House of Commons - Home Affairs - Appendices to the Minutes of Evidence

Select Committee on Home Affairs Appendices to the Minutes of Evidence

APPENDIX 11

Memorandum submitted by Liberty

INTRODUCTION

Established in 1930 as the "National Council for Civil Liberties", Liberty began its long tradition of research on anti-terrorist legislation with its first commentary on special powers in Northern Ireland in 1936.

Liberty is grateful for the opportunity to contribute to the Committee's deliberations and does so with the following three principles in mind:

— The horrific events of 11 September are of the gravest concern.

— Any legislative response must be rational, necessary and proportionate. Ultimately, liberal democracies do not defend their way of life by dismantling the very rights and freedoms which distinguish them from their enemies.

— Any legislation (particularly more draconian measures) must be effective rather than counter-productive.

GENERAL

Do the events of September necessitate changes in the law?

The very notion of specific "counter-terrorism legislation" is questionable in principle. The ordinary criminal law of this country is more than equipped to balance the competing interests of individual rights and public protection via its mechanisms for impugning criminal acts, attempts and conspiracies and for allowing pre-trial detention (subject to appropriate thresholds and other safeguards). The obvious danger of any distinct anti-terrorist law is that of creating a second-class criminal justice system affording lesser protections to the individual (either in terms of the conduct for which he may be criminalized[59] or in the procedure under which his case will be heard[60]).

In any event, we already have a highly developed and recently revised body of counter-terrorism law in this country (principally contained in the Terrorism Act 2000 and the Immigration Acts). This sits alongside an expansive body of criminal law (including offences over which our courts enjoy extra-territorial jurisdiction[61]).

Some of the more notable elements of that present law include:

— Exclusion provisions under the 1951 UN Refugee Convention.

Our experience is not that of counter-terrorist experts. However we have as yet, heard nothing in government statements pointing to specific gaps in current U.K legislation which have been exposed by the recent U.S experience.

We are conscious of the understandable instinct of lawyers and legislators to see amendments to the statute book as an obvious means of achieving policy and operational outcomes. Crucially however, legislation will not answer questions of resources or of intelligence. Further, any legislation which alienates minority communities, could make the task of obtaining counter-terrorist intelligence more difficult.

Is there anything to be learnt from the experience in Northern Ireland or is the present situation different?

There are many obvious differences between the predicament of successive UK Governments in relation to Northern Ireland and the threat which is currently under discussion. Nonetheless, it seems to us that there is at least one obvious lesson to be learnt.

Injustice—whether actual or perceived or both, can lead to the alienation and radicalisation of particular communities. Departure by the executive from the ordinary rule of law would seem to be one of the surest ways of sending otherwise moderate and law abiding people into the arms of organisations who see armed struggle as a legitimate and effective means for the achievement of political ends.

The anti-terrorism laws in this country have led to some of the worst human rights abuses in this country over the last 25 years, contributed to miscarriages of justice and have led to the unnecessary detention of thousands of innocent people, mainly Irish. Only a tiny percentage of those detained have ever been charged and almost without exception they could have been detained under ordinary criminal laws.

Are the new proposals likely to be effective?

Of course, we have yet to see any draft legislation or even policy papers. Our understanding of the proposals is based upon a patchwork of Ministerial speeches, interviews and press releases etc. We apologise in advance, for any misconceptions about the detail of the Government's proposals.

However, in our view, some of the principal proposals (and the most controversial measures—as we understand them) are unlikely to be effective. Indeed, they may be positively counter-productive to the crucial enterprise of unifying the country during this extremely difficult time.

ASYLUM AND IMMIGRATION

Indefinite detention

Is this different to internment?

Any policy of indefinite detention based upon suspicions of terrorist association or activity rather then criminal conviction would be analogous to internment as commonly understood and in particular, to internment as formerly operated in Northern Ireland. (See earlier comments as to the likely effect on particular communities).

Is this a proportionate response to the current situation?

Existing legislation allows for the deportation of non-UK citizens whose presence in our country is "not conducive to the public good" (including on grounds of national security). Immigrants may be detained (and have been detained for long periods) pending examination, appeal and removal.

Some people face torture in the only country to which they may be returned. Under Article 3 of the European Convention on Human Rights ("ECHR") (the prohibition on torture), these people are effectively irremovable from the UK. However, there is nothing to prevent such people being detained, charged and prosecuted in the UK for any number of terrorist or criminal offences (including those over which we assert extra-territorial jurisdiction).

Indefinite detention without the prospect or deportation, extradition or trial (or internment) proved a particularly inflammatory policy in the context of Northern Ireland. In our view, it could prove even more ineffective and counter-productive in the present context:

— The current threat is potentially posed by people from any number of nationalities (including no doubt - some UK citizens). They will no doubt be based all over the country.

