APPENDIX 6
Memorandum submitted by Martin Howe QC
Introduction
1. The Committee will be concerned with
(1) the likely effectiveness of each of the proposed measures
in addressing the problem of terrorism, and (2) any adverse impact
which those measures may have on civil liberties. In considering
this second aspect, the Committee will naturally be concerned
to look at the extent to which the proposed measures are compatible
with relevant jurisprudence including that under the European
Convention on Human Rights.
2. However, I believe that it is important
not to treat that jurisprudence as sacrosanct, nor as laying down
an unchallengeable definition of what constitutes an unacceptable
curtailment of individual liberties. My reason for saying this
is that there is a serious danger of the shape of the proposed
measures being distorted by the constraints imposed by that jurisprudence
so that the measures taken will both be far less effective than
they ought to be whilst at the same time posing a greater threat
to individual liberties.
3. The principal problem I have in mind
is the extreme difficulty of deporting or extraditing suspected
terrorists from this country which has been engendered by a series
of decisions of the European Court of Human Rights, most notably
the Soering[24]
and the Chahal[25]
cases. My recently published pamphlet[26]
contains an extensive discussion of those and other cases decided
both by the Strasbourg Court and by our domestic courts. That
analysis is too lengthy to repeat within this Memorandum and is
available for reference if desired, so I shall confine myself
to summarising its conclusions on this matter. These are that:
(1) The Strasbourg Court has developed a
doctrine which prevents a Convention country from deporting or
extraditing a person when there are "substantial grounds
for believing" that there is "a real risk" that
he will be subjected to torture or inhuman or degrading treatment
or punishment in the country to which he is sent;
(2) This doctrine applied even in cases where
the person concerned represents a serious risk to the national
security or safety of the host country;
(3) The Strasbourg Court has required that
deportation applications be dealt with in accordance with formal
judicial processes[27]
so that very lengthy delays in the deportation process occur even
in cases where such grounds are not made out or are meritless;
(4) This has created an almost insoluble
problem of a significant and growing category of persons who represent
a clear threat to public safety but who cannot be removed from
the country and who remain at liberty to conduct their activities
here.
4. I should say that I do not advocate that
persons should automatically be deported or extradited from the
United Kingdom regardless of whatever consequences they may face
in the country to which they are sent. Rather I would commend
as sensible the approach approved by the Court of Appeal in the
Chahal case before it went to the Strasbourg Court, which
was that:
"the Secretary of State ought to balance
the gravity of the risk to national security if the person were
to remain against all the other circumstances, including any compassionate
circumstances and any likely risk of persecution if that person
were deported"[28]
5. A clear justification for departing from
the doctrine developed by the Strasbourg Court is provided by
Article 33 of the 1951 Geneva Refugees Convention. Article 33(1)
prevents the return of refugees to States where their life or
freedom would be threatened, but Article 33(2) provides that the
benefit of that provision "cannot be claimed by a refugee
whom there are reasonable grounds for regarding as a danger to
the security of the country in which he is." Thus, the signatory
states of that Convention explicitly contemplate that a state
should not be expected to accommodate a person who is a danger
to its own security, even if his expulsion would result in a threat
to his life or freedom. Given the overlap between the signatories
of the 1951 Convention and the European Convention, the Strasbourg
Court's doctrines represent an unwarranted departure from the
clearly expressed common intention of the Convention's contracting
states.[29]
Proposed detention power
6. The Home Secretary intends to introduce
a power to intern or detain suspected terrorists who, because
of the Soering doctrine, cannot be deported. In his statement
to the House on 15 October 2001, he mentioned that his measure
was intended to deal with deportees who would face "certain
death" if returned to their country of origin. However the
category of persons involved is in fact much wider than this,
since the doctrine applies to any person for whom there is a risk
of death, torture or inhuman or degrading treatment. The meaning
of this latter phrase has been greatly extended by interpretations
made by the courts.[30]
7. The precise nature and scope of this
intended power is not clear from the information presently available[31]
and important points remain unclear until the Bill is published.
These are (1) the precise grounds upon which the detention power
can be invoked and the evidence that will be required to demonstrate
that a person is a "terrorist threat"; (2) the precise
categories of persons who are subject to the power (I am assuming
that it will not extend to British citizens or other persons who
reside here as of right); (3) the length of time for which a person
can be detained (whether for a limited period or for the indefinite
duration of the current "emergency"); and (4) the mechanism
of the appeal process (presumably it will be to the Special Immigration
Appeals Commission).
