Joint Committee On Human Rights

Joint Committee On Human Rights Eighteenth Report

1 Report

1. On 25 February 2004 the Home Secretary published a discussion paper, Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society.[1]

2. The discussion paper invites a wide-ranging public debate on how the Government should seek to strike the balance between security on the one hand and liberty on the other in the present context of a heightened threat from international terrorism.[2] It also sets out[3] the Government's response to the recommendations made by the Privy Counsellor Review Committee's Report on the Anti-Terrorism, Crime and Security Act 2001 ("the Newton Report").[4]

3. The Home Secretary has indicated that he would very much welcome the JCHR's thoughts on the ideas in his discussion paper, and expressed the hope that he would be able to engage with the Committee on the matters raised by the discussion paper, particularly in relation to Part 4 of the Anti-terrorism, Crime and Security Act 2001 ("ATCSA 2001").[5]

4. We strongly agree with the central conclusion of the Newton Report, that the provisions for the indefinite detention of persons suspected of terrorism under Part 4 ATCSA 2001 should be replaced with new legislation which would deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators, and which would not require derogation from the ECHR.[6] Our reason for this view is simple. In our first report on what was then the Anti-terrorism, Crime and Security Bill we said—

As general background to our considerations, we have borne in mind that any novel powers which are proposed should be clearly directed to words combatting a novel threat, and should not be used to introduce powers for more wide-ranging purposes which would not have received parliamentary support but for current concerns about terrorism and fear of attack. The international and national law of human rights, and in particular the provisions of the Human Rights Act 1998, for which we were appointed as the parliamentary guardians, represent core values of a democratic society such as individual autonomy, the rule of law, and the right to dissent, and these must not lightly be compromised or cast away. It is precisely those values which terrorists seek to repudiate and undermine.

We have had to consider the Anti-terrorism, Crime and Security Bill at great speed. We are very conscious of the circumstances which gave birth to it, and the threat that many citizens of this country still feel to their safety after the terrible events of 11 September. However, Parliament should take a long view, and resist the temptation to grant powers to governments which compromise the rights and liberties of individuals. The situations which may appear to justify the granting of such powers are temporary—the loss of freedom is often permanent.

The Director-General of the Security Service, Eliza Manningham-Buller, recently stated:

I see no prospect of a significant reduction in the threat posed to the UK and its interests from international terrorism over the next five years, and I fear for a considerable number of years thereafter.[7]

Derogations from human rights obligations are permitted in order to deal with emergencies. They are intended to be temporary. According to the Government and the Security Service, the UK now faces a near-permanent emergency.

5. In our view, this makes it absolutely imperative that an alternative way be found to deal with the threat that exists without derogating indefinitely from the most basic human rights obligations such as the right to liberty. Long-term derogations from human rights obligations have a corrosive effect on the culture of respect for human rights on which the effective protection of all rights depends. They undermine the State's commitment to human rights and the rule of law, and diminish the State's standing in the international community. With imagination and sufficient commitment to the protection of human rights, alternative ways of dealing with the threat from international terrorism can be found which do not involve the UK open-endedly derogating from its human rights obligations.

6. We therefore decided to respond to the Home Secretary's invitation by publishing our own report on the human rights issues raised by the discussion paper. On 10 June 2004 we announced that we would be holding an inquiry into the Home Office review. We have taken oral evidence from the DPP, Lord Carlile of Berriew, Lord Newton of Braintree and Baroness Hayman, and received a number of written representations. We have also commissioned a comparative survey of measures taken in other countries in response to the heightened level of threat from international terrorism, and held an informal discussion with Roger Errera, Conseiller d'Etat, about some of the measures adopted in France.

The Human Rights Framework

7. Political debate about the fight against terrorism is often conducted in terms of a choice between security and public safety on the one hand and human rights and the rule of law on the other. This is a false dichotomy. As the Home Secretary noted in the introduction to his discussion paper, security is itself a fundamental right, and the State is under a positive obligation under human rights law to protect it.

8. The starting point in any debate about counter-terrorism powers is therefore the State's positive obligation to take the measures necessary to protect everyone within its jurisdiction against terrorist acts. To the extent that current laws are inadequate to provide this protection against the level of threat which actually exists, the State is therefore required by human rights law to enact such additional laws as can be shown to be required to protect against the current threat.[8]

9. The same human rights framework which requires States to act to combat terrorism also imposes certain basic requirements that all counter-terrorism measures must satisfy: for example, they must not be arbitrary, they must not involve torture or using the fruits of torture, they must respect peremptory norms such as the prohibition of discrimination on racial grounds, they must respect the basic principles of a fair trial, and they must be subject to proper judicial supervision.

10. We think it is important that both public and parliamentary debate about responding to terrorism take place within the relevant human rights law framework which both requires the State to act to combat terrorism and at the same time imposes some limits on the actions which it can legitimately take. We hope that the current consultation is treated as an opportunity to move public debate beyond the assumption that there is a choice between the necessity of security on the one hand and the luxury of human rights and the rule of law on the other.

