Max Planck Institute for Foreign and International Criminal Law

The terrorist attacks in New York, Madrid, and London have amplified the calls for increased security, greater punishment, and preventive measures in Germany and other countries. Laws increasing the punishment for crimes that have already been committed appear largely uncontroversial among politicians. The question as to the balancing of freedom and security becomes more interesting, however, as it pertains to the discussion of the treatment of potentially dangerous persons and of special, preventive measures to fight terrorism. Satisfaction of the desire for security entails risks detrimental to the right to personal liberty as guaranteed to every citizen by national constitutional law as well as by international instruments such as the European Convention on Human Rights. In Germany, while plans to combat terrorism by means of online searches, preventive surveillance measures, and preventive detention have been introduced into the political debate, they have as yet only been implemented to a very limited degree – in part due to constitutional concerns.

What would happen if the continuing demands for more security in Germany actually became law? How would personal liberties be affected if the pursuit of security were to become the highest priority? A possible answer to these questions can be found in the current British anti-terror legislation and its application in practice. In political discussions as well as in the German academic literature, British legislation has largely been ignored, even though it constitutes a noteworthy example of a possible means of resolving the conflict between security and freedom.

The subject of this doctoral dissertation is the terrorism legislation of the United Kingdom enacted since 2000. The project will provide an overview of the most important provisions. The focus is on the presentation and analysis of interventions into the freedom of movement, which will be analyzed in light of the European Convention on Human Rights and the case law of the European Court of Human Rights. The goal is to provide an answer to the question of whether interventions in individual liberty as provided for by the British anti-terror legislation are consistent with national and European guaranties of basic rights and whether they are justifiable. As a continuation of the examination of conformity with basic rights, the questions of whether parallel developments can be ascertained between Germany and the United Kingdom and whether the reform proposals for dealing with the conflict between freedom and security are exemplary or dubious are considered and subjected to a legal-political evaluation.

The methodology involves a study of the British statutes themselves as well as of the corresponding legislative materials. In addition, the relevant academic literature will be evaluated, and the case law of the British courts and of the European Court of Human Rights will be analyzed and subjected to legal evaluation. For the legal-political evaluation, the developments in Germany will also be taken into consideration.

To date, the study shows that the British legislation gives the facets of security and prevention the highest priority. From a human rights perspective, this is problematic because terrorist suspects could be subject to massive restrictions on their daily lives by the so-called control orders and in individual cases, people’s rights to personal liberty have indeed been infringed upon. The British anti-terror legislation does not resolve the conflict between freedom and security in a satisfactory manner because it facilitates very invasive measures whose reconcilability with the European Convention on Human Rights is highly questionable.