On 2 October 2000, the Human Rights Act was brought into force, significantly strengthening the protection of human rights across the United Kingdom and providing a means by which human rights can be enforced. This October, the British Institute of Human Rights has organised “15 Days of Action”, including a tour with events across the UK to celebrate this important anniversary our Human Rights Act and the difference it has made to people’s lives across the UK. Each day we will be looking at one story from each of the last years fifteen years. Today, we look at 2011 and the case of Secretary of State for the Home Department v AF.

One of the most important effects of the Human Rights Act has been to re-balance power between the individual and the state, strengthening the ability of all of us to challenge state action when it interferes with our fundamental rights. The power of the state is mighty and since the 9/11 attack against the United States, the UK Parliament has passed a number of pieces of counter-terrorism legislation which demonstrate just how much control over our lives the state can wield when it so chooses. When the indefinite detention of terrorist suspects without trial or even charge was held to be incompatible with the Human Rights Act by the House of Lords in 2004, Parliament responded with the introduction of “control orders” through the Prevention of Terrorism Act 2001. Under the Act, the Home Secretary was able to impose a control order on any person he reasonably suspected of being involved in terrorist activity and they could then be subject to various restrictions on their movement and place of residence, their international travel and their use of communication technology as well as to various requirements such as to allow their premises to be searched by police or to report to the police whenever requested. There was no requirement that the person ever be put on trial or even charged with any offence before these restrictions and requirements could be imposed, and, if they sought to challenge the imposition of a control order, the evidence used against them could be withheld with the court proceedings taking place in secret with only a special advocate (a lawyer who was told of the evidence but who could not discuss it with the person subject to the control order) to defend them.

AF and two others who had been subjected to control orders, and who had not been provided with the evidence against them when they sought to challenge those control orders, brought a case against the Home Secretary arguing that the proceedings for challenging control orders breached Article 6, the right to a fair trial. The House of Lords unanimously found in their favour, and held that in order for control order proceedings to be “fair” within the meaning of Article 6, the individual had to be given “sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations” (para. 59). As a remedy, the House of Lords decided to use its power under section 3 of the Human Rights Act to interpret legislation compatibly with Convention rights and held that the legislation governing proceedings in which a control order was challenged should be interpreted to require the judge to consider (i) the allegations that had to be disclosed in order for the proceedings to be sufficiently open in accordance with the right to a fair trial and (ii) whether there is any other matter whose disclosure would be essential to the fairness of the trial.

The threat of terrorism is both real and ever present, and the courts are fully aware of this when they make their decisions. The temptation of governments, when faced with this threat of terrorism, to limit individual freedom for the sake of the safety of everyone is understandable. Indeed, our Human Rights Act actually requires the government to take reasonable steps to keep us all safe from terrorism. But history is full of examples of governments using the justification of the threat of terrorism to impose controls and restrictions over individual liberty which go far beyond what is necessary or proportionate. Cases such as these are important in that the show how the Human Rights Act provides all of us with a powerful shield to defend ourselves from the government’s sword when it strikes unfairly or too harshly. In this case, the protections offered by the Prevention of Terrorism Act to those suspected of terrorist activity were paper thin, whereas the consequences upon their freedoms was significant. The Human Rights Act was used to strengthen those protections and is used every day by people across the UK to defend and protect their basis rights against the power of the state. Whether it is those suspected of terrorist activity, those accused of committing a crime, or even those who are at risk of detention due to their mental health status, countless people rely on the Human Rights Act to keep a check on state power, and we must defend it and the protections it offers to all of us and oppose any attempt at its weakening.