Joint Committee On Human Rights Appendices to the Minutes of Evidence

4.  Memorandum from Liberty (the National Council for Civil Liberties) on the Anti-Terrorism, Crime and Security Bill 2001



  Established in 1930 as the "National Council for Civil Liberties", Liberty began its long tradition of research and lobbying on anti-terrorist legislation with its first commentary on special powers in Northern Ireland in 1936.[35]

  Liberty's concerns about terrorism measures are reflected in the fact that of the more than 7,000 people detained in Britain (i.e. not including Northern Ireland) under the Prevention of Terrorism Act, the vast majority have been released without charge and only a tiny fraction have ever been charged with anything remotely resembling terrorism. To take an example in 1992, when the activities of the IRA and others were still at their height, 160 people were arrested under the Act in Britain. Of these eight were charged with murder, conspiracy or possession of explosives, three were deported or excluded, twelve were charged with theft or fraud and eight with other minor offences. There is no evidence to suggest that these people charged could not have been arrested under the ordinary criminal law. However all of the others arrested, none of whom were convicted of any crime, were subjected to unnecessary arrest and detention. The anti-terrorism laws in this country have led to some of the worst human rights abuses in this country over the last 30 years, contributed to miscarriages of justice and have led to the unnecessary detention of thousands of innocent people, mainly Irish.


Indefinite detention

  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).

  In deciding who to detain 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 and or asylum seekers. This will add to the sense of injustice.

  There will be an appeal but the person and his or her lawyer will not be entitled to see all the evidence and the appeal panel will have to exclude them when they hear that secret material. The case will not have to be proved beyond reasonable doubt, the presumption of innocence will not apply and the usual quality checks on the evidence will be missing.

  These measures will only apply to foreigners and in particular those who cannot be deported because they are likely to be tortured or killed in the country that they are sent to. These people could be detained for long periods and possibly indefinitely.

  There are difficult decisions to be made but there are other alternatives. Those who are planning or committing criminal offences in the United Kingdom can be prosecuted here. Secondly the new draconian Terrorism Act, which only came into force earlier this year, extends the possibilities of prosecution here for offences committed in other countries. Thirdly, in some cases, it will be possible to send people to face trial for offences that they have committed in other countries back to those other countries. Fourthly the security services here could keep people under surveillance given all their new powers in the Regulation of Investigatory Powers Act and ensure that they commit no offences here.

  Internment has been tried before. It was tried in Northern Ireland and the consequence of intelligence being wrong was that hundreds of innocent nationalists were locked up.[36] Its only "success" was to drive many more people into the arms of the terrorists. It was tried more recently during the Gulf War when again innocent people were locked up for no good reasons, fortunately the War did not last long and they were all released.

  This time those interned are likely all to be Moslems. Some of them will be not have been convicted of any crimes and 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.


  So significant is this measure that the government, only one year after enshrining the European Convention on Human Rights into our law, is having to opt out or "derogate" from one of its fundamental provisions, the prohibition on arbitrary detention. Such derogations are supposed to be reserved for "war or other public emergencies threatening the life of the nation". There is no imminent threat of the complete breakdown of civil society in the UK. We have not reached this point as yet and although there are threats, the nation itself is not in jeopardy. That is why of the forty or so countries signed up to the Convention we are the only country indicating we want to opt out. Not even in the US where the atrocities happened has the government considered it necessary to adopt a policy of indefinite detention.


  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.


  What is being proposed relates to circumstances where a non-British National is suspected of involvement in terrorism and the government is contemplating deportation because the person's presence in the United Kingdom is "not conducive to the public good".[37] Some such people will not be able to be deported because, if sent to the only country that will accept them, they are likely to be subjected to treatment there that violates Article 3 of the Convention.[38]

  In such circumstances the proposal is that these people will be detained until they are no longer a threat or a country can be found to accept them which will protect them against Article 3 violations. Such indefinite detention is likely to violate Article 5 of the Convention. The relevant parts of provision state:

    "5(1) . . . No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (f) the lawful arrest or detention . . . of a person against whom action is being taken with a view to deportation or extradition."

  Any such detention is limited in time because it requires active steps to be taken to deport or to extradite. As a result any unlimited period of detention would be unlawful under the Convention and therefore contrary to the Human Rights Act.[39]

  A derogation from parts of the obligations under the Convention can be made in specified circumstances and the Home Secretary is exercising this option. Article 15(1) states:

    "In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its obligations under international law."

  Certain Convention rights are however non-derogable.[40]


  The Human Rights Act 1998 (HRA) which incorporated the Convention into domestic law also deals with the issue of derogations. The Articles of the Convention which are incorporated are subject to any "designated derogation" or reservation but there is no requirement on the face of the Act that the derogation be lawful.

  In order for a derogation to be a "designated" derogation for the purposes of the HRA two things need to have happened. The United Kingdom must formally notify the derogation to the Council of Europe[41] and the Secretary of State must also make an order designating the derogation.

