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Publication details for Professor Gavin Phillipson

Phillipson, Gavin & Fenwick, Helen (2011). Covert derogations and judicial deference: redefining liberty and due process rights in counterterrorism law and beyond. McGill Law Journal 56(4): 863-918.

Author(s) from Durham


This article considers the use of control
orders in the United Kingdom as an example of
one of the most important legal aspects of the
“war on terror”: the development, alongside the
criminal justice approach, of a pre-emptive system.
It argues that in relation to such orders
the executive has in effect sought to redefine
key human rights in a manner that, at its most
extreme, amounts to covert derogation, and that
both Parliament and the judiciary have been to
an extent drawn into and made complicit in this
process. It highlights key aspects of this story in
order to illustrate some broader points about
the role of judges, Parliament, and the rule of
law in response to such exceptional measures. It
argues that the attempted minimization of the
ambit of rights, the spreading use of secret evidence,
and the damaging constitutional impact
of excessive judicial deference, are of great significance
beyond UK counterterrorism law and
can help illuminate both the opportunities and
the dangers in constitutional dialogue.