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The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism

Stuart Macdonald Orcid Logo

Criminal Law and Philosophy, Volume: 9, Issue: 2, Pages: 265 - 283

Swansea University Author: Stuart Macdonald Orcid Logo

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DOI (Published version): 10.1007/s11572-013-9255-4

Abstract

This article argues that the courts, not the Home Secretary, should be empowered to issue Terrorism Prevention and Investigation Measures (TPIMs). It explains that at the heart of the debate are three questions: whether measures like TPIMs should be viewed primarily from the perspective of security...

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Published in: Criminal Law and Philosophy
ISSN: 1871-9791 1871-9805
Published: Springer Science and Business Media LLC 2015
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URI: https://cronfa.swan.ac.uk/Record/cronfa16641
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spelling 2016-08-10T16:40:38.6276097 v2 16641 2013-12-17 The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism 933e714a4cc37c3ac12d4edc277f8f98 0000-0002-7483-9023 Stuart Macdonald Stuart Macdonald true false 2013-12-17 LAWD This article argues that the courts, not the Home Secretary, should be empowered to issue Terrorism Prevention and Investigation Measures (TPIMs). It explains that at the heart of the debate are three questions: whether measures like TPIMs should be viewed primarily from the perspective of security or liberty; how we should conceive the executive and the courts; and the empirical question of how these two arms of government answer these questions. The non-mechanistic nature of legal reasoning means that legal reasons may be constructed to fit one’s normative viewpoint on each of the first two questions. Importantly, however, the case law on judicial scrutiny of control orders consistently demonstrates that the courts themselves regard TPIMs as being primarily a restriction on liberty, which require a fair hearing before an independent court. Whilst this does provide some protection of individual rights, the nature of law as an unfinished practice means that for stable protection of individual rights judicial independence must be promoted and nurtured in both the legal and political realms. The failure of the Terrorism Prevention and Investigation Measures Act 2011 to vest the power to issue TPIMs in the courts thus represents a missed opportunity to secure political endorsement of enhanced legal protection of individual liberty in cases involving national security. Journal Article Criminal Law and Philosophy 9 2 265 283 Springer Science and Business Media LLC 1871-9791 1871-9805 Terrorism, TPIMs, executive measures, legal realism 1 6 2015 2015-06-01 10.1007/s11572-013-9255-4 COLLEGE NANME Law COLLEGE CODE LAWD Swansea University 2016-08-10T16:40:38.6276097 2013-12-17T08:58:34.3162252 Faculty of Humanities and Social Sciences Hilary Rodham Clinton School of Law Stuart Macdonald 0000-0002-7483-9023 1 0016641-23032016091925.pdf Cronfav13.pdf 2016-03-23T09:19:25.6170000 Output 581060 application/pdf Accepted Manuscript true 2014-09-02T00:00:00.0000000 true
title The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism
spellingShingle The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism
Stuart Macdonald
title_short The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism
title_full The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism
title_fullStr The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism
title_full_unstemmed The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism
title_sort The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism
author_id_str_mv 933e714a4cc37c3ac12d4edc277f8f98
author_id_fullname_str_mv 933e714a4cc37c3ac12d4edc277f8f98_***_Stuart Macdonald
author Stuart Macdonald
author2 Stuart Macdonald
format Journal article
container_title Criminal Law and Philosophy
container_volume 9
container_issue 2
container_start_page 265
publishDate 2015
institution Swansea University
issn 1871-9791
1871-9805
doi_str_mv 10.1007/s11572-013-9255-4
publisher Springer Science and Business Media LLC
college_str Faculty of Humanities and Social Sciences
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hierarchy_top_title Faculty of Humanities and Social Sciences
hierarchy_parent_id facultyofhumanitiesandsocialsciences
hierarchy_parent_title Faculty of Humanities and Social Sciences
department_str Hilary Rodham Clinton School of Law{{{_:::_}}}Faculty of Humanities and Social Sciences{{{_:::_}}}Hilary Rodham Clinton School of Law
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description This article argues that the courts, not the Home Secretary, should be empowered to issue Terrorism Prevention and Investigation Measures (TPIMs). It explains that at the heart of the debate are three questions: whether measures like TPIMs should be viewed primarily from the perspective of security or liberty; how we should conceive the executive and the courts; and the empirical question of how these two arms of government answer these questions. The non-mechanistic nature of legal reasoning means that legal reasons may be constructed to fit one’s normative viewpoint on each of the first two questions. Importantly, however, the case law on judicial scrutiny of control orders consistently demonstrates that the courts themselves regard TPIMs as being primarily a restriction on liberty, which require a fair hearing before an independent court. Whilst this does provide some protection of individual rights, the nature of law as an unfinished practice means that for stable protection of individual rights judicial independence must be promoted and nurtured in both the legal and political realms. The failure of the Terrorism Prevention and Investigation Measures Act 2011 to vest the power to issue TPIMs in the courts thus represents a missed opportunity to secure political endorsement of enhanced legal protection of individual liberty in cases involving national security.
published_date 2015-06-01T03:19:02Z
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score 11.012924

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