Select Committee on European Scrutiny Forty-First Report




COM(01) 743

Commission working document — the relationship between safeguarding internal security and complying with international protection obligations and instruments.

Legal base:
Department:Home Office
Basis of consideration:Minister's oral evidence of 3 July 2002 (HC 1039-i, Session 2001-02); Minister's letter of 9 September 2002
Previous Committee Report:HC 152-xx (2001-02), paragraph 10 (6 March 2002) and HC 152-xxvi (2001-02), paragraph 5 (24 April 2002)
To be discussed in Council:None planned
Committee's assessment:Politically important
Committee's decision:Cleared


  19.1  This working document is the Commission's direct response to the request[31] by the Extraordinary Justice and Home Affairs Council Meeting of 20 September 2001 that the Commission should examine urgently the relationship between safeguarding internal security and complying with international protection obligations and instruments.

  19.2  When we considered the paper on 6 March we had serious concerns about some of the issues raised in the document, notably the suggestion which the Commission appeared to be making that there might be a "balancing act" between individual protection needs and the security interests of a state in relation to the prohibition in Article 3 of the European Convention on Human Rights (ECHR)[32] against torture or inhuman or degrading treatment or punishment. We asked the then Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) whether she shared the Commission's view. The Minister replied on 25 March 2002 that she shared the Commission's interest in scrutinising future rulings by the European Court of Human Rights and that she remained open to discussion with European partners on the potential merits of examining any scope for reinterpretation of the Article 3 requirements. The Minister acknowledged that it was unacceptable to return anyone to face death or torture but believed it might be useful to examine ways of safeguarding Article 3 protection outside the UK, such as by obtaining 'robust, verifiable assurances' from a receiving country as to the future well-being of a terrorist or serious criminal deported there.

  19.3  When we considered the matter again on 24 April 2002, we did not find the Minister's letter reassuring. We could not accept the concept of a "balancing act" in relation to Article 3 ECHR and were concerned that the Minister's comments appeared to be giving support to the Commission's implied criticisms of the Court's case-law under Article 3, which criticisms we found misplaced and tending to undermine the authority of the Court. We asked the Minister to appear before the Committee to address these concerns.

The Minister's oral evidence

  19.4  The Parliamentary Under-Secretary of State at the Home Office (Lord Filkin) appeared before us to give evidence on 3 July[33]. The Minister stated that the Government accepted that, whatever the circumstances, there was no place in civilised countries for the use of torture or inhuman or degrading treatment or punishment. The Minister further explained that it was the Government's wish both to fulfil its obligations under Article 3 ECHR and to ensure the security of the state and of its citizens, and that it was determined that the UK should not become a safe haven for persons to pursue terrorist activities. The Minister added that prosecution for such activities was the most desirable course, but that this was not always possible and that in some cases the alternative of removal was also impossible by reason of Article 3 ECHR. Commenting on the Commission working document, the Minister said that it made clear the absolute nature of Article 3 ECHR, and that it permitted no exceptions or derogations. The Minister added the following comment:

"The Commission notes that the case-law may develop following the events of 11 September last year. As Angela Eagle said in her letter[34], the Commission is not suggesting that we should be seeking to avoid obligations under Article 3, but equally it is not ruling out the potential for some re-interpretation in the future. It would be wrong to rule out any discussion or exchange of experience on these matters between EU Member States."

  19.5  The Minister was asked if he had given thought to what such a 'reinterpretation' might be. He replied that at this stage the UK was not proposing a reinterpretation of Article 3 ECHR, but that there could be circumstances in which the Government thought there was a real and present threat to the safety of British citizens posed by somebody in this country who could not be brought to trial, and that in these circumstances the 'hard issue' was whether 'one would never think there was an issue to debate about balancing the security of British citizens against the obligations that Article 3 ECHR also imposes'.

  19.6  The Minister was asked if there were any circumstances in which the risk to security justified torture. The Minister replied that the issue was one of balancing a threat to national security against a risk of torture. The Minister confirmed that it was not the Government's policy to return a person to a regime which was known to carry out the death penalty or inhuman treatment and concluded:

"If we think the person would be exposed to the death penalty or would be tortured we would not send them back and that is categoric."

