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The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism
Criminal Law and Philosophy, Volume: 9, Issue: 2, Pages: 265 - 283
Swansea University Author:
Stuart Macdonald
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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...
Published in: | Criminal Law and Philosophy |
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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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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 |
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933e714a4cc37c3ac12d4edc277f8f98 |
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933e714a4cc37c3ac12d4edc277f8f98_***_Stuart Macdonald |
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Stuart Macdonald |
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Stuart Macdonald |
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Criminal Law and Philosophy |
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10.1007/s11572-013-9255-4 |
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Springer Science and Business Media LLC |
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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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11.021648 |