The ‘War on Terror’ and the United Kingdom’s Constitution

Abstract

That its “unwritten” nature makes the United Kingdom’s constitution extremely flexible is a truism if not a cliché. It is, nevertheless, a phenomenon that has never been more clearly evident than in the last ten years. No exaggeration is entailed in the statement that the British constitution has, during that period, undergone a truly dramatic period of change, including the devolution of legislative and administrative power and the reform of judicial and related institutions. However, most important, for present purposes, is the Human Rights Act 1998, which gives effect in national law to certain parts of the European Convention on Human Rights. This is the backdrop against which this paper considers the legal dimensions of the “war on terror” being waged by the British government – most notably its (now-abandoned) policy of indefinitely detaining suspected foreign terrorists without charge or trial. This is a useful context in which to seek to understand the implications of the HRA and to consider a broader discourse about the nature of the modern British constitution and the place of human rights within it.