someone does pose a threat, their freedom can usually be curtailed using other methods. For example, Schedule 7 of the Terrorism Act 2000 gives the power to stop and search a person at an airport, to search their belongings and hold them up to nine hours, without the need to suspect that person of involvement in terrorism of other criminal activity. Where someone is suspected of committing a terrorism offence, they can be detained and questioned for 14 days prior to being charged  (the limit for non-terrorism offences is 72 hours).  On top of this, the Act also criminalises a wide range of acts from being in possession of information that would be useful to someone committing or preparing an act (Section 58), to funding terrorist organisations (Section 17) to preparing for an attack (Section 57). It seems possible that Tpims are not as necessary to counter-terrorism as Theresa May’s comment suggests.

Turning then to Theresa May’s second assumption that human rights laws could be changed to allow for more stringent conditions to be imposed; she again gets into difficulty. Even if dramatic steps were taken to repeal the Human Rights Act and withdraw from the European Convention of Human Rights, would it then be possible to subject someone to a curfew 16 hours or more? Possibly not. The English common law of habeas corpus mandates the deprivation of liberty is prima face unlawful. These principles were affirmed in the landmark Hardial Singh case, decided in 1984 without reference to the ECHR, imposed limits on when someone can be detained.  These limits mean that a person can only be detained for a set period of time and for a reasonable period.  It is arguable that even without the Human Rights Act, cases like Hardial Singh and the doctrine of habeas corpus may place limits on the Prime Minister’s ability to curtail people’s freedom of movement.

Given the legal difficulties in imposing more stringent restrictions on terrorism suspects, the practical problems with Tpims as they currently stand, and their lack of use over the preceding twelve years, it is hard to see Tpims as the key to reducing the threat of terrorism in the UK.

To read the full article, as featured in Lawyer Monthly, please click here.