  It is arguable that section 3 of the HRA might allow the courts to attach the word "lawful" to these provisions allowing a challenge to a derogation in domestic proceedings. Further any designation order would, after all, be secondary legislation and therefore could be scrutinised by the courts on basic rationality and vires grounds, perhaps against the standard of proportionality.[42]

  However all such challenges are denied by Clause 30 except by using the Special Immigration Appeals Commission.


  It seems likely that if the Government were to make a derogation from the Convention that a challenge to the lawfulness of that derogation would eventually reach the courts.[43] It is therefore important to examine the approach the Strasbourg Court has taken to applying Article 15 and the conclusions reached.

  In Lawless v Ireland (No 3)[44] the Court stated that the words "other public emergency threatening the life of the nation" "refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed."

  In an earlier case the European Commission of Human Rights took the view that the test in Article 15 had not been satisfied despite giving the State the benefit of the margin of appreciation.[45] This case concerned applications by a number of Scandinavian countries against the regime set up by the "Greek Colonels" in 1967. In that case the government argued that there had been a decline in public order over a number of months bringing the country to near anarchy. Between 1944 and 1967 there had been forty-one successive governments

    "the Parliamentary system had virtually broken down, with party corruption and violent incidents in the chamber. The machinery of the State was paralysed. There were daily strikes and warnings that the economy was on the verge of bankruptcy."

    "vehicles and houses under construction were set on fire and barricades were erected in the centre of Athens . . . hundreds of policemen were killed or injured. In July 1965, 299 civilians and 250 policemen were injured."

    "the Communists began in 1966 to prepare for armed insurrection. Their "clandestine apparatus" included shock brigades and groups which observed officers of the Army and security forces. The Communists were assembly weapons and disposed of hiding places and depots for equipment. A paramilitary organisation had secretly been set up."

  When the HRA came into force there was one derogation in place concerning the length of pre-trial, pre-charge detention under prevention of terrorism legislation.[46] This derogation was entered following the decision in Brogan v UK[47] in which the European Court of Human Rights held the UK to be in breach of Article 5. The validity of the derogation was subsequently challenged in Brannigan and McBride v UK.[48] In that case the Court decided that the national authorities are

    "[b]y reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it."

  It therefore afforded the Government a wide margin of appreciation. However it retained a supervisory role for itself in holding that "[I]t is for the Court to rule on whether inter alia the States have gone beyond the "extent strictly required by the exigencies" of the crisis." However the Court was not unanimous in its support for the government's position.

  Although the atrocities in the United States were shocking and substantial and although some groups have identified the United Kingdom as a legitimate target of similar attacks, it is not clear whether the Court would accept that there is an "emergency threatening the life of the nation". The circumstances as they apply to the UK are not the same as the situation in the United States and the emergency is not of the same order as previously existed in Northern Ireland and as pleaded by the government in Brannigan. For instance the Home Secretary stated on 15 October that "[there] is no immediate intelligence pointing to a specific threat to the United Kingdom."

  The second question that the Court must consider in any challenge is the extent to which the provisions that violate Article 5 are "strictly required" by this emergency and designed, in this case, to avoid further terrorist incidents. The European Commission of Human Rights in Ireland v UK[49] stated:

    "There must be a link between the facts of the emergency on the one hand and the measures chosen to deal with it on the other. Moreover, the obligations under the Convention do not entirely disappear. They can only be suspended or modified "to the extent that is strictly required" as provided in Article 15."

  This requires as Judge Martens states a consideration of the second question as to whether

    "the derogation is to "the extent strictly required by the exigencies of the situation". The wording clearly calls for a closer scrutiny than the words "necessary in a democratic society" which appear in the second paragraph of Article 8-11. Consequently, with respect to this second question there is, if at all, certainly no room for a wide margin of appreciation."

  Lastly, given the nature of terrorist threats to European countries generally, the question will need to be asked as to why is it that the vast majority of the other forty or so countries signed up to the Convention do not feel that similar measures are so "strictly required" in their countries. Overcoming this hurdle will be particularly difficult given that the assessment of the lawfulness of the measure will be by a majority of judges who come from those other countries who have not found it necessary to design provisions which involve indefinite detention without trial and which breach a fundamental right of the Convention.

  Liberty has commissioned an opinion from David Pannick QC a leading human rights and public law QC in this country. He has acted for and against the Government over many years and has been the Home Office's silk of first preference through the Howard, Straw and Blunkett periods. In his view:

    "I therefore conclude that the derogation from Article 5(1) of the European Convention on Human Rights is unlawful in the current circumstances because it does not satisfy the criteria contained in Article 15 of the Convention."


Clause 21

  Whilst we welcome the government's attempts to improve the provisions of the Bill by making or putting down amendments none of the changes change the fundamental provisions in this Part of the Bill.

  Despite the addition of the word "reasonable" in clause 21(1) the Secretary of State still only has to suspect a person is an international terrorist rather needing to believe that person is a terrorist (cf. 21(1)(a)).

  Originally in clause 21(2) the definitions are very wide ranging allowing a person to be detained if they merely have "links" with another person. The government has put tabled an amendment which will restrict this provision so that it only applies to a person who has links with an international terrorist group. A further amendment restricts this further so that a person will only have links if he or she supports or assists an international terrorist group.