— There will be an obvious perception that the authorities are rounding up people of the Muslim religious faith. This could have a disastrous effect upon community relations at a time when the Government is keen to persuade large numbers of law-abiding Muslims in the UK and beyond, that it is not at war with Islam.

— The authorities will have to be heavily dependent upon the intelligence of foreign governments as a basis for suspicion and detention. Some of these governments lack democratic and human rights credentials and some of the suspects will be dissidents/asylum seekers. This will add to the sense of injustice.

— There is no imminent threat of the complete breakdown of civil society in the UK.

— Neither the US nor any Council of Europe country (such countries being signatory to the ECHR) appears to have considered it necessary to adopt a policy of indefinite detention.

Is the proposed derogation from Article 5 of the ECHR necessary?

See above and annexed[66] article from the New Law Journal.

A policy of indefinite detention without trial would indeed require derogation from Article 5. However, Parliament should view any such derogation with great scepticism. In addition to the substantive indefinite detention issue, extreme caution should be exercised before derogating from fundamental human rights. This is all the more concerning so soon after the implementation of the Human Rights Act 1998 ("HRA") and before there has been an a real opportunity for human rights to become embedded in the political, legal and wider social aspects of our constitutional culture. Such a derogation could in principle, send a very negative signal to the country as to the value which the executive places upon constitutional rights and the rule of law. Even in the present climate, it is hard to conceive of the US legislature countenancing an abrogation of American constitutional rights as an appropriate method of combating terrorism.

Can it be challenged under Article 15/ or on other grounds?

See annex as to the potential for legal challenge in the European Court of Human Rights (under Article 15) and in the domestic courts (on legality, rationality and proportionality grounds).

SIAC Appeals/ Judicial Review

Can access to judicial review be excluded in relation to SIAC decisions?

Over the years, there have been various attempts by the legislature to exclude or limit the judicial review and appellate jurisdictions of the higher courts in relation to executive decisions or those of lower courts and tribunals. The general lesson to be learned from the courts treatment of such legislative attempts is that whilst adopting considerable deference to Parliamentary intention in terms of which is the appropriate jurisdictional route for the challenge of administrative decisions[67], the courts will not countenance ouster provisions which attempt to prohibit all judicial scrutiny. Further, the courts are well equipped (by the common law let alone the HRA).[68]

In any event, Parliament should be slow to attempt to frustrate judicial scrutiny and the rule of law, particularly where fundamental rights are at stake and the perception of legitimacy in administrative/executive action is all the more important. Those who fear delayed decision-making or an over-interventionist judiciary should remember that UK courts have a long and thriving tradition of deference to the Government in matters relating to national security. A UK Government might well prefer the scrutiny of domestic courts to that of the Strasbourg court in this context.

Rejection of Asylum claims on grounds of suspected terrorism

Will the mechanism of the Secretary of State's certificate (that X's presence is not conducive to the public good) be of help?

The 1951 Refugee Convention effectively provides 2 grounds for denying protection which are potentially relevant to the present context[69]:

Article 1F provides that the Convention "shall not" apply where a refugee has committed:

— A war crime or a crime against humanity as defined in relevant international instruments.

— An act contrary to the purposes and principles of the UN or—

— A serious non-political crime committed outside the country of refuge prior to admission to the country of refuge.

Article 1F is to be interpreted restrictively. Further, in any event, this test of disapplication is far more limited than any test of "suspected terrorism" or of exclusion or expulsion being "conducive to the public good"[70] (eg on grounds of national security). Significant jurisprudence from courts around the western world suggests both the limited scope of the exclusion and that the burden rests upon the state attempting to maintain the exclusion.

Secondly, Article 33(2) allows for the expulsion of a refugee who:

— May on reasonable grounds, be regarded as a danger to the security of the country of refuge—

— Or who has been convicted of a particularly serious crime in the country of refuge and constitutes a danger to the community.

Unlike Article 1F, Article 33(2) is not mandatory. Thus issues of proportionality (ie the threat posed by the refugee balanced against the risk to him if expelled) must be relevant to the legality of expulsion.

Whilst the personal certificate of the SSHD that the expulsion of Refugee X is "conducive to the public good" on grounds of national security may be a convenient start to the consideration of expulsion under the state security head. However, this cannot be the end of the matter as far as the courts are concerned, when the public good must be balanced against fundamental rights under the Refugee Convention.[71]

Neither relevant article of the 1951 Convention can override the absolute rights of a refugee under Article 3 of the ECHR not to be expelled to a country where he will face torture.

Re: the definition of "national security"—are there national security issues going beyond those relating to terrorism? Does this matter?

