Helen Fenwick

The impact of counter-terrorism measures on Muslim communities

Concerns have been raised that counter-terrorism laws and policies are increasingly alienating Muslims, especially young people and students, and that counter-terrorism measures may themselves feed and sustain terrorism. This paper relies on extracts from a report on this issue commissioned by the Equality and Human Rights Commission to develop and deepen understanding of the impact of counter-terrorism legislation and policies in general, and on Muslim communities in particular. Building on existing studies, this report contributes to the research and wider public discussion of this matter through an examination of the experiences of counter-terrorism legislation and policies on Muslim communities in four local areas across Britain and interviews with practitioners and officials at a national and local level. The areas focused on relate in particular to various uses of technology to further counter-terror strategies and the reaction to them of those interviewed.

Breach of Confidence as a Privacy Remedy in the Human Rights Act Era

This article examines the impact of the Human Rights Act (HRA) on the current lack of a remedy for non-consensual publication of personal information by the media. It argues that the action for breach of confidence is now ripe for development into a privacy law in all but name and that the normative impetus for this enterprise can be found in the HRA which will require domestic courts to consider Convention jurisprudence. It will suggest that when Strasbourg decisions are examined in the context of more general Convention doctrines, they may be seen to suggest the need for an effective privacy remedy. Drawing upon approaches from other jurisdictions it seeks to demonstrate that principled solutions may be found to the thicket of legal problems associated with such development. It contends that the main objection to this enterprise, the perceived threat to media freedom, is largely misplaced, as analysis at the theoretical and doctrinal levels reveals that speech and privacy interests are in many respects mutually supportive and the areas of conflict small and readily susceptible to resolution.

Designing ETPIMs Around ECHR Review or Normalisation of ‘Preventive’ Non‐Trial‐Based Executive Measures?

This article considers the transition in 2012 from control orders to more ECHR-compliant ‘terrorism prevention and investigation measures’ under the Terrorism Prevention and Investigation Measures Act 2011. It argues that the interaction between security and liberty over the post 9/11 years has the appearance of a dialogue between courts and the executive that has resulted in a diminution in the repressive character of non-trial based preventive measures. But such an impression, it will be contended, is obscuring the recalibration of ECHR rights that has occurred, easing the path to the introduction of the enhanced version of TPIMs, under the Enhanced Terrorism Prevention and Investigation Measures Bill. The proposed ETPIMs exhibit many of the objectionable features of control orders and are currently ready to introduce if the threat level rises.

Counter-terror strategies, human rights and the roles of technology

9/11 re-shaped the counter-terrorist response in the UK. After 9/11, the ‘war on terror’ was viewed, as ‘not a matter of choice but a strategic imperative’.1 Thus, the response has been heavily inf...

Text, cases and materials on public law and human rights

1. Constitutional Theory and the British Constitution after Devolution 2. The Nature and Role of Constitutional Conventions 3. The Rule of Law and the Separation of Powers 4. Parliamentary Sovereignty 5. The European Union and Parliamentary Sovereignty 6. Devolution 7. The European Convention on Human Rights 8. The Commons: Elections, Parties, Legislation and Scrutiny 9. The House of Lords and Reform 10. Parliamentary Privilege 11. Prerogative Powers 12. The Central Executive: Structures and Accountability 13. Official Secrecy and Access to Information 14. Judicial Review: Availability, Applicability, Procedural Exclusivity 15. Grounds of Judicial Review 16. Ombudsmen 17. The Traditional Protection of Civil Liberties in Britain and the Impact of the Human Rights Act 1998 18. Freedom of Expression 19. Freedom of Assembly, Public Protest and Public Order 20. Police Powers

Proactive counter-terrorist strategies in conflict with human rights

Three standard governmental policy responses to terrorism have been identified: a military one, treating the fight against terrorism as a form of warfare; a police-based one, treating it simply as a form of criminal activity, to be detected and then defeated using (perhaps some modified version of) the criminal justice system; and a political one, viewing it as a form of armed rebellion to be resolved through negotiation and the political process. All three responses to terrorism may be evident in any particular instance.