11. Some useful guidance is now available for States on how to combat terrorism with effective measures at the same time as protecting basic human rights. The Council of Europe's Guidelines on Human Rights and the Fight Against Terrorism, for example,[9] provide a useful framework within which the debate about counter-terrorism measures should be conducted. They proceed from the premise that States are under a human rights obligation to take measures to protect the fundamental rights of everyone in their jurisdiction against terrorist acts, and that this justifies States in their fight against terrorism, but they recognise that when taking such measures States remain under a legal obligation to respect basic human rights and to act consistently with their international obligations in this respect. They reiterate the need to avoid arbitrariness and the absolute prohibition of torture. They make clear that all human rights restrictions must be defined as precisely as possible and must be necessary and proportionate to the aim pursued, and they remind States of the minimum standards for measures which interfere with such fundamentals as privacy and fair trial rights.

12. The need to locate the debate about counter-terrorism measures within a human rights framework is now widely acknowledged. On 20 January 2003 the UN Security Council in Resolution 1456, stated—

States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee and humanitarian law.[10]

13. The UN Human Rights Committee, which monitors states' compliance with the ICCPR, often states in its concluding observations on states' compliance reports that "The State Party must ensure that measures taken under the international campaign against terrorism are fully in conformity with the Covenant."[11]

14. International human rights treaties allow for derogation from some of their provisions during times of war or other public emergency: see ECHR Article 15 and ICCPR Article 4. The UK has derogated from both Article 5 ECHR and Article 9 ICCPR in respect of Part 4 ATCSA 2001. This is not, however, a power to suspend the applicable human rights standards indefinitely. It permits a departure from some of the usual standards to the extent that such departure is "strictly required by the exigencies of the situation".

Evidence of the level of threat from international terrorism

15. In our various reports on the ATCSA 2001 we have consistently made clear that we have never been presented with the evidence which would enable us to be satisfied of the existence of a public emergency threatening the life of the nation, but have proceeded on the basis that there might be such evidence.[12]

16. The Government in its discussion paper correctly states that the starting point for any discussion of appropriate counter-terrorism measures must be a realistic appraisal of the threat posed by international terrorism.[13] The paper then sets out the Government's appraisal of the threat.[14] It gives examples of the terrorist attacks which have taken place since 2001 and reports the view of the Director General of the Security Service, Eliza Manningham-Buller, that "the UK and our interests overseas are under a high level of threat from international terrorism". It quotes from a taped message of Osama Bin Laden, and records Al Qaeda's methodology in previous terrorist attacks and its interest in acquiring weapons of mass destruction. It concludes that the threat is global and continuing, and that the threat is particularly high against the UK and UK interests overseas, because of the evidence and information that terrorist cells are active in the UK. The Home Secretary in his Foreword also quotes the Director General's view that there is no prospect of that threat significantly diminishing in the near future.

17. Both SIAC and the Court of Appeal[15] have accepted the Government's argument that the evidence demonstrates the existence of a "public emergency threatening the life of the nation" for the purposes of Article 15 ECHR.[16]

18. Even assuming that a public emergency exists for the purposes of Article 15 ECHR, the strength of the evidence about the nature and level of the threat from international terrorism remains important to any proper scrutiny of whether the measures adopted in response to the emergency are "strictly required by the exigencies of the situation", which is the other requirement imposed by Article 15 ECHR. The nature and degree of the threat provides the justification for the particular measures being considered. The proportionality of the powers in Part 4 ATCSA 2001, or of any alternative measures, can therefore only be properly assessed in the light of a proper appraisal of the nature and level of the threat.[17] Before we can sensibly consider proportionality, or advise Parliament about the justifiability of the measures in human rights terms, we must first be satisfied that we are in a position to make a realistic appraisal for ourselves of the degree of the threat posed by international terrorism. We have therefore asked ourselves whether we can make such an appraisal on the basis of the material presented in the discussion paper.[18] On the evidence which is publicly available, there can be no doubt about the nature of the threat: the record of Al Qaeda, in terms of methodology of attack, speaks for itself and its ambitions are also a matter of public record. The Security Service website currently states—

The threat from international terrorism remains real and serious. Usama bin Laden has in several statements publicly named Britain and British interests as a target, and encouraged attacks to be carried out against them. In March 2004, the events in Madrid demonstrated the capability of an Al Qaida affiliated terrorist group to carry out an attack without warning against a civilian target in Western Europe. Additionally, the security situation in Saudi Arabia continues to deteriorate, shown by the frequent terrorist attacks targeting Western interests. Worldwide, much has been done since 11 September 2001 to thwart attacks and to damage terrorists' capability to conduct terrorist operations, but no country is immune. Al Qaida cells and supporters of affiliated groups are known to be active in the UK. A terrorist threat to the UK may also come from overseas. It remains the Government's policy to issue warnings when the public can take action in response to a specific or credible terrorist threat. There are no such warnings currently in force. However, given the threat picture, members of the public should remain alert to the danger and report any suspicious activity to the police on the Anti-terrorist hotline: 0800 789 321. Despite the high level of threat from international terrorism, there has been no international terrorist attack on UK soil since 1994. There have, of course, been attacks on UK interests overseas, the most recent in Istanbul in November 2003.[19]

19. This kind of information gives some general indication of the changing levels of threat, but still seems to us insufficient for Parliament to make an assessment of the necessity or proportionality of specific measures designed to deal with an emergency when it is asked to renew them. If, as the Director General of the Security Service has indicated, the threat is likely to remain indefinitely,[20] then we consider that democratic legitimacy demands some independent confirmation that the emergency remains at the level which justified unusual measures.

