Annex 1
The background to these proposals
1. Space does not permit a full exposure
of the legislative and jurisprudential background to these measures.
It is hoped that the following may be of assistance as to what
the law and the international obligations of the UK are.
2. The Committee are referred to the three
core international instruments in play: Articles 2, 3, and 5 of
the ECHR; Article 1(F) and 33(2) of the 1951 Refugee Convention;
and Article 3 of the UN Convention Against Torture. From this
emerged the landmark decision of Chahal v the UK in 1996,
which is to be contrasted with the inability of the domestic courts
to examine the evidence of risk to national security in the context
of the merits of either detention or overall expulsion: see Chahal
v SSHD.
3. This led to the enactment of the Special
Immigration Appeals Act 1997. It has considered a number of bail
applications but only two substantive determinations: in the cases
of Rehman v SSHD (where the deportation of the subject
was said to be conducive to the public good on national security
grounds, although it was not alleged that he was a danger to the
public in the UK and was therefore detained) and Singh and
Singh v SSHD. Both appeals were allowed by SIAC. In Rehman
because, it was concluded that the "allegations" underlying
the decision had not been made out and that the subject did not
threaten national security. In Singh, SIAC were satisfied
that there were good security grounds to expel the subjects, but
equally there was a real risk of ill-treatment if returned to
their of origin, and following Chahal such a course was not permitted.
4. The House of Lords have recently upheld
the Court of Appeal decision in Rehman, allowed the Home
Secretary's appeal, and remitted the case for reconsideration.
In doing so it appears to have dramatically reduced even SIAC's
ability to draw different conclusions on risk to the public interest
from that of the Home Secretary. It should be noted that there
have been no applications for judicial review of SIAC decisions.
In Rehman the claimant unsuccessfully sought permission
to judicially review the refusal of legal aid so he could be properly
represented. The application was refused on the grounds that the
issues were not complex: an unconvincing answer in the light of
the subsequent history.
5. The Chahal decision posed the
problem of what to do with are people who vulnerable to the power
to deport but a destination could not be found where there is
no risk of torture. Lord Lloyd reported on the problem forthwith
and suggested that greater use be made of criminal prosecutions,
and that restrictions on the admissibility of surveillance material
be lifted to enable such prosecutions to proceed. The Criminal
Justice (Conspiracy and Terrorism) Act 1998 followed the first
recommendation but not the second. SIAC can see surveillance material
that would otherwise be excluded from admissibility before a court
by the Interception of Communications Act 1985. There are problems
and dangers for acceptable standards of fair trial, when it comes
to prosecuting people for intended acts abroad where the difference
between freedom fighter and terrorist is distorted by very different
political backgrounds from the purely domestic context. These
problems were in the forefront of the case of Kebilene,
where, after the case went to the House of Lords on the question
of whether the reverse burden on the defence was consistent with
fair trial, the subsequent trial was abandoned when the prosecution
were unwilling to comply with directions for disclosure.
6. Much greater problems of identifying
the proper meaning of terrorism arise under the Terrorism Act
2000, enabling proscription of organisations concerned with the
politics of states outside the United Kingdom. Proscription had
previously been confined to groups concerned with the affairs
of Northern Ireland. In March 2001 the Terrorism (Proscribed Organisations)(Amendment)
Order 2001 was promulgated that proscribed a number of organisations
active in Kashmir, Punjab, Sri Lanka, Palestine, Turkey, the Middle
East, and Iran. These orders potentially penalise thousands of
asylum seekers whose claims are based on ill treatment abroad
for passive or active support of what they consider to be liberation
movements. The Terrorism Act 2000 provides very wide definitions
of terrorism, membership, support, and other prohibited activities.
7. Exclusion of asylum seekers on the grounds
of "terrorism" was considered by the House of Lords
in the case of T v SSHD. The majority of the House of Lords
concluded that was insufficient to castigate a person as a terrorist,
or a supporter of a terrorist organisation, but evidence of personal
conduct was needed, which went beyond a political offence in the
course of a rebellion, by the disproportionate means used to advance
political ends. The exclusion of a broad range of violent offences
from the ambit of the term "political" had been earlier
applied in the context of extradition crimes.
8. The political context for the present
proposals is of the greatest importance. The political background
to these proposals is also of some significance. The Labour Government
enters its second term with an enormous majority, without serious
risk of legislative defeat in the House of Commons on any law-making
proposal it has set its heart on. A new Home Secretary has made
a series of important and welcome initiatives in the field of
penal and immigration law reform, but has made some equally unwelcome
and wholly inappropriate comments about judicial review, judicial
protection of human rights and the alleged over-mightiness of
judges on questions of political controversy. The disproportionate
reaction to the first instance decision in the Oakington challenge
is a case in point.
9. Lord Steyn has memorably described the
judiciary as the weakest and least dangerous branch of government,
and has pointed out the powers of the judges are set by Parliament's
laws. Even before the terrible events of the 11th September, there
was a long history of judicial surrender, going far beyond mere
deference, to the judgment of the executive in the field of national
security. This line of authority has been emphatically endorsed
by Lord Hoffman in the Rehman case. Outside the field of
national security, even where the fundamental human right to liberty
is concerned the judges have been deferential to questions of
executive policy as the Court of Appeal decision in Oakington.
10. The proposed legislation thus adds to
a field already deeply traversed with bold legislative initiatives
taking the executive and prosecuting authorities deep into the
heart of untested and controversial territory. This is balanced
only by the concepts of human rights, and abuse of process and
the residual check of judicial review of the "rationality"
or proportionality of the decision.
11. A derogation from Article 5 would be
an alarming course for the UK to pursue. The logic of recent years
has always been to ensure that responses to emergencies or terrorist
threats are accommodated within the rule of law, and the basic
principles of a civilised society that we are seeking to defend
against terrorists.
12. The protection of individual liberty
is a core judicial function. The political history of the United
Kingdom rings with an abhorrence of detention without trial or
charge, internment, the King's special inquisition, loyalty oaths,
and the suppression of individual dissent and free expression
by confinement. Article 5 of the ECHR is a core Article at the
heart of the European Convention on Human Rights. It is a very
modest, highly balanced, statement of the principles of the common
law and the common constitutional traditions of the western democracies.
Judicial scrutiny of the executive's claim to incarcerate is at
the heart of that tradition. Derogation from the principle of
judicial supervision, even assuming it to be permissible and Convention
compatible itself, grants a blank cheque or a lettre de cachet
to the executive in its treatment of the most vulnerable.
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