Schedule 7 of the Terrorism Act 2000 allows police officers at ports or border areas to question individuals for the purpose of determining whether they are a terrorist, as defined in s.40(1)(b). That power may be exercised ‘whether or not [the officer] has grounds for suspecting’ that a person is a terrorist (Schedule 7, paragraph 2(4)). In Beghal v UK, the European Court of Human Rights (ECtHR) found that Schedule 7 violated Ms Beghal’s Article 8 rights, contrary to the judgment of the UK Supreme Court four years earlier.
Relying on its earlier decision in Gillan and Quinton v UK, the ECtHR easily established an interference with Article 8, rejecting the argument that the interference was less serious than in Gillan because the powers were only exercisable at the border, rather than throughout the UK. The question was then whether the powers were subject to sufficient safeguards as to be ‘in accordance with the law’. Whilst recognising the broad margin of appreciation in national security matters, the Strasbourg court held that the absence of a ‘reasonable suspicion’ requirement meant that the powers were, in principle, susceptible to arbitrary exercise and that none of the other purported safeguards (such as judicial review and independent oversight of the powers) were sufficient to protect individuals from that arbitrariness.
On its face, the decision appears to represent a significant step towards the ECtHR’s aim of guaranteeing rights that are ‘practical and effective’, strengthening the requirement that interferences be ‘in accordance with the law’. This increases the burden on Contracting States to justify anti-terrorism powers, ensuring that these measures are not automatically acceptable simply because they are contained in primary legislation. In the field of national security, where the margin of appreciation ordinarily reigns, this represents a welcome rebalancing in favour of individual rights.
However, the judgment suffers from two deficiencies. Firstly, it is unclear what constitutes an effective set of safeguards. The implication is that powers with a ‘reasonable suspicion’ requirement will be in accordance with the law, whilst those without must be subject to safeguards to prevent arbitrariness. Three example safeguards emerge from the decision: (i) legislative limitation of the length of questioning or access to a lawyer during the process; (ii) conditions on the exercise of the power which could ground a judicial review; and (iii) an independent overseer with power to determine whether exercise of the power is unlawful. These suggestions raise more questions than they answer. What makes a safeguard sufficiently effective? Are some safeguards more effective than others? How many safeguards are needed to make a measure in accordance with the law? Without further clarification, there is a risk that Contracting States, in supposed compliance with this judgment, will introduce only very minor safeguards, ultimately retaining the unconditional powers. The better reading of the suggested safeguards, however, is that each requires a substantive limitation of the power itself, meaning that in practice, unconditional powers will now never be ‘in accordance with the law.’
Secondly, having found that the Schedule 7 powers were not in accordance with the law, the ECtHR concluded its discussion, choosing not to consider the proportionality of the measure. This is regrettable, particularly in light of Lord Kerr’s dissent at the domestic level, in which he stated that ‘there is no evidence that a suspicion-less power to stop, detain, search and question is the only way to achieve the goal of combating terrorism’. By failing to consider this argument as to disproportionality, the court at best missed an opportunity to spell out a further check on stop and search powers and, at worst, tacitly endorsed the suggestion that national security measures taken in accordance with the law will automatically be proportionate.
Beghal v UK marks a significant development of the ECtHR’s jurisprudence on the requirement that interferences be ‘in accordance with the law’. Unfortunately, by neglecting to define the elements of that requirement closely and by refusing to consider the proportionality of the impugned measure, Article 8 rights are in danger of remaining less practically effective in national security cases than might be hoped.