Confidence and Privacy: A Re-Examination

The flexibility of the doctrine of confidence and its adaptability to illsorted and disparate situations has often attracted academic attention, but although it continues to develop, its ability to protect privacy has not perhaps been sufficiently emphasised in recent discussions of both privacy and confidence,despite the debate generated by the (recently abandoned) proposals for a new tort of invasion of privacy. The notion that developments in the doctrine of confidence could properly render it apt to protect privacy came under attack by Wilson in 1990 on the ground that legal obligations to maintain confidence of intolerably uncertain scope might arise as a result of the normal incidents of social life and friendship.

Responding to the ISIS threat: extending coercive non-trial-based measures in the Counter-Terrorism and Security Act 2015

This article evaluates certain recent changes in counter-terror law and policy in response to rising threats to security in recent years, often associated with the activities of supporters of ISIS or similar groups, or suspected supporters. A range of security concerns and policy strands led to the introduction of a number of new counter-terror measures in the Counter-Terrorism and Security Act 2015. This article does not set out to provide a comprehensive examination of the Acts provisions, but covers its extension of coercive non-trial-based measures aimed at terrorist suspects generally, but particularly at persons who have gone abroad to support ISIS or may seek to do so: the introduction of Temporary Exclusion Orders, excluding persons suspected of travelling to Syria to fight with ISIS from the UK temporarily, travel restrictions, and the strengthening of TPIMs (a form of ‘light touch’ control order). This article considers, in the aftermath of the November 2015 Paris massacre, the roles to be played by the new and planned measures in terms of increasing security, and the extent to which their design has also been influenced by the ECHR, taking account of relevant jurisprudence under the Human Rights Act and at Strasbourg.

Reconciling International Human Rights Law with Executive Non-trial-Based Counter-Terror Measures: The Case of UK Temporary Exclusion Orders

Non-trial-based measures, in particular executive detention, have at various times been resorted to by democracies as part of their counter-terror strategies. Western democracies are facing an unprecedented rise in ‘home-grown’ terrorism; the threats they currently face come mainly from their own citizens. Non-trial-based measures—control orders, TPIMs and now temporary exclusion orders—have been designed to test the limits of human rights’ law, in particular of the substantive rights to liberty, freedom from torture or inhuman or degrading treatment, and to private life, but to seek to avoid violating them. But in so doing, they have tended to rely on a minimising recalibration of such rights, since the choice has been made not to accompany the measures with derogations, after a derogating measure, detention without trial, for use only against non-citizens, was found to breach aspects of the ECHR in 2004. Post-2005 reliance on more repressive non-trial-based measures that would clearly or possibly have necessitated a derogation has been accepted by Parliament, but not so far actioned. As has been pointed out many times, reliance on such measures, as a recourse running alongside the criminal process, tends to undermine the moral legitimacy of the use of state power as compared to the claims of terrorists and represents a departure from expected and assumed adherence to constitutional values in a democracy. The unease with which democracies approach the use of such measures, especially against their own citizens, is the subject of this paper, which focuses on their use and underuse over the past ten years in the UK. It argues that the desire to maintain constitutionality while protecting security creates compromises which mean that use of such measures satisfies neither objective: a cycle arises within which a more repressive iteration of the measure is introduced unaccompanied by a derogation, necessitating a recalibration of rights to accommodate it, combined with executive self-restraint in deploying it; human rights-based court and Parliamentary decisions then ‘ameliorate’ the measure and normalise it, but at the same time arguably diminish its efficacy and it falls further into dis-use; security concerns then demand the reintroduction of a more repressive iteration of the measure, threatening to restart the cycle.

Protecting free speech and academic freedom in universities.

This article interrogates restrictions on speaking events in universities created both by recent student-led efforts at ‘no-platforming’ and by Part 5 of the Counter-terrorism and Security Act 2015 which placed aspects of the government’s existing Prevent strategy on a statutory basis for the first time. The statutory Prevent duty as it applies in universities includes, under the accompanying Guidance, curbing or monitoring such events on the basis that they could have an impact in drawing persons into terrorism. This article will place the combined impact of Part 5 and student-led curbs on campus speech in context by juxtaposing a range of pre-existing restrictions with the various free speech duties of universities. Focusing on speaking events, it sets out to evaluate the results of this chequered situation in terms of the current state of free speech and academic freedom in universities. It finds potential violations of established free speech norms due to the impact of pre-emptive strikes against some campus-linked speech articulating non-mainstream viewpoints. But it also argues that not all such speech has a strong foundation within such norms.