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United Kingdom: Anti-Terrorism Laws Successfully Challenged Again

(June 22, 2009) The British government's anti-terrorism legislative regime has been challenged numerous times in the courts and has once again recently been dealt a near fatal blow by the House of Lords. The United Kingdom introduced control orders in 2005 after the House of Lords declared that its previous preventive detention regime was incompatible with the European Convention on Human Rights. Control orders impose bail-like conditions to limit the risk suspected terrorists pose to the national security of the UK in cases where they cannot be prosecuted or deported. These orders have been described as a “significant part of …[the UK's] defences against terrorism.” (Secretary of State for the Home Department v AF et al., [2009] UKHL 28, para. 70 per Lord Hoffman, http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090610/af-1
.htm
(last visited June 17, 2009).)

In the case just considered by the House of Lords, the part of the control orders' regime under challenge was individuals frequently being the subject of an order based upon evidence that they cannot view and that is typically not admissible in a court of law. In these instances, the individuals are represented by lawyers with security clearances who are known as Special Advocates.

The Law Lords of the House of Lords, sitting as a panel of nine as the highest court of the land, ruled that the above mentioned feature of control orders is contrary to the right to a fair trial enshrined in article 6 of the European Convention on Human Rights. Lord Hope of Craighead eloquently stated:

the consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him. (Id., para. 84.)

The government has stated that control orders will continue to remain in force while it considers other options available to it. (Prevention of Terrorism Act 2005, c. 2, http://www.opsi.gov.uk/acts/acts2005/ukpga_20050002_en_1 (last visited June 17, 2009); Frances Gibb, Disarray over Terror Control Orders After Law Lords Ruling on Secret Evidence, THE TIMES (London), June 11, 2009, available at http://www.timesonline.co.uk/tol/news/uk/article6469431.ece?token=null&a
mp;offset=0&page=1
; Clare Feikert, United Kingdom: Pre-Charge Detention for Terrorist Suspects, Law Library of Congress website, Oct. 2008, available at //loc.gov/law/help/uk-pre-charge-detention.php; European Convention on Human Rights, European Court of Human Rights website, http://www.echr.coe.int/ECHR/EN/Header/Basic+Texts/Basic+Texts/The+Europ
ean+Convention+on+Human+Rights+and+its+Protocols
(last visited June 17, 2009).)