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The Decline of Dualism: the Relationship Between International Human Rights Treaties and the United Kingdom's Domestic Counter-Terror Laws

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The Decline of Dualism: the Relationship Between International Human Rights Treaties and the United Kingdom's Domestic Counter-Terror Laws The Decline of Dualism: The Relationship Between International Human Rights Treaties and the United Kingdom's Domestic Counter-terror Laws by Craig William Alec Webber Submitted in accordance with the requirements for the degree of Doctor of Laws at the University of South Africa Promoter: Professor Neville Botha November 2012 DECLARATION I declare that ‘The Decline of Dualism: The Relationship Between International Human Rights Treaties and the United Kingdom's Domestic Counter-terror Laws’ is my own work and that all the sources that I have used or quoted have been indicated and acknowledged by means of complete references. ii ACKNOWLEDGEMENTS I would like to thank my promoter, Professor Neville Botha for his exceptionally instructive and meticulous supervision. I have learned a great deal under his careful direction. I would also like to thank my parents and family and especially my Mother for her support, both practical and financial. I also wish to acknowledge Paul Tosio, who was regularly called upon to apply his considerable intellect to matters which fall well outside his many areas of interest. I dedicate this thesis in memory of my grandfather William Currin, who so enjoyed attending his grandchildren’s graduation ceremonies. Craig Webber Cape Town: November 2012 iii SUMMARY In the first half of the 20th Century, the United Kingdom’s counter-terror laws were couched extremely broadly. Consequently, they bestowed upon the executive extraordinarily wide powers with which it could address perceived threats of terrorism. In that period of time, the internal affairs of any state were considered sacrosanct and beyond the reach of international law. Consequentially, international human rights law was not a feature of the first half of the 20th Century. Following the war, however, international human rights law grew steadily, largely through the propagation of international treaties. As the 20th Century progressed, the United Kingdom became increasingly involved in international human rights law, particularly by way of the ratification of a number of treaties. Prior to the year 2000, none of these treaties had been directly incorporated into the United Kingdom’s municipal law. The traditional Dualist understanding of the relationship between international treaty law and municipal law in the United Kingdom, would hold that these unincorporated human rights treaties would form no part of that state’s domestic law. This Dualist assumption is called into question, however, by a legislative trend which neatly coincides with the United Kingdom’s increased involvement with international human rights. This trend consists of two elements, firstly, the progressively plethoric and specific ways in which the United Kingdom began to define its anti-terror laws. The specificity in which this legislation was set out curtailed the executive’s powers. The second element is that, over time, the United Kingdom’s counter-terror laws increasingly began to include checks and balances on the executive. There is a clear correlation between these trends and the United Kingdom’s evolving relationship with international human rights law. That nation’s enmeshment with international human rights law from 1945 onwards is undeniably linked with the parallel evolution of its domestic counter-terror laws. iv One of the grounds on which the status of international law is questioned is that it is ineffectual. This thesis calls such arguments into question, as it shows that international human rights treaties have meaningfully impacted on the United Kingdom’s evolving counter-terror laws and thereby successfully enforced the norms they advocate. KEY TERMS International law International human rights law Monism Dualism United Kingdom Northern Ireland Terrorism September 11th Counter-terror laws Transnational legal process v INDEX CHAPTER 1 INTRODUCTION 1. Theoretical Framework 1 1.1 Naturalism, Positivism and the Scope of 1 International Law 1.2 Traditional Critiques of International Law as 4 Real Law 1.3 Dualist and Monist Theories of International 15 Law 1.4 Theories of Co-ordination and Harmonisation 19 1.5 Transformation and Delegation Theories 21 1.6 Legal Pluralism 22 1.7 The Relationship Between the United Kingdom’s 23 Municipal Law and International Law 1.8 Defining Terrorism 28 1.9 Balancing Security and Liberty 37 2. Academic Context of the Research 41 3. Historical Context of the Research 43 vi 4. Research Methodology 44 CHAPTER 2 THE UNITED KINGDOM’S 20TH CENTURY COUNTER-TERROR LAWS 1. The Defence of the Realm Acts 1914-1915 48 1.1 Background 48 1.2 Legislation 49 1.3 Cases 54 