Select Committee on Home Affairs Appendices to the Minutes of Evidence

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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Prepared 19 November 2001