ABSTRACT
Terrorism involves the use of apparently random acts of violence to inspire fear in a population in order to achieve some political goal.1 Logically, the use of violence in an attempt to influence government policy demands a government response. States are obligated to protect themselves and their citizens against political violence ‘not only because it constitutes a threat to the current constitutional order’,2 but also because such violence poses a threat to the liberty of the population generally. This point is acknowledged by the derogation provisions of the leading international human rights instruments which allow for the limitation or suspension of human rights where there is a threat to the life of the nation.3 The tendency for governments to react to terrorist threats through the use of draconian powers is both historically well established and politically understandable. In 1881, for example, following agrarian violence in Ireland, ‘the Land League4 was proclaimed to be illegal, meetings were broken up by the batons of the police, habeas corpus was suspended and over one thousand men were imprisoned’.5 More recently, the events of 11 September 2001 and the ‘war on terror’ have provoked a myriad of legislative responses. The United Kingdom-based Institute for Public Policy Research (IPPR) states that ‘government needs to think broadly, prepare thoroughly and act early’ in the face of the threat of terrorism.6 However, such measures can place a strain upon liberal democracy and the rule of law. Contributors to this volume have identified and remarked upon the tendency towards increased executive discretion, and a drift toward pre-emption as opposed to responding after the commission of a terrorist act. While the IPPR and others may welcome pre-emption, there exists a rational political motivation to introduce repressive laws.7 This is because ‘the political costs of under-reaction are always going to be higher than the costs of overreaction … Since no one can know in advance what strategy is best calibrated to deter an attack’, the executive can always claim that any measures taken were necessary so long as these measures prevent further attacks.8 Indeed, repressive measures may reassure the public that something is being done, while the lack of attack can reinforce the message that these measures are working in a way which is virtually unchallengeable.9
