Miranda’s rights: will the Terrorism Act be changed?

“A key clause in the Terrorism Act 2000 is incompatible with the European convention on human rights, the master of the rolls, John Dyson, has said as part of a court of appeal judgment...

“The court of appeal’s judgment on Tuesday will force government ministers to re-examine the act.”

Guardian, 19 January 2016

“As a result of this ruling the law will have to be changed so that journalists are better protected”

Bindmans, lawyers acting in the case, 19 January 2016

Yesterday the appeal court ruled that police investigating the Edward Snowden leaks acted legally when they stopped and questioned a man called David Miranda at Heathrow airport in 2013.

But the three judges also said that the powers police used under the Terrorism Act 2000 were “incompatible” with human rights.

The senior judge, Lord Dyson, said that officers being allowed to stop people at the border to find out if they might be a terrorist would be a breach of the right to free expression when applied to “journalistic material”, as there aren’t safeguards against abuse.

Although the court said that Mr Miranda wasn’t a journalist, he was stopped while carrying leaked intelligence information for his partner, Glenn Greenwald, who is. This made it “journalistic material”, and stopping him a breach of the right to free expression.

Judges can raise doubts about an Act of Parliament in this way thanks to the Human Rights Act. But the consequences are often misunderstood.

There is no legal obligation on the government or Parliament to change the law after a ruling like this. Lawyers not involved with the case were quick to point this out.

A declaration of incompatibility is a formal signal to Parliament, or the relevant Minister, that they should change the law.

In practice, the law is usually changed. But it’s important to understand that it doesn’t have to be.

So the Terrorism Act powers to stop and question people at the border continue to be legal. The government says the court’s concerns are no longer relevant because it’s changed the rules for police officers, telling them “not to examine journalistic material at all”.

So it remains to be seen whether any change will be put forward.

This is different to what would happen if, say, the Supreme Court of the United States decides that a law breaches the US constitution. In that case, the law no longer has effect.

In much the same way, UK courts can strike down local laws made by the parliaments and assemblies in Scotland, Wales and Northern Ireland.

The government may still appeal to the UK’s own Supreme Court to have this declaration of incompatibility removed.