20. We recognise that there are genuine and legitimate reasons for keeping the disclosure of intelligence material, or intelligence-based material, to the minimum necessary in a democratic society. Given the importance of being able to appraise the level of the threat from international terrorism in order properly to assess the proportionality of the Part 4 measures and the possible alternatives to them, we think it is necessary to explore ways in which the Government could present for public[21] and/or parliamentary scrutiny more of the material on which its assessment of the threat from international terrorism is based, without prejudicing legitimate concerns about revealing intelligence sources. We also consider this to be an issue of the democratic legitimacy of counter-terrorism laws, given the existence of public concerns about both the reliability of intelligence reports and the use to which they are put.

21. We therefore invite the Government to give careful consideration to ways in which it could increase the independent democratic scrutiny of its claims about the level of the threat from international terrorism. We raise two questions for the Government to consider.

22. First, we ask whether more could not be done to provide both Parliament and the public with more of the gist of the intelligence on which the Government's assessment of the threat is based, without prejudicing legitimate security interests. We suspect that what has been described in another context as "protective anxiety"[22] pervades the culture of the intelligence services and prevents the disclosure of information which does not in reality pose any threat of harm to intelligence sources or working methods.

23. Second, we encourage the Government to give careful consideration to whether there is a role for the Intelligence and Security Committee to scrutinise the material on which the Government's assertions about the level of the threat are based. That Committee has a statutorily recognised role in relation to sensitive intelligence material and well-developed procedures for dealing with the protection of such information where the need to do so is made out.[23] In its annual reports, the ISC does include a section on "The Threat". This does not, however, specifically address the question of whether specific intelligence continues to identify an emergency threatening the life of the nation, or whether the intelligence supports the case for a continuation of measures addressed to the exigencies of a specific situation. Both Lord Newton and Baroness Hayman thought that it would be helpful for Parliament to have the benefit of the view of that Committee when deciding on whether particular measures are a proportionate response to the emergency in question.[24] This would introduce, for the first time, an important element of independent democratic scrutiny by enabling that Committee to reach its own judgment as to whether the intelligence material which underlies the Government's threat assessment is sufficient to support a request to Parliament to renew emergency provisions, and to report to Parliament thereon to inform Parliament's own debate about the proportionality and necessity of the measures adopted to respond to the threat.

The working of Part 4 ATCSA 2001 in practice

24. The discussion paper gives an account of the working of Part 4 ATCSA 2001 in practice.[25] Lord Carlile, working within his remit of reviewing the operation of the provisions in Part 4 on the premise that they are necessary, concluded that the present system under Part 4 ATCSA 2001 is both "workable and working reasonably well".[26]

25. We have expressed concerns about the way in which Part 4 operates in practice in previous reports.[27] We remain concerned about a number of aspects of the operation of Part 4.

Admissibility of torture evidence

26. In its generic determination, SIAC indicated that evidence obtained as a result of torture is admissible in SIAC proceedings, because they are not criminal proceedings: the fact that it has been obtained by that means goes to its weight not its admissibility.[28]

27. In a reply to a question from Lord Judd, Baroness Scotland confirmed that the Government's policy was that where national security is at stake it is the Government's duty to take all information available to it into account.[29] The Carlile Report notes that the authorities are working closely with foreign intelligence and police agencies, including the US.[30]

28. Article 15 of the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, which came into force in 1987 and which the UK ratified, without any reservations, on 8 December 1988, provides—

15. Each State party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

The Council of Europe's Guidelines on human rights and the fight against terrorism contain an important reminder of the absolute prohibition of torture—

The use of torture or inhuman or degrading treatment or punishment is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted.[31]

In his oral evidence to us, Lord Carlile sought to draw a distinction between "evidence" and "information" in this context. He gave an example—

Let us suppose that an interrogation takes place in some unpleasant place in which a person is tortured and, as a result of that, provides information that in Birmingham there is an al-Qaeda cell which is preparing a bomb which will go off at Villa Park on a Saturday afternoon, killing thousands of people. Acting on that information which is passed to British intelligence, the police go to a house in Birmingham and they find a bomb or bomb-making equipment which could be used to carry out that shocking plot and, acting on that information, they arrest a large number of people and bring a case to the court. Now, one is left with obvious questions arising from that set of circumstances.

He went on to say—

… we should adhere to our treaty obligations and I would be the first to say that I feel very uncomfortable about evidence being used if it has been obtained by torture, but is it reasonable to say that information which has been obtained which leads to evidence should never be used? … The general principle must be that you never act on evidence obtained from torture, the general principle, but there may be circumstances in which one would say, 'Well, just a moment'.[32]

Lord Carlile said that his understanding was that nothing obtained by torture had been used as evidence against any of the detainees, but he "could not say for certain that no evidence obtained as a result of torture has been used."[33]

29. However, the absolute nature of the prohibition of torture is a well established part of customary international law. The UK's obligation under the Convention Against Torture, to ensure that evidence obtained as a result of torture is not admissible in any legal proceedings is unequivocal. This is not a question of a general principle subject to justifiable exceptions. There is a significant risk of the UK being in breach of its international human rights obligations if SIAC or any other court were to admit evidence which has been obtained by torture.