Whilst the traditional concept of "terrorism" is highly controversial to stateless groups in particular, the general approach of much of the international community has been to regard classic "terrorism" in terms of violent acts by politically motivated non-state actors aimed at influencing states (by way of harm or threats to civilians in particular).

By contrast, any classic understanding of "national security" will also cover threats to a state's security by an enemy state (as in the context of war).

In our submission, the important thing is that Parliament ensures the maintenance of the rule of law and adequate judicial scrutiny in the present context. If this is achieved, and the rights of individuals are adequately protected, the distinction between state and non-state actors may not be vital in the domestic context (though the associated controversy will no doubt continue internationally).

Will there need to be specific minimum evidence in relation to certificates?

There can be little doubt that certificates based upon factual assumptions (with no or scant evidence) will not stand up to judicial scrutiny:

"...the factual basis for the executive's opinion that deportation would be in the interests of national security must be established by evidence."

SSHD v Rehman

What are the implications of SSHD v Rehman?

Most commentators agree that in this decision, the House of Lords has allowed a great degree of deference to the executive in terms of:

— Allowing the executive the primary judgment as to the parameters of "national security" and its demands.

However, in the present context, it must be remembered that the Rehman case concerned the executive's broad powers to deport in the absence of a competing Refugee Convention Issue or other significant concern as to fundamental rights.

It is far from safe to assume that the Courts will take the same generous approach in an Asylum or serious ECHR context.

INCITEMENT TO RELIGIOUS HATRED

Will the new proposed offence be effective?

We are far from convinced that this new criminal offence (aimed at speech rather than threats or harm to persons or property) will be effective in the significant struggle to end religious discrimination (eg by employers and institutions) and build a cohesive and tolerant liberal society. Indeed, in our view, the criminal law is rarely the appropriate device for achieving such pluralistic social outcomes. In any event, the struggle is likely to be made far harder by draconian measures which mark out minority communities (see above).

Our understanding is of a widely held feeling amongst minority ethnic communities that the existing offence of "inciting racial hatred"[74] has often been used against the ethnic communities it was intended to protect.

In any event, the concepts of "inciting racial hatred" and "inciting religious hatred" are not analogous. The former is aimed at the hatred of a group of people. The latter may be categorised by the hatred of a body of ideas. In this respect, such a new offence could amount to the extension of the outmoded and illiberal law of blasphemy via the back door.

Will it be divisive?

In our view, the creation of the new offence could be particularly divisive and counter-productive at a time when free religious discourse (both within and between faiths) may be more important than ever. In our view, a climate of religious freedom and tolerance will not be created by criminal censorship. It could be extremely dangerous to provide martyrdom for religious extremists of whatever faith by driving their speech underground. Further, the possibility of Muslims themselves facing prosecution (at the complaint of other Muslims or members of other faiths) cannot be ruled out. In any event, perceptions of prosecution contrary to free speech would be extremely counter-productive to the aim of social cohesion.

What are the alternatives?

It is already a crime (indictable at common law) to solicit or incite another to commit a crime. Thus, those who incite eg violence, harassment or damage to property of members of particular religious groups are already breaching the criminal law. Further, the common law has recognised "incitement" on a fairly broad basis (eg including those who advertise products with an obvious criminal use). If the Government has any real concerns about the effectiveness of such prosecution, we would advocate, consideration of resources, community liaison and if necessary, legislating to clarify the general common law of inciting substantive criminal offences.

Further, Parliament should take prompt action to deal with the anomaly in our anti-discrimination law (religious minorities being excluded from the piece-meal legislative protection provided in relation to sex and race discrimination).

RAISING THE PENALTY FOR MAKING AN "ANTHRAX HOAX" RETROSPECTIVELY

On Saturday 20 October 2001, there were sporadic media reports that "as of mid-night (20-21 October)", those who raised false alarms in relation to the anthrax virus would face custodial penalties of up to seven years (as opposed to the present custodial maximum of 6 months).

Our understanding is of Government sources briefing newspapers on Friday 19 October as if a new law were in fact coming into force the next day.

In our view, this action displays both a profound disrespect for Parliamentary process and a fundamental misunderstanding of the old common law tradition against retrospective punishment (as now enshrined in Article 7 of the ECHR).

Article 7.1 provides that:

Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

Article 7.2 makes clear that the provision shall not prejudice the trial and punishment of acts or omissions which (when committed) were criminal according to the general principles of law as recognised by civilised nations. The War Crimes Act 1991 created retrospective criminal liability under our domestic law. However, crimes against humanity are the very types of offences contemplated by the Article 7.2 proviso. We find it very hard to see any basis for squaring the announcement of 20 October with the requirements of Article 7 and the ordinary rule of law.

