Table of Contents
A key question in the political and academic discourse on the legislative response to the threat of international terrorism has been the question of proportionality. While some have argued that the laws enacted to counter terrorism strike the right balance between national security imperatives and concerns for civil liberties and human rights, others have regarded them as disproportionate and as an overreaction.[1] What both sides have in common, however, is that they generally approach the question of proportionality without examining the nature and quality of the terrorist threat and by accepting the executive’s assertion that the threat may warrant a range of comprehensive counter-measures.
I would argue that this approach is logically flawed. What proportionality generally requires is that there is a reasonable relationship between the means employed and the aims sought to be achieved. Essentially proportionality requires one to determine whether a measure of interference, which is aimed at promoting a legitimate public policy, is either unacceptably broad in its application or has imposed an excessive or unreasonable burden on certain individuals. A decision that takes into account proportionality principles should, inter alia, impair the right in question as little as possible, be carefully designed to meet the objectives in question, and not be arbitrary, unfair or based on irrational considerations.
In order to establish whether counter-terrorism laws and measures meet the objectives in question it is imperative to identify clearly what those objectives are. The objective of anti-terrorism laws is, in most cases, the reduction of the threat of terrorist attacks or activities. Thus it is logically necessary for a thorough proportionality analysis to consider or assess the quality and nature of the threat. I would argue that in the absence of such analysis, any proportionality assessment is incomplete.
Nonetheless, both the European Court of Human Rights (ECrtHR) and national courts, most recently the House of Lords, have taken a deferential approach and granted national authorities a wide ‘discretionary area of judgment’,[2] or, in the terminology of the ECrtHR, a ‘wide margin of appreciation’ with regard to the existence and analysis of the threat of terrorism that may constitute a so-called ‘public emergency’.[3] One rationale behind this deferential approach, especially in common law countries, seems to be that in terms of both constitutional competence and expertise in the area of national security it is for government (and perhaps Parliament) rather than the courts to assess whether a public emergency exists.[4]
While not addressing the constitutional implications of this position, I will argue that in the context of international terrorism this rationale is flawed in its logic. Courts can and should be in a position to assess the nature and size of the terrorist threat without necessarily having to have access to specific intelligence. This is not to say that courts should not have access to specific intelligence or classified information held by the government. On the contrary, access to such information may be essential to fulfil fair trial requirements in proceedings against persons accused of terrorism offences. However, the difficulties and challenges that classified information poses for the courts shall not be the subject of analysis here. The argument I am trying to make in this chapter is that in spite of any access to specific intelligence information, courts can and should submit general policy decisions about the threat of terrorism to judicial scrutiny.
The argument has both an international and a domestic dimension (although the domestic dimension is related to the international one). First I will argue that developments in international human rights law provide ample justification for an ‘extension’ of the competency of the courts — especially the ECrtHR — to assess the nature and quality of the terrorist threat that is seen to constitute a ‘public emergency’. Second, I will argue that an ‘extension’ of competency of domestic and national courts would also be possible and desirable and, further, that it would also be the logical consequence of findings by the House of Lords in the Belmarsh Detainees decision of December 2004.[5]
[*] Visiting Fellow, Faculty of Law, University of New South Wales, Sydney, Australia <c.michaelsen@unsw.edu.au>.
[1] In Australia, commentators who consider Australia’s anti-terrorism laws balanced and proportionate include: P Ruddock, ‘Australia’s Legislative Response to the Ongoing Threat of Terrorism’ (2004) 27(2) University of New South Wales Law Journal 254; R Cornall, ‘A Strategic Approach to National Security’, (Address to the Security in Government Conference, Canberra, 10 May 2005). Authors questioning the proportionality of some of the Australian laws include: G Williams, ‘Australian Values and the War against Terrorism’ (2003) 26(1) University of New South Wales Law Journal 191; G Carne, ‘Brigitte and the French Connection: Security Carte Blanche or A La Carte’ (2004) 9(2) Deakin Law Review 604; C Michaelsen, ‘International Human Rights on Trial – The United Kingdom’s and Australia’s Legal Response to 9/11’ (2003) 25(3) Sydney Law Review 275; J Hocking, ‘Counter-Terrorism and the Criminalisation of Politics: Australia’s New Security Powers of Detention, Proscription and Control’ (2003) 49(2) Australian Journal of Politics and History 355; C Michaelsen, ‘Antiterrorism Legislation in Australia: A Proportionate Response to the Terrorist Threat?’ (2005) 28(4) Studies in Conflict & Terrorism 321.
[2] A and Others v Secretary of State for the Home Department [2005] 2 AC 68, [37], [39] (Lord Bingham) (‘Belmarsh Detainees’).
[3] See, eg, Ireland v United Kingdom (1978) Series A No 35, [78]‑[79]; Brannigan and McBride v United Kingdom (1993) 17 EHRR 539, [41].
[4] See below n 22‑38 and accompanying text.
[5] Belmarsh Detainees [2005] 2 AC 68.