Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum submitted by The AIRE Centre

  The AIRE Centre (Advice on Individual Rights in Europe)[1] is a human rights organisation based in London. The AIRE Centre provides expert advice on International Human Rights law and in this context it is frequently called upon by international bodies such as the Council of Europe as experts on the implementation of the European Convention on Human Rights (ECHR).

  The AIRE Centre welcomes the opportunity to give evidence to the Home Affairs Committee. The Home Secretary's proposals as set out in his speech to Parliament on 15 October 2001 are wide ranging and potentially have huge consequences for civil liberties in the United Kingdom. This has to be taken in the context of the fact that the UK has the most extensive anti-terrorism legislation in the world at present. It is therefore questionable whether the Home Secretary has any need to increase his powers in this field. The AIRE Centre considers that the proposals are an unnecessary infringement on fundamental human rights and any proposed legislation should be extremely carefully scrutinized to ensure that liberties are not curtailed in the name of political expedience[2].

  The two areas of greatest concern, although by no means the only, are the proposal to reject asylum claims where the Secretary of State certifies the person to be a threat to public security and the proposal to use prolonged detention and derogate from Article 5 ECHR under Article 15 ECHR. Whilst the detail of these proposals is not yet known there are certain principles which must guide the adoption of any legislation in this field.

Rejection of Asylum Claims and Expulsion or Extradition of Suspects and the Certification of Claims

  1.  The proposals by the Secretary of State to reject an asylum claim where he certifies that a person is a threat to national security would not be consistent with the UK's obligations under Article 13 ECHR taken together with Article 3, given that an asylum claim is likely to raise issues under Article 3 ECHR. In any event there is no provision under the 1951 Convention which entitles the Secretary of State to withhold recognition of refugee status other than for past crimes as set out in Article 1F. Article 33(2) sets out procedural safeguards to be observed if the Secretary of State wishes to expel someone on national security grounds. The jurisprudence of the Strasbourg Court can not justify an expulsion where there is real risk of treatment contrary to Article 3.

  2.  The United Kingdom's obligations under the ECHR and 1951 Convention demand that claims for international protection are considered on their merits and are given due process. Any attempts to streamline procedures or curtail appeal rights should bear in mind the obligation to "secure" rights within its territory and provide an effective remedy for actual or potential breach[3].

  3.  It is the AIRE Centre's understanding from the Home Secretary's statement that he intends to honour the United Kingdom's obligations under Article 3 ECHR and under the 1951 Convention[4] in so far as he does not intend to return a person where they will be tortured or killed. However the AIRE Centre is extremely concerned at any qualification of that commitment[5].

  4.  To fail to provide protection against expulsion for all persons facing torture or inhuman or degrading treatment is to entirely misunderstand the nature of the UK's obligations under Article 1 ECHR which requires States to "secure" the rights all persons in its territory. It would entirely undermine the Convention and the absolute nature of Article 3 if a State were prevented from subjecting a person to ill-treatment within its own territory but could simply send them elsewhere to subject them to that kind of treatment.

Derogation to Article 5 of the Convention under Article 15

  5.  Article 15 of the Convention permits a Contracting State to derogate from its obligations under the Convention, excepting Articles 2, 3, 4 and 7 in time of war or other public emergency threatening the life of the nation. There are two general considerations in assessing whether the breach of a Convention right is justified by the right of derogation:—

    1.  Is there a public emergency threatening the life of the nation?

    2.  Are the measures proposed strictly required by the exigencies of the situation?

State of emergency threatening the life of a nation

  6.  This refers to an exceptional situation of crisis or emergency which presently affects the whole population and constitutes a threat to the organised life of the community. The Strasbourg Court will examine whether the facts and circumstances which lead a Contracting Party to enter a derogation come within this conception. The Strasbourg Court, in exercising its supervision, will give appropriate weight to relevant factors such as the circumstances leading to and the duration of the emergency situation.[6] It seem unlikely that the Strasbourg court would accept the use of so serious an invasion of human rights as indefinite detention in anticipation of an emergency particular as the fear of terrorism will no doubt continue long into the future[7].

  7.  The Secretary of State undoubtedly presently considers that there is such a state of emergency. However it is worth bearing in mind that firstly there have been no publicised attacks on the United Kingdom; that if the threat is "global terrorism" the United Kingdom is in no different position than the rest of the world; that if the matter came before the Strasbourg Court it would be entitled to demand evidence as to the state of emergency affecting the United Kingdom which might be difficult to provide and the Government may not wish to have that evidence examined.

Whether the measures taken in derogation from obligation under the Convention were "strictly required by the exigencies of the situation"

  8.  In the determination of the "strictly required" character of the derogating measures various elements may play a role, notably the necessity of the derogations to cope with the threat and the proportionality of the measures in view of the threat. The Strasbourg Court will require that the Contracting State proves that the existing legislation and the normal procedures for the maintenance of the legal order are not sufficient to respond to the situation.

  9.  In the present situation the rational for the derogation to Article 5 appears to be the need to indefinitely detain those who can not be expelled because to do so would be a breach of Article 3. In this sense it is a derogation to Article 5(1)(f) rather than a derogation to Article 5(1)(c.)[8]. In the past the UK has entered derogations for the purposes of prolonging detention for a limited period of time in order to obtain information from terrorist suspects from Northern Ireland.

  10.  The UK has also derogated in very exceptional circumstances involving extensive loss of life such in Kenya for prolonged detention. Such indefinite detention is obviously more of an infringement and would require clear justification and the detention of an individual would have to be on the basis of clear evidence. It is therefore entirely questionable why the Secretary of State would seek to detain rather than prosecute, particularly given the wide powers to prosecute under the Terrorism Act 2000. If the failure to prosecute is a consequence of lack of evidence against a person, that evidence would be unlikely to satisfy the need to detain.

  11.  The evidence of the past, without exception, indicates that security organisations invaribly make serious errors when given a power of indefinite detention, much to the embarrassment of Governments which use them.

November 2001

1   This submission has been prepared with the assistance of A W Brian Simpson, Charles F and Edith J Clyne Professor of Law at the University of Michigan Law School, author of "In the Highest Degree Odious: Detention without trial in wartime Britain" Clarendon Press, 1992 and "Human Rights and the End of Empire" Britain and the Genesis of the European Convention", Oxford University Press, 2001. Back

2   The reflection on the measures used in wartime Britain including detention without trial reveals a tendency to do "whatever seems necessary at the time ... or politically expedient" but that does not answer the question whether it was necessary or achieved its aim; see "In the Highest Degree Odious", op. cit., pp. 409-413. Back

3   Articles 1 & 13 ECHR. Back

4   1951 UN Convention on the Status of Refugees, Geneva. Back

5   This is our understanding from a meeting on Developments in Europe we attended at the Home Office on 31 October 2001 where officials reported that discussions were being initiated at European level as to the absolute nature of Article 3 ECHR and whether the same protection should apply to persons being expelled and who face ill-treatment as that applied to persons in the territory of the Contracting States and that those facing less severe forms of ill-treatment than torture might not require protection. Back

6   Brannigan and McBride v the United Kingdom, 26 May 1993, paras. 41-43. Back

7   It was the Colonial Office in the early '50s which expressed concern as to use of detention without trial before an emergency had been declared in Malaya for instance; The then Lord Chancellor and others considered such measure quite unacceptable; see A W B Simpson "Human Rights and the End of Empire", pp. 830-1 and pp. 1065-68. Back

8   Article 5 provides
    1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
. . .
    (c )  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
. . .
    (f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2001
Prepared 19 November 2001