No doubt there may be some advisers to Government who feel that the pre-announcement in the media may discharge the above-mentioned obligation or mitigate any illegality in relation to eventual sentencing. We would point out, that developments in the military campaign in Afghanistan drowned any widespread media exposure of this announcement. In any event, we feel sure that the Committee will be well placed to remind the Government of the crucial difference between the legal and constitutional effects of media announcements as to Government legislative intention on the one hand, and the parliamentary passage of legislation on the other.

EXTRADITION

We have no objection to the aspiration of speeding up the extradition process or that of allowing closer EU co-operation in this area. However, to be taken from once's home and family to face detention and trial far away under foreign laws (perhaps in a foreign language) is a very serious matter. Parliament should ensure that adequate domestic judicial safeguards (for testing the basic evidence against an accused and the fairness of foreign legal regimes) remain.

THE COLLECTION RETENTION AND DISSEMINATION OF COMMUNICATION "TRAFFIC INFORMATION"

The Government appears to be suggesting that those companies that provide telephone and communication systems should keep communications information for long periods just in case that information might be helpful in the investigation of terrorist offences. Currently such companies collect this information for billing purposes and destroy the material once it is no long necessary (once the bill has been paid). This practice is in line with the data protection principle that "personal data held for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes."

The Regulation of Investigatory Powers Act regulates the process whereby law enforcement agencies obtain access to this information. There is no independent check on the decision to access material and the agency does not, for instance, need to obtain a warrant from a court.

To require or allow this information to be stored will violate the data protection principle and does in effect mean that millions of innocent users of communications systems, including email and the internet will have there private communications information stored on the off chance that it might be of use in the future. The absence of any adequate safeguards before this material can be accessed by the police and others creates real threats to privacy.

We are particularly concerned to see the report in The Guardian (7 November 2001) that this proposal, although promoted as a response to the terrorist threat, will not be so restricted.

THE USE OF THE PRODUCT OF TELEPHONE INTERCEPTS IN EVIDENCE

In some reports it has been suggested that the ban on the use in evidence of conversations recorded as a result of telephone intercept warrant might be lifted. The reason that this material cannot be used in court was because of a strict rule imposed by the Interception of Communications Act 1985 and re-imposed only last year in the Regulation of Investigatory Powers Act. The apparent reason for this policy had nothing to do with civil liberties or human rights but resulted from a fear by the police and the Security Service that if the full extent and nature of the use of telephone taps became known criminals and terrorists would alter their practice and be more cautious in their use of the telephone.

Liberty would not be opposed to changing this policy provided at the same time the procedure for authorising warrants was changed at the same time. At present authorisation is the responsibility of the Secretary of State. We believe that politicians should have no role in making such potentially intrusive decisions and that the responsibility should rest with the courts. Apart from the obvious ability of the courts to consider issues of fairness and human rights in deliberation (especially if some variation of the SIAC special advocate role was built in) we cannot see how any Home Secretary can properly give the time necessary to assess each application. The numbers of warrants, excluding those issued on the basis of national security, issued by the Home Secretary was over 1,400.

CONCLUSION

We believe that the UK has some of the most draconian anti-terrorism measures anywhere in the Western World and further measures are likely to violate fundamental principles, be counter-productive in the long term and at the same time are unlikely to be effective. We would therefore urge caution before new laws are put in place. Any new proposals should be subject to proper consideration by Parliament and should not be rushed through. Lastly we believe that such proposals should be time limited with "sunset clauses" and should create systems for an independent review of the measures by an independent person of integrity respected within the human rights community.

November 2001

59 eg guilt by association such as by membership of a proscribed organisation. Back

60 eg reversing the burden of proof, national security certificates etc. Back

61 Including murder, offences on aircraft, torture and many others. Back

62 Sections 3 and 11-13 of the Terrorism Act 2000. Back

63 Section 41 of and Schedule 8 to the Terrorism Act 2000. Back

64 Section 1 of the Terrorism Act 2000. Back

65 The Special Immigration Appeals Commission Act 1997. Back

66 Not printed. Back

67 See eg R v DPP, ex p Kebilene (HL) 28 October 1999 as to judicial deference to section 29(3) of the Supreme Court Act 1981. Back

68 As to attempted ouster of JR, see Anisminic v Foreign Compensation Commission [1969] 2.A.C.147 and R v SSHD, ex p Fayed [1997] 1WLR. As to overcoming restrictions upon statutory appellate jurisdiction in the context of human rights, see eg R v Lichniak v Pyrah (Divisional Court/Court of Appeal-Crim Division) 2 May 2001. Back

69 68 See UNHCR Handbook, "Macdonald's Immigration Law and Practice" (5th Edition 2001, pp 523 et seq.) and Goodwin-Gill-"The Refugee in International Asylum Law" (2nd Edition 1996). Back