The adequacy of the safeguards against injustice

30. Lord Carlile was given access to the intelligence material available to the Home Secretary and assessed for himself on the basis of that material whether the statutory criteria for certification were satisfied.[34] He concluded that the Secretary of State has certified persons as international terrorists only in appropriate cases. In oral evidence to us, Lord Carlile confirmed that he was confident that each of the individuals detained poses a real threat to the safety of the public and therefore should not be at liberty.[35]

31. In one case, however, SIAC has quashed the certificate of one of the detainees, on the basis that "the assessments placed before us and the respondent are not reliable and that reasonable suspicion is not established".[36] In his oral evidence, Lord Carlile said that this did not cause him to reassess the reliability of the intelligence material on which he made his earlier assessment of the quality of the certifications.[37] Both Lord Carlile and the Court of Appeal, which upheld SIAC's quashing of the certificate, say that the quashing of the certificate in M's case shows that the system of independent safeguards is working well.

32. We are concerned by the fact that an individual can be wrongly detained without charge for some fifteen months before the error in authorising such detention is established. We agree with the Newton Report that the provisions of Part 4 ATCSA 2001 should be replaced as a matter of urgency by measures which do not include indefinite administrative detention.

Indefinite detention and mental health

33. We have received a number of representations raising concerns about the impact of indefinite detention on the mental health of detainees, and the adequacy of review mechanisms where a person detained under Part 4 ATCSA 2001 is transferred to hospital under the Mental Health Act 1983.

34. The British Psychological Society[38] has expressed its concern that serious harm is being done to the mental well-being of ATCSA detainees, mainly because of the psychological impact of indefinite detention without charge or trial and without being informed of the evidence against them, or even being subjected to interrogation or questioning.[39] It is particularly concerned about the impact on vulnerable groups such as the young, those who have previously experienced torture and detention in their country of origins, and those with existing mental health problems or physical or learning disabilities.[40]

35. The Mental Health Act Commission[41] has also raised its concern that, where an ATCSA detainee is transferred to hospital under the Mental Health Act 1983, the review mechanisms of the Mental Health Review Tribunal and SIAC are inadequate because they do not provide an opportunity to make a fair challenge to decisions over the appropriate level of security provision.

36. We note that there has been cause for serious concern over the mental health of two of the detainees. One has been transferred to Broadmoor and one has been released on bail, under conditions amounting to house arrest, because of concerns about his mental health. We also note that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment, in its report on its visit to the ATCSA detainees in February 2002, found that the indefinite nature of their detention, and the belief that they had no means to contest the broad accusations made against them, were a source of considerable distress to the detainees.[42]

37. We are concerned about the psychological impact of indefinite detention without charge or trial, and about the adequacy of the mechanisms for reviewing the Secretary of State's decision that a detainee transferred to hospital should be detained in a high security hospital such as Broadmoor. Both of these considerations in our view increase the urgency of replacing Part 4 with a more acceptable alternative.

The special advocate system

38. Lord Carlile concluded that the effectiveness of the special advocates in the SIAC process had been "significant",[43] and that "the special advocate system works reasonably well to achieve its purpose of assisting SIAC to reach decisions correct in fact and law."[44]

39. There are concerns about the fairness of the special advocate system, however. The fact that the detainees' special advocates are appointed by the Attorney General, who himself has personally represented the Secretary of State before SIAC, in our view, gives rise to legitimate concerns about the appearance of fairness of the process by which the detainee's interests are represented in closed hearings. [45]

40. The rule that there can be no contact whatsoever between the detainee and the special advocate as soon as the advocate sees the closed material also means that there is little meaningful contact between the detainee and the representative of their interests in the closed proceedings.[46]

41. We consider it a significant problem that the special advocate for the detainee is appointed by the Attorney General, who not only represents a party to the proceedings before SIAC, but is the only other legal representative present during the closed hearings, in the absence of the detainee or their legal representative. We also consider that there is a strong case for considering the scope for relaxing the rigid rule that prohibits any contact between the detainee and their special advocate once the advocate has seen the closed material.

Discrimination

42. The discussion paper rejects the Newton Report's recommendation that new legislation replacing Part 4 ATCSA 2001 should apply equally to all nationalities including British citizens. It states the Government's belief that it is defensible to distinguish between foreign nationals and UK nationals because of their different rights and responsibilities.[47]

43. We have consistently expressed our concern that the provisions of Part 4 ATCSA unjustifiably discriminate on grounds of nationality and are therefore in breach of Article 14 ECHR. Along with Lord Newton,[48] we find it extraordinary that the discussion paper asserts that seeking the same power to detain British citizens would be "a very grave step" and that "such draconian powers would be difficult to justify."

44. The interests at stake for a foreign national and a UK national are the same: their fundamental right to liberty under Article 5 ECHR and related procedural rights. Article 1 of the ECHR requires States to secure the Convention rights to everyone within their jurisdiction. Article 14 requires the enjoyment of Convention rights to be secured without discrimination on the ground of nationality. The Government's explanation in its discussion paper of its reluctance to seek the same powers in relation to UK nationals appears to suggest that it regards the liberty interests of foreign nationals as less worthy of protection than exactly the same interests of UK nationals, which is impermissible under the Convention.

