LOS PRINCIPIOS QUE RIGEN LA ORGANIZACIÓN ADMINISTRATIVA LA JERARQUÍA Y LA COMPETENCIA

The legal system in the UK is the common law.77 _{In this system, the decisions of} the judges are fundamentally based on custom and judicial precedent rather than a literal interpretation of statutes.78 _{It is the opposite of the civil law system. In fact, there are} some consequences and differences in the application of the law based on the legal system of the country, especially regarding the importance of the jurisprudence and statutes. The civil law tradition focuses on the written law, which can be interpreted by the courts, but always within the strict limits of the statutes. The precedents can never make extreme changes or innovations in the written law. The common law tradition privileges jurisprudence and it is also called “judge-make” law.

Each country has specific reasons for starting to criminalize terrorism. Lindsay Clutterbuck stated,79 _{“in the UK, for example, it began with the passing into law of the} Prevention of Terrorism Act in the immediate aftermath of the IRA bomb attacks on two public houses in Birmingham on November 21, 1974, when 21 people were killed and 162 injured.”

77 _{Black’s Law Dictionary, “Common Law.” http://thelawdictionary.org/common-law/.} 78 _Ibid.

The historical context of the British effort to combat terrorism in Northern Ireland explains the evolution of the law in that country. In this step, the judgments and complaints from the civil society had a fundamental influence, leading to improvements in the rules against terrorism. According to Kent Roach,80 _{“The legislative nature of} British approaches to terrorism also has meant that the courts have played a prominent role in reviewing both laws and executive actions taken to prevent terrorism.”

Currently, the Law that regulates the combat of terrorism in the UK is called the Terrorism Act.81 _{It is the law that superseded other legal diplomas: Prevention of} Terrorism (Temporary Provisions) Act 198982 _{and the Northern Ireland (Emergency} Provisions) Act 1996.83 _{It has received several changes since it was promulgated,} especially in the years 2001, 2005, 2006, and 2008.

The legal model is very comprehensive. Its statute has a broad definition of terrorism and requires proof of political, religious, racial, or ideological cause.84 _In addition, in the statute, one can see procedures, proscription of terrorist groups, fund- raising, money laundering, disclosure of information, interpretation, evidence, investigations, police powers, officers’ powers, and miscellaneous areas.85 _{It was a new} paradigm of law, “as permanent legislation that would apply throughout the United Kingdom.”86

According to Kent Roach, the British commitment to legalism,87

explains why the United Kingdom’s use of administrative, preventive, and investigative detention is heavily regulated by law and does not have the

80 _{Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (New York: Cambridge University}

Press, 2011), 239.

81 _{The National Archives, “Terrorism Act.” http://www.legislation.gov.uk/ukpga/2000/11/section/1.} 82 _{The National Archives, “Prevention of Terrorism (Temporary Provisions) Act 1989.”}

http://www.legislation.gov.uk/ukpga/2000/11/section/1.

83 _{The National Archives, “Northern Ireland (Emergency Provisions) Act 1996.”}

http://www.legislation.gov.uk/ukpga/2000/11/contents.

84 _Ibid. 85 _Ibid.

86 _{Roach, The 9/11 Effect: Comparative Counter-Terrorism, 239.} 87 _{Roach. The 9/11 Effect: Comparative Counter-Terrorism, 238–239.}

ad hoc and extra and extralegal character of post-9/11 American experiments such as the initial Guantanamo detentions, immigration roundups, and the abuse of material witness warrants.

The reason behind such a very large, detailed Terrorism Act was the history of abuses that had happened in combating terrorism in Northern Ireland since the 1970s.88

Nowadays, after several legislative changes, the law is more appropriate for the combat of contemporary terrorism. The previous law (1989) defined terrorism as the use of violence for political ends with purpose of putting the public in fear. The 2000 Terrorism Act defines terrorism in more detail. In essence, it includes acts of serious violence or threats of violence against persons or property for a political, ideological, or religious purpose with an overriding goal of intimidating the general public. Although the new law still retains a broad concept of terrorism, it is more specific, which helps to prevent violations of civil liberties. This improvement is the result of criticism from civil society and judicial review.

The strongest points of the new law are the clear role of each actor and the definition of terrorism, covering a veritable spectrum (although criticized as too broad) of criminal offenses. By defining the role of the agencies, the law permits them to work in tune, preventing duplicate investigations of the same target, or even colliding investigations. Also, it represents savings in terms of public funds. By defining acts of terrorism more strictly, the law provides a greater guarantee of civil liberties, which may allay the concerns of human rights organizations.

On the other hand, the weakest points of the law are: first, the administrative detention, which is established in fewer cases, but still exists; second, the immigration law, which permits a different treatment for foreigners and may represent a discriminatory approach; third, the use of secret evidence, which could harm the right to defense and due process; fourth, the stop-and-search without reasonable suspicion, which clearly may harm the right to privacy; fifth, the regulation of speech associated with terrorism, which may represent a limitation on the fundamental right to freedom of speech; and sixth, the special courts, which again can be considered as harmful to due

process and the right to a fair trial. All these points are viewed as highly restrictive of civil liberties.

The most controversial police power promulgated by the 2000 Terrorism Act was stop-and-search. Indeed, the law allows stop-and-search without probable cause or even reasonable suspicion. This constitutes a real invasion of individual privacy, and may be intensely discriminatory, given that the police can choose whoever they want to search without evidence. According to the UK human rights organization Justice, stop-and- search is:89

The general term used to describe the power of police (and occasionally other officials) to search members of the public in various contexts. Under section 44 of the Terrorism Act 2000, however, a senior police officer may authorize a certain zone as one in which vehicles and pedestrians may be stopped and searched without reasonable suspicion. The purpose of section 44 is to enable police to carry out so-called ‘intuitive’ search for items ‘of a kind which could be used in connection with terrorism’.

In summary, according to the groups that protect civil liberties in the UK, there have been four excesses in the law against terrorism since 2000:90

1. Indefinite detention without charge of foreign nationals if suspected of involvement in terrorism.

2. Unsafe and unfair control orders imposing severe and intrusive

prohibitions, including indefinite house arrest for up to 16 hours a day without charge, let alone conviction.

3. Pre-charge detention in terrorism cases, currently allowing for 14-day detention without charge, the longest period of any comparable democracy.

4. Section 44 of the Terrorism Act 2000 allowing stop and search without suspicion, which was disproportionately used against peaceful protesters and ethnic minority groups.

89 _{Justice Organization, “Stop and Search.” http://www.justice.org.uk/pages/stop-and-search-under-the}

-terrorism-act-2000.html.

90 _{National Council for Civil Liberties, “Overview of Terrorism Legislation.” https://www.liberty-}

Although broad, the statute reflects recent history and is completely justified by the series of grievous terrorist acts in the UK. Despite the criticism, the legal system in the UK has permitted reasonable combat against terrorism in terms of criminal prosecution and preventive measures to avoid attacks and arrest suspects.