APPENDIX 9
Memorandum submitted by JUSTICE
1. JUSTICE is an independent all party legal
human rights organisation, which aims to improve British justice
through law reform and policy work, publications and training.
It is the British section of the International Commission of Jurists.
2. JUSTICE welcomes this inquiry by the
Home Affairs Committee. Although JUSTICE accepts that certain
additional measures may be warranted in the present circumstances,
it is particularly important that any such measures should not
be enacted without thorough scrutiny and debate. Full scrutiny
of the measures proposed should take place in Parliament, as well
as before this Committee and, amongst others, the Joint Committee
on Human Rights.
3. In this written response, JUSTICE sets
out some general observations. On the very general information
available, and without the benefit of any detailed policy or legislative
proposals, it has not been possible at this stage to offer thorough
comment. Following the publication of a Bill or Bills, JUSTICE
will comment in more detail.
4. JUSTICE would emphasise that, in order
to comply with the UK's domestic obligations under the Human Rights
Act 1998 (HRA), and its international human rights obligations,
under the European Convention on Human Rights (EHCR), the International
Covenant on Civil and Political Rights (ICCPR) and other international
instruments, any additional powers provided for following the
events of 11 September must satisfy two principles.
— they must be necessary and proportionate
in the context of the existing powers available, and must, at
minimum, incorporate procedural safeguards, to ensure that the
powers are not open to abuse.
— they must be carefully targeted at
the exceptional situation that justifies them so as to ensure
that the rights of innocent parties are protected to the fullest
extent possible.
In addition, any emergency legislation should
be subject to periodic review by Parliament, and should require
renewal at annual or other appropriate periods.
JUSTICE's response is limited to the following
issues.
Financial Controls
5. Extensive powers to recover assets and
monitor bank accounts are already available in regard to terrorist
activity. The Terrorism Act 2000 includes provisions allowing
for the confiscation of terrorist assets, subject to a very wide
definition of terrorism, encompassing both national and international
action.[48]
It also creates powers to order financial institutions to produce
customer information and makes failure to comply a criminal offence.[49]
In light of these provisions, JUSTICE would question the necessity
for further legislation.
6. Additionally, the Proceeds of Crime Bill
proposes further powers to confiscate the proceeds of a range
of criminal activity including less serious offences. JUSTICE
has already outlined its concerns regarding the Bill.[50]
Provision for the confiscation of assets, in the Proceeds of Crime
Bill or elsewhere, will need to take full account of principles
of necessity and proportionality. In addition, any legislative
provisions designed as an emergency response to a terrorist threat
should be subject to periodic renewal.
Criminal law and police co-operation
7. JUSTICE has already outlined some of
its views in this area, in its submission, to the House of Lords
European Affairs Committee.[51]
JUSTICE would emphasise that mechanisms of co-operation between
EU Member States should ensure the protection of basic procedural
guarantees including, in relation to extradition, the requirement
of double criminality, the rule of speciality, and the availability
of legal aid.
Incitement to Religious Hatred
8. JUSTICE broadly supports the extension
of the offence of incitement to racial hatred to cover religious
hatred and the extension of offences of aggravated racial offences
to include religion. This will act as an important measure to
protect vulnerable minority communities. We believe that religion
should be defined in accordance with Article 9 ECHR to include
both religion and belief.
9. Any such legislation will need to be
carefully drafted so as to ensure the protection of freedom of
expression and legitimate democratic debate. In light of this,
we would support a requirement of the Attorney General's fiat
for any such prosecution.[52]
JUSTICE believes that if such a new offence is created, the old
common law offence of blasphemy which only covers Christian beliefs
should be abolished as recommended by the Law Commission in 1985.[53]
Powers to give the police and customs services
the authority to demand the removal of facial covering or gloves
10. JUSTICE believes that this provision
has the potential to indirectly discriminate against racial and
religious minorities and hence any such provisions should be fully
compliant with both Articles 9 and 14 ECHR. JUSTICE proposes that
the terms of use of such powers, particularly in respect of facial
covering, should be carefully and conservatively defined and subject
to clear standards in regulations or Codes of Practice.
Retention of fingerprints
11. Clearly, the blanket retention of fingerprints
taken in immigration and asylum cases, for up to ten years, even
following the grant of indefinite leave to remain, and the use
of this information in criminal investigations, would have serious
implications for privacy rights and data protection. Any legislation
on this matter would have to be carefully formulated to ensure
that it represented a proportionate response.