  These are welcome amendments nevertheless we cannot see why it is necessary to extend the remit of this provision beyond those in clause 21(2)(a) and (b). If the Secretary of State does not suspect that a person is or has been concerned in the commission, preparation or instigation of acts of international terrorism nor is a member of or belongs to an international terrorist group then that person should not be detained indefinitely. To detain any other person merely on the basis of some other very remotes links is wrong and gives the Secretary of State a very considerable discretion.

  Furthermore the Secretary of State only has to suspect that the group, or that the person involved, is concerned with the commission, preparation or instigation of acts of terrorism.

  This degree of "flexibility" is in addition to the problematic and vague definition of terrorism in the 2000 Act which is defined as:

    the use or threat, for the purpose of advancing a political, religious or ideological cause, of action which-

    (a)  involves serious violence against any person or property,

    (b)  endangers the life of any person, or

    (c)  creates a serious risk to the health or safety of the public or a section of the public."

  This goes beyond the previous definition in the following ways:

    (1)  By the addition of religious or ideological causes to that of "political ends".

    (2)  By including threats. Would threats to overturn the regime of Saddam Hussein by politicians be sufficient?

    (3)  By including "violence" to property. The terrorism provisions in the past have been reserved for the most serious cases. In particular where the offences might involve death or serious injury. To dilute this to involve "violence" to property is wrong. It is also surprising to find no definition of this. Usually damage to property is described as criminal damage.

    (4)  By including health or safety. Again this is a further dilution of the definition.

  The difficulty with this definition is that it is capable of encompassing activities which whilst unlawful cannot properly be regarded as terrorism, e.g. animal rights activism or even in certain circumstances civil disobedience, e.g. the tree protesters, animal export protesters, or even some forms of industrial action.[50]

  We have argued before that a more focused definition is provided by the Reinsurance (Acts of Terrorism) Act 1993 (providing for the payment of monies by the Secretary of State in respect of loss or damage to property resulting from or consequential upon acts of terrorism): section 2 provides that:

    "acts of terrorism . . . means acts of persons acting on behalf of, or in connection with, any organisation which carries out activities directed towards the overthrowing or influencing, by force or violence, of Her Majesty's government in the United Kingdom or any other government de jure or de facto. "

  This definition better captures the essence of terrorism as the use of violence by or against the State in order to intimidate or coerce, cf OED, 2nd Ed, 1989.

Clause 27

  The scope of appeals to the Special Immigration Appeals Commission have been recently restricted by the House of Lords in the case 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.

    —  Allowing various grounds of being "non-conducive to the public good"[51] to be read conjunctively rather than disjunctively so that eg. "national security" threats may not be directly aimed at the United Kingdom itself.

  Clause 27(4) also prevent appeals from the Commission to the courts in "derogation matters" (see above).

Clause 29

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[52], 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).[53]

  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.

  We must make it clear that we are not suggesting that judicial review should be substituted for any appeal to the Commission but should be available as a remedy of last resort.

35   In 1935, a year after the organisation was established, a Commission of Inquiry was sent to Belfast to examine the operation of the Special Powers Act, a precursor of the modern Emergency Provisions and Prevention of Terrorism Acts. Liberty helped to establish the Northern Ireland Civil Rights Association in the early 1960s, and brought the first legal challenges based on human rights to the Prevention of Terrorism Act. Back

36   In 1971 342 IRA suspects were interned and 104 of these had to be released within two days. Back

37   Section 3 (5) Immigration Act 1971. Back

38   See Chahal v UK 23 EHRR 413. Back

39   "If such proceedings are not pursued with due diligence, the detention will cease to be permissable" Chahal, para 113. Back

40   Including the right to life (Article 2) and the prohibition on torture, inhuman or degrading treatment or punishment (Article 3) but not the right to liberty and freedom from arbitrary detention (Article 5). Back

41   This is also a requirement of a lawful derogation for the purposes of Article 15 itself, see Cyprus v Turkey 4 EHRR 48 Back

42   R v Secretary of State for the Home Department, ex parte Daly, [2001] 2 WLR 1622, 3 ALL ER 433. Back

43   Liberty would in practice seek to find, help with or create such a challenge. Back

44   1 EHRR 15, para 28. Back

45   The Greek case, 12 YB 1 (1969). Back

46   Sch 3 Pt I. This derogation was withdrawn earlier this year once the Terrorism Act 2000 came into force. This Act provided judicial rather than political authorisation for extended periods of detention for interrogation and cured the mischief that had been identified in Brogan. Back

47   (1989) 11 EHRR 117. Back

48   (1994) 17 EHRR 539. Back

49   (1978) 2 EHRR 25. Back

50   The Association of Chief Police Officers has apparently suggested that the anti-terrorist squad should be asked to gather intelligence on environmental activists, Guardian, March 27, 1996. Of course in this specific provision the "terrorism" has to be "international. Back

51   Eg. "national security", "the relations between the UK and any other country" and "other reasons of a political nature" under section 15(3) of the Immigration Act 1971. Back

52   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

53   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 20 Back

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