Background Briefing

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This briefing considers the Terrorism Bill 2005 as amended by the House of Commons. It concentrates on two key matters: the offence of encouragement of terrorism (clause 1) and the increased pre-charge detention period (clauses 23 and 24).

Our analysis reflects the United Kingdom’s obligations under international human rights law, as enumerated in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (incorporated into domestic U.K. law through the Human Rights Act 1988) and the International Covenant on Civil and Political Rights (ICCPR).4 It also takes into consideration the four guiding principles set out by Lord Lloyd in his review of anti-terrorism legislation published in 1996, which remain highly relevant when assessing new legal measures in this area.5

Our analysis also takes account of a number of international instruments relating to human rights and anti-terrorist measures. These include: the 2002 Council of Europe’s Guidelines on human rights and the fight against terrorism,6 and United Nations Security Council resolution 1456, which emphasizes that:

States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.7

The analysis also reflects the 1995 Johannesburg Principles on National Security, Freedom of Expression and Access to Information.8 While not binding, the principles have been endorsed and followed by many international institutions, including the United Nations Human Rights Committee.

[4] The United Kingdom ratified the ECHR in March 1951 and the ICCPR in August 1976. The Human Rights Act 1988 entered into force on October 2, 2000 (date of commencement).

[5] Inquiry into Legislation against Terrorism (Cm.3420, London 1996), para.3.1: “(i) Legislation against terrorism should approximate as closely as possible to ordinary criminal law and procedure; (ii) Additional statutory offences and powers may be justified, but only if they are necessary to meet the anticipated threat. They must then strike the right balance between the needs of security and the rights and liberties of the individual; (iii) The need for additional safeguards should be considered alongside any additional powers; (iv) The law should comply with the U.K.’s obligations under international human rights law.

[6] Adopted by the Committee of Ministers on July 11, 2002, at the 804th meeting of the Ministers’ Deputies.

[7] U.N. Security Resolution 1456 (2003).

[8] The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Freedom of Expression and Access to Information, U.N. Doc. E/CN.4/1996/39 (1996). Adopted on October 1, 1995, by a group of experts in international law, national security and human rights.

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