2. The Restoration of Order in Ireland Act 1920 58 2.1 Background 58 2.2 Legislation 60 2.3 Cases 62 3. The Civil Authorities (Special Powers) Acts 66 (Northern Ireland) Acts 1922 – 1943 3.1 Background 67 3.2 Legislation 67 3.3 Cases 71 4. The Prevention of Violence (Temporary Provisions) 74 Act 1939 vii 4.1 Background 74 4.2 Legislation 75 4.3 Cases 77 5. The Northern Ireland (Emergency Provisions) 77 Acts 1973 – 1996 5.1 Background 77 5.2 Legislation 79 5.3 Cases 86 6. The Prevention of Terrorism (Temporary Provisions) 93 Acts 1974 – 1989 6.1 Background 93 6.2 Legislation 94 6.3 Cases 99 7. Conclusion 111 CHAPTER 3 117 THE UNITED KINGDOM’S 21ST CENTURY COUNTER-TERROR LAWS 1. The Terrorism Act 2000 117 1.1 Background 117 viii 1.2 Legislation 117 1.3 Cases 125 2. The Anti-terrorism, Crime and Security Act 2001 130 2.1 Background 130 2.2 Legislation 131 2.3 Cases 137 3. The Prevention of Terrorism Act 2005 148 3.1 Background 148 3.2 Legislation 149 3.3 Cases 153 4. The Terrorism Act 2006 163 4.1 Background 163 4.2 Legislation 164 4.3 Cases 168 5. The Counter-Terrorism Act 2008 169 5.1 Background 169 5.2 Legislation 170 ix 5.3 Cases 174 6. Terrorism Prevention and Investigation Measures 175 Act 2011 6.1 Background 175 6.2 Legislation 176 6.3 Cases 180 7. Protection of Freedoms Act 2012 184 7.1 Background 184 7.2 Legislation 186 7.3 Cases 190 8. Conclusion 190 CHAPTER 4 INTERNATIONAL HUMAN RIGHTS LAW AND THE UNITED KINGDOM’S COUNTER-TERROR LAWS 1. Introduction 192 2. International Human Rights Law and the United 193 Kingdom’s Counter-terror Laws Prior to 1945 2.1 The Origins of International Human 194 Rights Law x 2.2 International Law and the United Kingdom’s 195 Counter-terror Laws: 1900 to 1944 3. International Human Rights Law and the United 196 Kingdom’s Counter-terror Laws from 1945 to 1975 3.1 The United Nations Charter 196 3.2 The Universal Declaration of Human Rights 197 3.3 The European Convention on Human Rights 198 3.4 International Law and the United Kingdom’s 200 Counter-terror Laws: 1945 to 1975 4. International Human Rights Law and the United 202 Kingdom’s Counter-terror Laws from 1976 to 1984 4.1 The International Covenant on Civil and 202 Political Rights 4.2 The European Court 205 4.3 Human Rights Committee: First Periodic 216 Report of the United Kingdom 4.4 International Law and the United Kingdom’s 219 Counter-terror Laws: 1976 - 1984 5. International Human Rights Law and the United 221 Kingdom’s Counter-terror Laws from 1985 to 1999 5.1 The Convention against Torture and 221 xi Other Cruel, Inhuman or Degrading Treatment or Punishment 5.2 Human Rights Committee: Second Periodic 224 Report of the United Kingdom 5.3 The European Convention for the Prevention 228 of Torture and Inhuman or Degrading Treatment or Punishment 5.4 The European Court 229 5.5 The International Convention on Civil and 232 Political Rights 5.6 The European Court 232 5.7 Human Rights Committee: Third Periodic 234 Report of the United Kingdom 5.8 Committee against Torture: First Periodic 238 Report of the United Kingdom 5.9 The European Court 242 5.10 European Committee for the Prevention of 245 Torture and Inhuman or Degrading Treatment or Punishment: Report of 1993 Visit 5.11 The European Court 246 5.12 The European Convention on Human 251 Rights xii 5.13 Human Rights Committee: Fourth Periodic 251 Report of the United Kingdom 5.14 Committee against Torture: Second Periodic 252 Report of the United Kingdom 5.15 The European Court 253 5.16 Committee against Torture: Third Periodic 255 Report of the United Kingdom 5.17 European Committee for the Prevention of 256 Torture and Inhuman or Degrading Treatment or Punishment: Report of 1999 Visit 5.18 International Law and the United Kingdom’s 258 Counter-terror Laws: 1985 - 1999 6. International Human Rights Law and the United 261 Kingdom’s Counter-terror Laws From 2000 to 2005 6.1 The European Court 261 6.2 The Human Rights Act 1998 265 6.3 The International Covenant on Civil and 267 Political Rights 6.4 Human Rights Committee: Fifth Periodic 268 Report of the United Kingdom 6.5 The European Court 269 6.6 European Committee for the Prevention of 273 xiii Torture and Inhuman or Degrading Treatment or Punishment: Report of the 2002 Visit 6.7 The European Convention on Human Rights 276 6.8 European Committee for the Prevention of 276 Torture and Inhuman or Degrading Treatment or Punishment: Report of the 2004 Visit 6.9 Committee against Torture: Fourth Periodic 279 Report of the United Kingdom 6.10 The European Convention on Human Rights 281 6.11 The European Convention on Human Rights 281 6.12 European Committee for the Prevention of 281 Torture and Inhuman or Degrading Treatment or Punishment: Report of the First 2005 Visit 6.13 European Committee for the Prevention of 283 Torture and Inhuman or Degrading Treatment or Punishment: Report of the Second 2005 Visit 6.14 International Law and the United Kingdom’s 284 Counter-terror Laws: 2000 - 2005 7.
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