  19.7  The Minister described the context of the Commission working document by explaining that after 11 September the Justice and Home Affairs Council has asked the Commission to look at a whole range of issues about security in the European Union. The Commission paper was not a 'prelude to legislation' but simply sought to identify whether other Member States had identified as a problem the presence of terrorists whom it was impossible to remove, and if there was a need to discuss the issue. The Minister confirmed that in any discussion of the working paper the Government would argue very strongly against any agreement with other Member States which would breach the assurance given by the Minister that no person would be sent back to any country unless there was an assurance that they would not be subjected to torture or inhuman treatment.

  19.8  In reply to a question on the nature and quality of the assurances which would be sought from the foreign country, the Minister replied as follows:

"One would make a judgement about whether one could be reasonably confident that the word of the government which was giving it was likely to be honoured, whether there was a process for monitoring compliance with the assurances which were given, the past record of the government in terms of what evidence there has been of human rights abuses."

  19.9  The Minister undertook to write to us with further details of the numbers of cases in which assurances had been sought from the foreign country.

The Minister's letter

  19.10  In his letter of 9 September the Minister gives a detailed account of cases where assurances were sought before extraditing or removing a person from the UK, as follows:

"From 1998[35] up until the present date, the UK has no record of having had to ask for such assurances from a country when considering the extradition of a fugitive. In deciding whether there is a risk under Article 3 ECHR, the Government may seek information to test claims of likely risk, but this has never amounted to seeking assurances. Each extradition request received is scrutinised on the basis of a number of factors and one of the most important is the origin of the request. In any cases where it was considered possible that the fugitive would be subjected to the treatment described in Article 3, the Government has decided against proceeding with the case.

"As far as Article 2 of the ECHR[36] is concerned, the UK is a signatory to the 6th Protocol to the ECHR, which effectively outlaws application of the death penalty. There are several countries with whom the UK has extradition treaties in place where the death penalty is carried out. If a request is made on a death penalty offence, the UK seeks assurances from the requesting Government that the death sentence would not be imposed or if imposed would not be carried out. I understand that there have been three such cases since 1998."

  19.11  The Minister explains that this approach is also used 'very carefully and sparingly' where removal or deportation is sought under powers to control immigration. The Minister states:

"The only two current cases involve two Libyans (Mr Farag and Mr Akroush) both convicted of serious criminal offences and in respect of whom we have obtained assurances from the Libyan government. The Immigration Appeals Tribunal have upheld their deportation and the case is currently at the Court of Appeal. The only cases prior to this concern people involved in terrorism: Mr Chahal in 1996 and Mr Paramjit Singh and Mr Mukhtiar Singh in 1999. In all three cases the assurances received from the Government of India were not accepted as adequate by the Court."


  19.12  We are grateful to the Minister for the explanations in his oral evidence and in his letter which have given us some comfort.

  19.13  We believe that the references made to the possibility of a 'reinterpretation' of Article 3 of the European Convention on Human Rights (ECHR) give rise to the risk of ambiguity where no such risk ought to exist. We therefore welcome the statement by the Minister that the UK is not proposing any 'reinterpretation' and his categoric assurance that a person would not be returned to a country which would carry out the death penalty or engage in torture or inhuman treatment.

  19.14  We also draw comfort from the statement by the Minister that since 1998 in any case where the Government has considered it possible that the person would be subjected to the treatment prohibited by Article 3 ECHR, it has decided not to proceed with his extradition.

  19.15  Nevertheless, we remain concerned that the Commission should raise the idea of a 'balancing act' between the prohibition of torture and the security interests of a state, and should implicitly cast doubt on the case law of the European Court of Human Rights relating to Article 3 ECHR. We therefore welcome the undertaking by the Minister to keep us informed in advance of the Government's position in any discussions with other Member States on the interpretation of Article 3 ECHR.

  19.16  In the light of this undertaking and the explanations given by the Minister, we are content to clear the document.

31  Conclusion 29. Back

32  Article 3 ECHR provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. It does not admit of exceptions, and may not be derogated from. Article 3 ECHR also applies to the extradition or expulsion of a person who would face a real risk of exposure to inhuman or degrading treatment in the receiving state cf Soering v UK, Chahal v UK.


33  See HC 1039-i, Session 2001-02. Back

34  The reference is to the letter of 25 March 2002 from the then Parliamentary Under-Secretary of State. Back

35  The Minister informs us that detailed records of assurances in extradition cases were not kept before 1998. Back

36  Article 2 (1) ECHR provides that 'no-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law'. Article 2(2) ECHR list a number of exceptions. Back

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