45. We note the Report of the Committee on the Elimination of Racial Discrimination, in its Concluding Observations on the UK, which states—

17. The Committee is deeply concerned about provisions of the Anti-Terrorism Crime and Security Act which provide for the indefinite detention without charge or trial, pending deportation, of non-UK nationals who are suspected of terrorism-related activities.

While acknowledging the State Party's national security concerns, the Committee recommends that the State Party seek to balance those concerns with the protection of human rights and its international legal obligations. In this regard, it draws the State Party's attention to the Committee's Statement of 8 March 2002 in which it underlines the obligation of States to 'ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent, or national or ethnic origin'.[49]

46. We also note that there is mounting evidence that the powers under the Terrorism Act are being used disproportionately against members of the Muslim community in the UK. According to the Metropolitan Police Service data, the stop and search rates for Asian people in London increased by 41% between 2001 and 2002, while for white people it increased by only 8% over the same period.[50] We are concerned that the strikingly disproportionate impact of the Terrorism Act powers on the Muslim community indicates unlawful use of racial profiling in the exercise of these powers, contrary to basic norms prohibiting discrimination on grounds of race or religion.[51]

47. In light of the concerns expressed by the Committee on the Elimination of Racial Discrimination, and the concerns about racial profiling in the exercise of stop and search powers, we remain concerned about the discriminatory impact of the measures which have been taken to combat terrorism. We agree with one of the central criticisms made by the Newton Report, that the UK's response to the threat from international terrorism should not be confined to measures which target foreign nationals, but should consist of measures which apply equally to nationals and non-nationals.

Alternatives to Part 4 ATCSA 2001

48. The discussion paper calls for a debate about whether there are any alternative measures to Part 4 ATCSA 2001 which would be sufficient to meet the threat from international terrorism, and states the Government's willingness to consider such alternatives.[52]

49. The Newton Report strongly recommended the replacement of Part 4 powers with new legislation which would deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators, and which would not require derogation from the ECHR.[53] It also set out a number of alternative approaches which, it suggested, might provide a more acceptable and sustainable approach to meeting the threat without having to derogate from the ECHR or having to discriminate on grounds of nationality.[54]

50. In its discussion paper the Government dismisses the alternatives suggested by the Newton Report with very little, if any, explanation as to why they do not provide a workable solution. Nevertheless, it indicates that certain ideas about criminal offences and the criminal process merit further discussion.[55]

51. The proper exploration of possible alternatives is extremely important in any proper assessment of the proportionality of the Part 4 measures. We have considered carefully whether any of the possible alternatives raised by the Newton Report, or any combination of them, might be viable alternatives which would enable the Government to achieve its objective of protecting the population against terrorist acts without derogating from its obligations under the ECHR. It is important, however, to be clear that these possible other measures should be considered as alternatives to the Part 4 powers, not as supplementary to them.

Prosecution for Existing Criminal Offences

52. The Newton Report recommends greater use of conventional criminal prosecution under the existing range of terrorism-related offences, including those under the Terrorism Act 2000. The Government accepts in its discussion paper that there is already a wide range of criminal and terrorist-related offences that can be used to bring prosecutions.[56] But, as the Newton Committee Report observes, the obstacle to bringing such prosecutions is that the evidence on which suspicion of involvement in international terrorism is based is usually intelligence material which would either be inadmissible as evidence in court or is the sort of material that the authorities do not wish to make available in open court because of the possible prejudice to their sources or methods.[57]

53. We took evidence from the Director of Public Prosecutions as to whether there is greater scope for using the normal criminal justice system by bringing prosecutions for existing criminal offences, including those under existing anti-terrorism legislation.

Relaxation of ban on use of intercept material

54. The Newton Committee Report recommended a relaxation of the statutory ban on the use of intercepted communications in court[58] in order to make it possible to prosecute in more cases.[59]

55. We have found there to be overwhelming support for this proposal. The recommendation was made as long ago as 1996 by Lord Lloyd in his review of terrorism legislation,[60] and again during the debates on the Regulation of Investigatory Powers Act 2000. Lord Carlile unequivocally supports the proposal.[61] In his oral evidence to us he described the absolute ban as "a nonsense",[62] and he indicated that both the police and MI5 are in favour of relaxing the ban. The UK is the only country in the world, apart from Ireland, to have an absolute ban on the use of such material. Lord Newton told us in evidence that there was not a single member of his Committee who was not of the view that it was sensible to relax this ban.[63] As he pointed out, it does not follow from relaxing the ban that the prosecution will be forced to disclose material which might have damaging effects for intelligence sources or methods. The use of such evidence would also be subject to the usual safeguard of the judicial discretion to exclude under s. 78 of the Police and Criminal Evidence Act 1984.

56. We conclude that the case for relaxing the absolute ban on the use of intercept evidence is overwhelming. It is in our view a disproportionate and unsophisticated response to the legitimate aim of protecting intelligence sources and methods. We also suspect it to be symptomatic of an over-protective approach to information which originates from intelligence material. More tailored and precise ways of protecting sources and methods should be developed which do not depend on blanket prohibitions. This over-protective attitude appears to be one of the most significant obstacles to using the criminal law against suspected terrorists.