12. JUSTICE would emphasise that the purpose
for which such records could be retained will need to be clearly
stated, and carefully circumscribed, in any legislation. The extent
to which such records will be shared with law enforcement authorities
would also need to be clarified and limited.
ASYLUM AND
IMMIGRATION
Removal of access to judicial review of SIAC decisions
13. On the information currently available,
it is not clear what purpose would be served by the removal of
judicial review from SIAC decisions. As far as JUSTICE is aware,
no judicial review of a SIAC decision has yet been taken, although
there have been appeals from decisions of SIAC.[54]
In JUSTICE's view, it would, as a matter of principle, be wrong
to remove either the possibility of judicial review, or of appeal,
from decisions of SIAC, and thereby do away with potentially important
mechanisms of scrutiny. In relation to judicial review, safeguards
against abuse are already in place, including permission to apply,
and time limits. It would not therefore appear that the availability
of judicial review is likely to give rise to any practical difficulties.
Certification of threat to national security by
the Secretary of State
14. In the brief form of the statement available
to us, the precise nature of the measure envisaged is unclear.
However, JUSTICE would question whether legislation is necessary,
given that it is already permissible, under Article 1(F) and 33(2)
of the Geneva Convention,[55]
for a claim for asylum to be refused where there are reasonable
grounds to suspect that the asylum seeker may be a threat to national
security.
15. The right of appeal to SIAC, in the
event of the exceptions under the Geneva Convention being used
provides an important judicial safeguard to ensure that the powers
in relation to national security are correctly exercised in a
non-discriminatory way. JUSTICE would not support any removal
of this right of appeal.
Detention and Derogation from Article 5 ECHR
16. JUSTICE welcomes the Government's recognition
that derogation from its obligations under Article 3 ECHR[56]
would be impermissible. In JUSTICE's view, the Government should
also proceed with great caution in considering any possible derogation
from the UK's international obligations to protect the right to
liberty. In particular, JUSTICE would question whether a derogation
from Article 5 to allow for the prolonged detention of foreign
nationals who have not been convicted of, or charged with, any
offence, can be justified as a necessary and proportionate derogation.[57]
17. Under the Terrorism Act 2000, the Government
has available to it wide powers to arrest, detain and prosecute
those suspected of involvement in both national and international
terrorism, broadly defined. Where there is evidence that an individual
is involved in terrorism, then it would be appropriate to proceed
under these provisions. In the absence of any such evidence, questions
will arise as to the arbitrary or discriminatory nature of the
detention and its compliance with the UK's obligations under Articles
2, 9, and 26 ICCPR.
18. If a decision is taken to derogate,
then it will be particularly important that adequate safeguards
are in place. Issues will also arise in relation to the length
of detention. In JUSTICE's view, any provision for indefinite
detention would be likely to constitute an impermissible derogation
from the ECHR.[58]
November 2001
48 Sections 23- 38. Back
49
Schedule 6 Back
50
Proceeds of Crime Bill, JUSTICE briefing for House of Commons
Second Reading stage. Back
51
Submission on Council Framework Decision of 19 September on a
European Arrest Warrant, October 2001. Back
52
As applies at present to prosecutions for incitement to racial
hatred. Back
53
In 1989 the Home Secretary promised that there would be no further
prosecutions by the State for blasphemy. Back
54
For example in ex parte Rehman, where the decision of SIAC was
appealed by the government. Back
55
Convention Relating to the Status of Refugees, 1951 Back
56
Article 3 protects freedom from torture, inhuman or degrading
treatment or punishment Back
57
It is accepted in relation to the European Convention on Human
Rights, that any derogation must be "strictly required by
the exigencies of the situation" (Article 15) and be necessary
and proportionate in its nature, duration and extent: Brogan v
UK, Brannigan and McBride v UK. See also in relation to the ICCPR:
Siracusa Principles on the Limitation and Derogation Provisions
in the International Covenant on Civil and Political Rights, principle
51. Back
58
The Siracusa Principles, which deal with derogation under the
ICCPR, state that "the denial of certain rights fundamental
to human dignity can never be strictly necessary in any conceivable
emergency." They go on to specify that "no person shall
be detained for an indefinite period of time, whether detained
pending judicial investigation or trial or detained without charge." Back
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