The Continuing Futility of the Human Rights Act

Abstract

One of the most dramatic and contentious measures introduced immediately after 9/11 was the power to detain suspected international terrorists indefinitely, on the say-so of the security service. Detention without trial is an extreme measure in any country at any time, and it is one that was used in Britain on only two occasions in the 20th century. The occasions for such drastic action were the First and Second World Wars, when German nationals and others were locked up. In both cases the detentions gave rise to legal challenges, which in both cases were unsuccessful, the House of Lords in each case coming down uncompromisingly in favour of security at the expense of liberty.1 Otherwise, powers of detention have been used in Northern Ireland, with the internment of IRA suspects taking place at various points throughout the 20th century, and most recently in 1969. Internment without trial, however, was held by the European Court of Human Rights to be a breach of the European Convention on Human Rights (ECHR),2 though the power to intern long survived its use in practice. But no sooner had these powers been removed by the Terrorism Act 2000 than fresh powers of internment were taken,3 this time directed at foreign nationals based in the United Kingdom, who could not be deported because of the decision in Chahal v United Kingdom.4 The practice of detention