Use of a more inquisitorial approach

57. The Newton Committee Report suggested that a more inquisitorial approach could be well suited for use in this limited context.[64] This would involve, for example, a security cleared judge being responsible for investigating the case, based on all the material available including the intelligence material. The case which the investigating judge assembles would then be presented for trial before an ordinary court in the usual way. Alternatively, the prosecution could be given a more pro-active, investigation-led role in preparing a case for prosecution. Despite its implicit rejection in the Discussion Paper, in parliamentary debates the Government has not expressly ruled this out as an option worth exploring.

58. We have been greatly assisted in exploring this possibility by Professor Roger Errera, Conseiller d'Etat, with whom we held an informal discussion to enable us to understand how the French system of juges d'instructions, or examining magistrates, works in practice. As a result of this very helpful discussion, we came to the conclusion that the French examining magistrate system does not mitigate the risk of disclosure of sensitive intelligence material in the way that the Newton Report appears to have assumed. The defence is given an opportunity to see and contest all the evidence which the examining magistrate collates and places on the file, including any sensitive intelligence material. The case which the examining magistrate presents to a court cannot be based even in part on sensitive intelligence material which the defence has not had an opportunity to contest.

59. It therefore seems to us that the DPP was correct in his oral evidence to us when he said that he did not understand how the examining magistrate model solves the problem of protecting sensitive material from disclosure.[65] We conclude that the examining magistrate model does not help with the central problem identified by the Newton Report, which is how to deal with sensitive intelligence material within the criminal process.

60. Our consideration of the examining magistrate model did, however, raise for us a further possibility that we consider to be worth exploring. It seemed to us from our discussion with Professor Errera that in the French system there is a less absolute approach to the non-disclosure of information originating from intelligence sources. For example, we were told that the identity of sources of intelligence material might be protected by including such information in witness statements from their superiors within the intelligence agencies. Professor Errera persuasively explained how this would still give the defence an opportunity to challenge that information, even without the opportunity to cross-examine the source of the information. He also explained that other safeguards exist, for example a conviction cannot be based on such evidence alone.

61. We have not yet had an opportunity to consider this in greater detail, but we recommend that consideration be given to whether there is scope for a greater role for a security-cleared prosecutor to have access to the sensitive intelligence information available in respect of an individual who is suspected of involvement in international terrorism, and to have a role in translating this into evidence in a form which is sensitive to the need to protect intelligence sources and working methods, without proceeding on the assumption that evidence derived from such information must always be protected from disclosure.

Other process changes to facilitate prosecution

62. In his oral evidence, the DPP identified a number of possible process changes which in his view would reduce the current obstacles to prosecuting for terrorism offences.[66] These included:

Extending custody time limits
Use of video evidence from abroad
Powers to interview under compulsion
Plea bargaining
Immunising accomplices

63. Many of these are based on the sort of new powers which are proposed in organised crime cases in the White Paper, One Step Ahead: 21^st Strategies to Defeat Organised Crime. In an interview with The Times on 12 July 2004, the DPP is reported as having said:

It seems a pretty strong case, if you're granting these powers for organised crime, to do so for terrorism.

64. JUSTICE has expressed the concern that fundamental principles and safeguards of existing criminal law should not be watered down in order to make it easier to prosecute terrorism offences under the ordinary criminal law.[67] We share this concern but we also share the concern of the Newton Report that indefinite administrative detention of foreign nationals is not a sustainable or defensible response to the current threat from international terrorism. We believe the approach of the Newton Report, to bring terrorism back within the scope of the criminal law, is preferable in principle in human rights terms even if this requires some modification of the ordinary criminal process in order to deal with the unique problem of sensitive intelligence material.[68] We welcome the DPP's broad indication of the sorts of process changes which are being contemplated and we look forward to examining their compatibility with the UK's human rights obligations when more detailed proposals are available.

Creation of new criminal offences

65. The discussion paper raises the possibility of the creation of new criminal offences, such as a more broadly drawn offence of acts preparatory to terrorism (proposed by Lord Carlile),[69] amendments to the existing law of conspiracy,[70] and an offence modelled on the French crime of "association with a wrongdoer".[71] Lord Carlile has expressed the view that "if the criminal law was amended to include a broadly drawn offence of acts preparatory to terrorism, all could be prosecuted for criminal offences and none would suffer executive detention".[72] In his oral evidence to us he said that it would totally remove the need for administrative detention and it would totally remove the need for the derogation.[73]

66. The Newton Committee Report, however, observed that in the course of its inquiry nobody had suggested that it has been impossible to prosecute a terrorist suspect because of a lack of available offences.[74] It did not recommend the creation of any new criminal offences. The DPP in his evidence to the JCHR appeared to agree with this view, saying that there is an enormous amount of legislation that can be used in the fight against terrorism and that the criminal law (common law as well as statute) already covers a huge swathe of activity that could be described as terrorist.[75]

67. We have considered carefully whether there appears to be a need for new criminal offences in relation to terrorism. We are not yet persuaded that a new criminal offence of acts preparatory to terrorism would be a valuable addition to the existing range of offences or a means of ensuring that the current detainees could be dealt with through the criminal process. We find it difficult to see how the existence of such an offence would overcome the obstacles to prosecution identified by the Newton Report, in particular the problem that the evidence relied on in relation to a suspected international terrorist is usually intelligence material which is either inadmissible as evidence in a criminal court, or material which the authorities do not wish to disclose for fear of compromising sources or methods. In our view, that is an obstacle which needs addressing directly, and is unlikely to be helped by the creation of still more criminal offences.

