Select Committee on Home Affairs Appendices to the Minutes of Evidence


Submitted by The Law Society

  The Society welcomes the scrutiny of the Government's anti-terrorism proposals by the Home Affairs Select Committee, but is concerned that the Bill itself will not be published until after the deadline for written and oral evidence. It is essential that the detail of the Bill is properly examined and debated to make certain that it strikes the right balance between dealing with the threat of terrorism, whilst ensuring that there is due process and that fairness and justice are maintained.

  The Society has particular concerns regarding the practicalities of some of the Home Secretary's proposals so far announced, which we highlight below.


  A particularly difficult issue thrown up by the Government's proposal to amend the Immigration and Asylum Act 1999 with regard to those suspected or convicted of terrorist involvement relates to the definition of terrorism. Consideration of how the definition of "terrorist" will be framed begs the question of whether individuals such as Nelson Mandela, or democracy campaigners in China, Tibet or Burma would come within its ambit. The Home Secretary must spell out the definition of terrorism and the standards of proof in relation to this very clearly. Whilst we accept that the decision as to which organisation should be categorised as a terrorist group is properly a political decision, the decision making process itself must be open and transparent, and subject to Parliamentary debate.

  Furthermore, whether or not the Home Secretary has reasonable grounds for concluding that an individual is a member of a specified terrorist group or suspected of terrorist involvement must be a decision for the courts. A proper judicial process is crucial to ensure scrutiny of the otherwise unchallenged view of the security service as to who is a threat to national security. This is particularly necessary in view of experiences during the Gulf War, when British immigration laws were used to detain hundreds of innocent men from the Middle East on the misconceived basis that they were Iraqi agents or army officers. At the end of the war, none of the detainees were deported and some were paid compensation as a result of having been wrongly detained.


  Under Article 14 of the Universal Declaration of Human Rights, everybody has the right to seek asylum, and those suspected of terrorism should not therefore be excluded from accessing the asylum determination process. Each case should be considered on an individual basis and according to facts and evidence, not suspicions. In order to comply with international law, including the Refugee Convention, the process should begin with the determination of the claim for refugee status, and only then should the question of exclusion from the protection of the Convention be considered.

  All asylum seekers must have access to good quality legal advice throughout their case, both to protect their human rights and to ensure the efficient operation of the decision making process. Early access to good quality legal advice will improve the quality, fairness and integrity of the process as a whole and will facilitate good quality decision making from the outset, which would in turn lead to fewer appeals.

  We have very serious concerns about proposals to accelerate the court process and to streamline the existing judicial review procedure. Undue emphasis on speed militates against good and thorough decision making especially if not balanced by proper and good representation. Judicial review is a very important tool in practice, which ensures that the state does not exceed its powers. It has proved to be an essential safety net, protecting the rules of natural justice and ensuring the proper operation of the rule of law. It need not amount to a re-hearing of the facts, or to the courts substituting their judgment for the Home Secretary's—but it does ensure that if the Home Secretary were to take a decision for which there was no reasonable basis, the courts could provide a remedy.

  Whilst we appreciate the wish to deal with cases as efficiently and expeditiously as possible, this must not be done without proper safeguards and representation. There is a clear need for the courts to have scrutiny of issues relating to detention and exclusion, to ensure compliance with international law and due process in practice. There must be due process, particularly as the quality of initial decision making by the Home Office is far from satisfactory.


  We naturally welcome the fact that the Government does not propose to remove people in violation of Article 3 ECHR. However, we have concerns about the proposal to derogate from Article 5 ECHR to allow the indefinite detention of those who cannot be removed without violating Article 3. Not only are we concerned about the removal of the human rights of asylum seekers, the Government must be mindful of the need for the derogation to be approved by the EU organs. In Brannigan and McBride v UK (1994) 17 EHRR 117 the European Court accepted the validity of a derogation from Article 5, but said the derogation must be viewed by the Court as "strictly required by the exigencies of the crisis". There is no room for a wide margin of appreciation in relation to this test. Whether or not the Government's proposed derogation meets the test will be a matter for the European Court.

  Whatever the outcome of the question of the legality of the proposed derogation, and whilst we recognise the difficulties inherent in the current need to deal with terrorism, a transparent system which is properly open to judicial scrutiny must be put in place.


  We welcome in principle the proposal to create an offence of religious hatred. However, it is essential that the law is drafted with immense care to ensure that freedom of speech is not unduly inhibited or infringed.


  In view of the wide-ranging proposals in the Bill, a sunset clause should be included to ensure that its provisions can be debated and reviewed at a later stage.

November 2001

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