Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum submitted by Martin Howe QC


  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.


  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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