Terrorism as an aggravating factor in sentencing

68. The Newton Report recommended that consideration be given to treating terrorism as an aggravating factor when sentencing for non-terrorist offences, so that longer sentences can be given where it is established that there are links with terrorism.[76] This is also a measure which has been introduced in a number of other countries, such as France.[77]

69. Lord Carlile has expressed his scepticism for this idea. In his review of Part 4 ATCSA 2001 he thought that the same evidential difficulties would arise in prosecuting other offences aggravated by terrorism as in prosecuting terrorist offences, because the terrorist element would have to be the major element of the crime as a whole. He also doubted whether such a proposal would be capable of commanding the support of Parliament.[78] In his oral evidence to us he said that it was a difficult idea to translate into substantive law, and that it placed too much power in the hands of the judge and not enough power in the legislation.[79] Lord Newton and Baroness Hayman, on the other hand, did not want to rule out the possibility of higher sentences being imposed where terrorism could be proved on the balance of probabilities to be an aggravating factor.[80]

70. We agree with the Newton Report's conclusion that this may be an appropriate measure, depending on the safeguards which accompany it. In our view one of the necessary safeguards would be retention of 'beyond reasonable doubt' as the appropriate standard of proof for establishing a link to terrorism in order to justify a longer sentence.[81]

Surveillance

71. One of the alternatives to detention canvassed by the Newton Committee Report is the use of more intensive surveillance. The Newton Committee reported that it had discussed this point with the appropriate authorities and was "not convinced that enough use is made of the surveillance of suspected terrorists".[82] The Report does not go into detail about the reasons why at present surveillance is not sufficiently intensive. It hints that it may be due in part to lack of resources, and in part due to room for improvement in training, the use of technology and better liaison between different agencies at ports of entry.[83] The Report also implies that what is envisaged is not merely more extensive use of existing surveillance techniques (for which safeguards already exist), but the use of more intrusive techniques now available through new technology.[84]

72. We explored this in more detail with Lord Newton and Baroness Hayman in oral evidence.[85] Lord Newton acknowledged that use of more intensive surveillance raised concerns about privacy,[86] but he pointed out that the context in which its use was being considered was as a less restrictive alternative to indefinite detention without trial.[87] Provided there are proper safeguards against the abuse of surveillance powers, he thought that this could be a useful ingredient of the overall menu of possibilities, including possibly as part of a civil restriction order (discussed further below). Baroness Hayman similarly thought that, although intense surveillance was clearly an intrusion into civil liberties, in some cases it would be a more proportionate response. Intense surveillance is clearly expensive and Lord Newton indicated that a number of members of his Committee felt that insufficient resources were being devoted to surveillance.[88]

73. JUSTICE points out that the recent release of one of the detainees on bail[89] suggests that indefinite detention in a high security prison is not "strictly required", and that it may be sufficient to address the threat by way of a series of stringent bail conditions including electronic tagging and house arrest without outside communication.[90]

74. We conclude that the use of more intense overt surveillance of individuals suspected of involvement in international terrorism would be preferable to detention under Part 4, because it is less restrictive of the fundamentally important right to liberty. We emphasise, however, that intense surveillance is also a grave interference with the right to respect for private life, and should therefore only be used in cases where the only alternative would be detention. Such surveillance might include electronic monitoring, but this would of course also have to be subject to proper procedural safeguards. For example, the consent of the person being monitored would have to be obtained before they are fitted with any monitoring device.

Civil restriction orders

75. The Newton Committee Report considered that in some cases, rather than detain indefinitely without charge, it would be a more proportionate measure to impose restrictions on the liberty of the individuals concerned, for example on their freedom of movement by curfews, tagging, or daily reporting requirements, on their freedom of association, or on their ability to use financial services or to communicate freely.[91]

76. To some extent, a version of this is already available under Part 4 ATCSA 2001, because SIAC accepted, in its first generic judgment, that there is room for debate about the proportionality of detention even where certification as a suspected international terrorist was justified. The release of "G" on bail, under strict conditions amounting to house arrest, demonstrates this.

77. There is already a number of examples of such restriction orders in different contexts, involving a civil procedure for establishing whether certain restrictions on liberty should be imposed, followed by a criminal procedure for determining whether there has been a breach of the order, for which criminal consequences, including detention, follow: e.g. civil confiscation orders, anti-social behaviour orders,[92] football banning orders, and registration conditions on sex offenders.