8. The Home Office recognise that this power
would involve a departure from the United Kingdom's obligations
under Article 5 ("right to liberty") of the ECHR, and
therefore propose to invoke Article 15 which permits derogations
from the Convention "in time of war or other public emergency
threatening the life of the nation". However, they are unable
to take this course of action in order to over-ride the Soering
doctrine and permit deportations, because Article 15 does not
permit derogations from Article 3 even in times of war or emergency
and the Soering doctrine has been grafted on to Article
3 by the Strasbourg Court.
9. This constraint has led, I believe, the
proposed measure to be misdirected. Instead of tackling the root
cause of the problem which is the absolute bar on deportations
created by Soering and Chahal, the detention proposal
is a less effective alternative which is itself beset by human
rights problems. The approach will be less effective because it
will in practice be more difficult to use and invoke the power
than to carry out deportations.
10. The human rights problem that will beset
this power are as follows. First, the power itself may be ruled
to be contrary to the ECHR and unjustified by the emergency: although
a domestic challenge can be blocked by a suitably worded Act,
it can still be challenged by an individual petition to Strasbourg.
Secondly, the courts are likely to interpret restrictively the
grounds upon which the power can be used and to impose a high
evidential burden in order to justify detention. Thirdly, the
courts will be permissive about the conditions of such detention:
detainees may successfully argue that they should have the right
to free and unfettered contact with family and friends, and freedom
of correspondence: even internet access. This may make it in practice
difficult to prevent continued participation in terrorist organisational
activities by detainees.
Other asylum and deportation measures
11. It is proposed to remove access to judicial
review of decisions by the Special Immigration Appeals Commission.
There is an appeal on points of law from decisions of the Commission
to the Court of Appeal under the 1997 Act, and it is superfluous
also to have an alternative avenue of judicial review by the High
Court of a body which is itself effectively of High Court status.
12 I would venture to suggest that this
proposal does not go far enough. Even without judicial review,
the appeals can be lengthy: the deportation decision in the
Rehman case has been considered successively by the Commission,
the Court of Appeal and the House of Lords. It is three years
since the date of the deportation decision letter and the case
has been remitted to the Commission for further hearing. The Immigration
Act 1971 provided that these decisions should be taken by the
Secretary of State without appeal (although an informal advisory
procedure was employed) and this is the only effective way to
deal with such cases with the speed necessitated by the current
situation.
13. It is also proposed to enable asylum
claims to be rejected in circumstances where the Secretary of
State certifies that the person is a threat to national security.
This proposal is sensible and indeed overdue, although it should
be recognised that it does not confront or overcome the Soering
problem. Even if an asylum claim is refused on this ground, the
person concerned still then cannot be deported if the doctrine
applies.
14. It also appears from Mr Blunkett's statement
to the House that use will be made of Article 1F of the 1951 Refugees
Convention. I am not totally certain of the relationship of this
proposal to the other proposals being made, and it may become
clearer in the Bill. Article 1F permits a country to deny an asylum
claim in rather limited circumstances, where a person has committed
a crime against humanity or a "serious non-political crime"
or (an esoteric category) "acts contrary to the purposes
and principles of the United Nations". It does not cover
persons who have committed serious crimes of a political nature
which fall short of being crimes against humanity, or persons
who have not yet committed a crime but who present a serious risk
that they may do so.
IMPLEMENTATION
OF DECISIONS
OF THE
JUSTICE AND
HOME AFFAIRS
COUNCIL
15. It is proposed to include in the emergency
Bill an enabling power to allow implementation by affirmative
order or measures from the Justice and Home Affairs Council on
police and judicial cooperation.
16. I believe that this proposal is highly
objectionable for a number of reasons:
(1) It is not limited to nor justified
by the current terrorist emergency;
(2) It would seriously weaken Parliamentary
scrutiny of such measures and deprive Parliament of any ability
to amend them;
(3) it would cover issues which are
far more fundamental and important than the existing power of
delegated legislation in section 2(2) of the European Communities
Act 1972, and the bureaucratic machine would have a strong incentive,
as with the section 2(2) power, to make use of that procedure
in order to escape effective Parliamentary scrutiny of controversial
measures.
17. It is worth considering the history
of the section 2(2) power. It authorises regulations to be made
"for the purpose of implementing any Community obligation
of the United Kingdom" or "for the purpose of dealing
with matters arising out of or related to any such obligation".
This very broad power can be used even to over-ride or amend existing
Acts of Parliament.
