Select Committee on Home Affairs Appendices to the Minutes of Evidence


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.


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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