78. In their oral evidence to us, Lord Newton and Baroness Hayman were clearly strongly in favour of civil restriction orders as a less restrictive alternative to Part 4 ATCSA 2001. Although they recognized that such orders would involve serious interferences with liberty and other fundamental rights, they considered this to be preferable to indefinite detention without charge. As Lord Newton put it—

I continue to think that for somebody to be at liberty (to whatever extent we mean in this context) but in a restricted way is probably better than being locked up in a high security prison with no knowledge as to when you are going to get out, or indeed if you are going to get out.[93]

He also pointed out that civil restriction orders would also have the advantage that "they would be capable of being applied to potential terrorists who are British citizens and not only to potential terrorists who are foreign citizens".[94] It might also be possible for civil restriction orders to be used to deal with those who are more at the periphery of involvement with international terrorism, for example those associating with international terrorists.[95]

79. JUSTICE has pointed out that such measures might still require derogation from the ECHR, because there is no scope under the Convention to impose sweeping restrictions on the liberty of a person who is suspected but neither charged nor convicted of any criminal offence.[96] However, whether such a derogation would be required would depend on the kinds of restrictions on liberty which it is proposed to impose. On the premise that the current threat from terrorism is sufficiently serious to justify exceptional measures being taken, JUSTICE supports further consideration being given to the possibility of civil restriction orders, but emphasizes that adoption of any such scheme would have to be considered as wholly exceptional.[97] Such orders would have to be attended by the most stringent procedural safeguards, including a requirement that the order be made by a court after a fully adversarial procedure. We find this approach to the possible use of civil restriction orders persuasive.

80. We conclude that the use of civil restriction orders in this context is worthy of further exploration. We recognize that the use of such orders is controversial and that there are a number of continuing concerns about what sorts of risks to the public interest (for example assistance, support, incitement, association) should justify the availability of civil restriction orders and what sort of restrictions on liberty it should be possible to impose by way of a civil restriction order. However, we note that the use of such civil restriction orders is not per se incompatible with the ECHR.[98] We consider that such orders would have to be accompanied by sufficient procedural safeguards, such as access to an independent judicial determination of whether the underlying allegation was well-founded, and the type of restrictions imposed would have to satisfy a test of strict necessity in order to be proportionate.[99]

Comparison with other countries

81. The discussion paper states that the Government is willing to learn from the experience of other countries, and that it is important that the debate on alternatives to Part 4 ATCSA 2001 is informed by an analysis of the different ways in which other mature liberal democracies have addressed this issue. We asked the House of Commons Scrutiny Unit to conduct a comparative study of the ways in which other states have responded to the threat from international terrorism. The product of that research is set out at Annex A.[100]

82. The UK is the only country out of 45 countries in the Council of Europe to have considered it necessary to derogate from Article 5 of the Convention. It is also the only country in the world to have derogated from Article 9 ICCPR. Apart from the United States, none of the other countries surveyed has resorted to the indefinite administrative detention of foreign nationals who are suspected terrorists.

83. The comparative research found that most jurisdictions have sought to deal with those suspected of involvement in international terrorism by means of criminal prosecution. It found that in most states various special measures have been taken in order to facilitate prosecution in such cases. Such measures include the creation of new terrorism or terrorism-related offences, the adoption of new investigative techniques, new protections for sensitive information, changes to criminal procedure including longer pre-charge detention, and the imposition of higher sentences for terrorism-related offences.

84. We commend this comparative research to the Government. We conclude from it that the central insight of the Newton Report is correct: that it must be possible to deal adequately with the threat from international terrorism by measures which enable the use of the criminal law against those suspected of international terrorism, of whatever nationality, and without the necessity of derogating from international human rights obligations.

Conclusion

85. We look forward now to the publication of the outcome of the Government's consultation on its review of counter-terrorism powers. We hope that it will provide evidence of a real commitment to reconcile security and liberty. We anticipate engaging further with the Home Secretary on these questions when the consultation is concluded.

1 Cm 6147, hereafter referred to as "the Discussion Paper". Back

2 Part One. Back

3 Part Two. Back

4 Privy Counsellor Review Committee, Anti-terrorism, Crime and Security Act 2001 Review: Report, HC 100, 2003-04, published on 18 December 2003. Back

5 Letter from Rt Hon David Blunkett MP, Secretary of State for Home Affairs, to the Chair, 6 February 2004 (Sixth Report, Session 2003-04, Anti-terrorism, Crime and Security Act 2001: Statutory Review and Continuance of Part 4, HL Paper 38, HC 381, Appendix 2). Back

6 The Newton Report, para 203. Back

7 Cited by the Home Secretary in his Foreword to the Discussion Paper. Back

8 For example, the first sentence of Article 2(1) ECHR states that "Everyone's right to life shall be protected by law." This has been interpreted by the European Court of Human Rights as imposing a positive obligation on States to take appropriate steps to safeguard the lives of those within its jurisdiction, including by the adoption of laws protecting life against the acts of third parties. Back

9 Adopted by the Committee of Ministers on 11 July 2002 at the 804^th meeting of the Ministers' Deputies. Further useful guidance on the relevant international human rights standards is contained in the Report by the International Bar Association's Task Force on International Terrorism, International Terrorism: Legal Challenges and Responses (2003), esp. chapter 4, "Upholding Human Rights and Civil Liberties in the Fight against Terrorism." Back

10 Resolution 1456 (2003), para. 6. Back