18. Assurances about section 2(2) were given
to the House of Commons by the Government in the course of the
debates on the Bill which became the 1972 Act, when it was said
that any important changes would be made by Bill rather than by
subordinate legislation.[32]
However the use of regulations under section 2(2) has ballooned
enormously over the years and may important or controversial changes
to law, including changes to primary legislation, are made by
this route.
19. A recent court decision[33]
has confirmed that the section 2(2) power is very broad and can
be used for important and controversial measures despite the assurances
given to Parliament in 1972. The court commented on the very limited
opportunity for scrutiny in Parliament of delegated legislation
under this procedure.
20. The proposed new power would extend
the power to make law by statutory instrument from the "first
pillar" field of EC decisions to the "third pillar"
so-called intergovernmental field of Justice and Home Affairs
Co-operation. One limitation at present on the section 2(2) power
is that it cannot be used to create offences carrying more than
2 years imprisonment: presumably this limitation would not apply
to the new power. It could be used to make fundamental changes
to the functions of the courts, eg to abolish jury trial in categories
of cases.
21. The present terrorist situation does
not justify the proposed use of the statutory instrument procedure.
Parliament is quite capable of passing a Bill very rapidly when
the situation requires it. Nor can the terrorist situation possibly
provide a justification for what will apparently be a power to
legislate neither limited to terrorism nor limited in time.
22. It appears that the measures that would
be subject to implementation by this process would be framework
decisions under Article 34(2)(b) of Title VI of the Maastricht
Treaty, or Conventions under Article 34(2)(d).
23. Framework decisions "shall be binding
on the Member States as to the result to be achieved but shall
leave to the national authorities the choice of form and methods.
They shall not entail direct effect." Decisions as to the
appropriate way to achieve an end result under this country's
particular legal system could be extremely important and should
be a matter for Parliament and not for ministers. It is particularly
important that domestic measures dealing with criminal law should
be clear and precise, and that loosely or unclearly drafted EU
provisions should not be passed by regulation through into domestic
law without adequate scrutiny.
24. Conventions under Article 34(2)(d) are
recommended to the Member States "for adoption in accordance
with their respective constitutional requirements." Such
constitutional requirements in the case of the United Kingdom
would normally entail an Act of Parliament. Parliament would be
quite entitled to reject the Bill. The proposed new power, if
it extends to Conventions, will mean that the United Kingdom has
no constitutional requirement or safeguard at all, other than
an affirmative resolution vote after a short late night debate.
24 Soering v. United Kingdom A 161 (1989).
One group of writers on the Convention has expressed the view
that this case "has a strong claim to be the most influential
case that the Court has decided": Harris, O'Boyle & Warbrick,
Law of the European Convention on Human Rights. Back
25
Chahal v UK (1997) 23 EHRR 413. Back
26
"Tackling Terrorism: The European Human Rights Convention
and the Enemy Within", published by Politeia, October 2001. Back
27
Resulting in the establishment of the Special Immigration Appeals
Commission under the 1997 Act. Back
28
R v Home Secretary ex p Chahal [1995] 1 WLR 526 at 545,
per Neill LJ. Back
29
The Strasbourg Court in the Chahal case stated (para 80):
"The prohibition provided by Article 3 against ill-treatment
is equally absolute in expulsion cases. Thus, whenever substantial
grounds have been shown for believing that an individual would
face a real risk of being subjected to treatment contrary to Article
3 if removed to another State, the responsibility of the Contracting
State to safeguard him or her against such treatment is engaged
in the event of expulsion . . . In these circumstances, the activities
of the individual in question, however undesirable or dangerous,
cannot be a material consideration." (Emphasis added). Back
30
For example, in D v United Kingdom (Case No 146/1996/767/964)
the Strasbourg Court ruled that it would breach Article 3 to deport
a drug courier suffering from AIDS to a country which did not
provide adequate treatment for the disease. Back
31
The Home Secretary's statement to the House on 15 October 2001,
and Home Office Press Release of same day. Back
32
Geoffrey Rippon in the second reading debate, HC 15 Feb 1972
col 282, said: "I fully appreciate the concern of the House
at any new general power to make subordinate legislation, but
I should like to reassure hon. Members about the prospect. On
the basis of existing Community instruments, we foresee a need
for not more than four instruments under clause 2(2) in 1972 and
about another 12 in 1973." He then went on to suggest that
any important changes would be incorporated in "the ordinary
programme of departmental legislation". Back
33
R (Orange Personal Communications Ltd) v. Sec of State for
Trade and Industry [2001] 3 CMLR 781. Back
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