Joint Committee On Human Rights

Joint Committee On Human Rights Sixth Report

4 Recommendations of the Newton Committee relating to the human rights implications of other Parts of the Act

41. We did not raise any issue relating to freezing orders when we first examined the Bill in 2001. However, it has subsequently become clear that freezing orders may have human rights implications. They would be made by the Treasury, rather than by a judge, and would freeze the assets of named people. They would engage the right to peaceful enjoyment of property under Article 1 of Protocol No. 1 to the ECHR, and the Human Rights Act 1998. They would also engage the right to honour and reputation of the people named, which arises under ECHR Article 8[54] (which is part of UK law) as well as under Article 17 of the International Covenant on Civil and Political Rights (which does not form part of municipal law in the United Kingdom but which binds the United Kingdom in international law).

42. At present, the power under the 2001 Act is not being used, because freezing orders are made under the Terrorism (United Nations Measures) Order 2001, which itself was made under powers conferred by the United Nations Act 1946, section 1. The operation of the freezing orders made under that Order and Act are questionable in human rights terms, because there is no right to appeal against the orders and (despite the Government's contrary view) we consider that judicial review provides only a very limited protection against legislative orders of this kind, except where they contravene European Community law.

43. We therefore endorse the recommendation in the Newton Committee that "freezing orders for specific use against terrorism should be addressed again in primary legislation" and that "freezing orders for other emergency situations, and the safeguards which should accompany them, should be reconsidered on their own merits in the context of more appropriate legislation for emergencies" (paragraphs 149 to 150 of the Newton Committee report).

PART 3 OF THE ACT: DISCLOSURE OF INFORMATION

44. We have, on a number of occasions, drawn attention to the shortage of safeguards for the right to respect for private life (ECHR Article 8) in the provisions of Part 2, which permit a wide range of public authorities to disclose information to investigators in the UK or abroad in respect of any crime, and to the Security and Intelligence Services in the UK. We drew attention to the threat to Article 8 rights when the precursors of the present provisions were contained in the Criminal Justice and Police Bill in the 2000-01 session.[55]

45. The provisions were dropped before the Bill became and Act, but were reintroduced in the Anti-terrorism, Crime and Security Bill in November 2001. Again, we drew attention to the significant risk of a violation of Article 8 rights because of the range of offences covered, the lack of any statutory criteria to govern the disclosure of information, and the lack of procedural safeguards.[56] Nevertheless, the provisions were passed without amendment, and became Part 3 of the Act.

46. The Newton Committee endorsed the Joint Committee's concern (at paragraph 165), and recommended independent external oversight of the whole disclosure regime (at paragraph 166) and prior authorisation by a senior person in terrorism cases and by a judge in other cases (at paragraphs 170 to 171).

47. We welcome the analysis by the Newton Committee, and endorse its recommendations.

PART 8 OF THE ACT: SECURITY OF NUCLEAR INDUSTRY

48. When reporting on the Bill in December 2001, we drew attention to the new criminal offences, in what are now sections 79 and 80 of the 2001 Act, committed by someone who makes an unauthorized disclosure of sensitive information about the security of nuclear sites, nuclear material or uranium enrichment nuclear technology. We pointed out that this might prevent people from making important disclosures about threats to health from the escape or negligent handling of nuclear material, particularly as the provisions contain no exception for disclosures in the public interest. We drew attention to the risk that this might lead to a violation of:

a) the right of people whose health is threatened to have information about the risk, as an aspect of the right to respect for private life under ECHR Article 8; and

b) the right of people with disclosures to make to freedom of expression under ECHR Article 10.[57]

49. The Newton Committee noted these concerns, but drew attention to certain assurances which the Government had given about the way the provisions would operate, and in the light of them concluded that there was no reason to object to the sections.[58] We accept this conclusion, and may seek information in the future about the way in which the assurances are being put into practice.

PART 10 OF THE ACT: POLICE POWERS

50. The Newton Committee drew attention to measures in Part 10 of the 2001 Act (sections 89 to 93) to make it easier to identify people in custody. These apply generally, not only in terrorism investigations. The provisions allow the police in non-terrorism cases to search and examine a person for any identifying mark which might identify him or her as an individual involved in the commission of any offence, or facilitate the ascertainment of his or her identity; to take fingerprints using reasonable force if necessary where they will facilitate ascertainment of the person's identity; and to take photographs, removing face coverings (including face paint) in order to make the photographs useful. In addition, the provisions allow the police to take fingerprints from those detained under the Terrorism Act 2000 to ascertain their identities. Once fingerprints and photographs have been taken, they can be retained indefinitely for the general purpose of preventing and detecting crime.

51. The Newton Committee noted that the use of these powers is not being systematically recorded. Their usefulness in relation to non-terrorism crimes is difficult to assess, and none of the cases which the committee discovered had resulted in the identification as a terrorist of someone arrested for another reason.[59] The Committee observed that each extension of the powers had been controversial, and opined that the provisions ought not to have been included in emergency legislation. It recommended limiting the powers to cases where a person has been charged with an offence, or where he or she is authoritatively certified as being of ongoing importance in a terrorist investigation.[60]

52. These concerns echo those which we had expressed about the extensions to the powers when they were contained in the Anti-terrorism, Crime and Security Bill in November 2001.[61] At that time we drew attention to the need for additional safeguards to protect the rights of detainees under ECHR Articles 3 and 8. We remain of that view, and endorse the views of the Newton Committee.

53. The Newton Committee suggested that limits should be placed on the power under sections 94 and 95 of the 2001 Act to remove and confiscate disguises. It noted that the powers have been used against hunt saboteurs rather than suspected terrorists, and that there is no evidence that it has been useful in counter-terrorism operations. The Committee considered that the use of the power should be limited to situations where a senior police officer believes that the measure is necessary in response to a specific terrorist threat.[62]

54. This is in line with the concerns which we expressed about these provisions in 2001, arguing that they gave rise to a potential threat to the right to respect for private life under ECHR Article 8, and, if used particularly against Muslims (a danger which, the Newton Committee found, there is no evidence of having materialized), the right to freedom to manifest one's religion under ECHR Article 9.

55. We therefore endorse the views of the Newton committee on this matter.

PART 11 OF THE ACT: RETENTION OF COMMUNICATIONS DATA

56. Part 11 of the Act contains provisions allowing the Secretary of State to require communications system providers to retain certain information about the use which customers make of their services, and to make that information available to investigators on request. The powers were to be regulated in accordance with a code of practice. The provisions were immediately highly controversial. Many people, including the Information Commissioner, drew attention to the lack of safeguards for the right to respect for private life and correspondence under ECHR Article 8.[63] When a draft code of practice was eventually promulgated in 2003, we drew attention to a number of threats to human rights. In particular:

a) we considered it unlikely that the service providers, when retaining and disclosing the data, would be public authorities, so it was unlikely that they would be subject to the duty to act in a manner compatible with Convention rights under section 6 of the Human Rights Act 1998;[64] and

b) we were not satisfied that the arrangements in the draft code would ensure that the interference with rights under ECHR Article 8.1 would be proportionate to legitimate objectives so as to be justifiable under ECHR Article 8.2.[65]

57. Despite this, we were prepared to accept that, as a matter of policy, it should be possible to access communications data which are available, if they are relevant to a particular case and the access is necessary for and proportionate to a legitimate aim under ECHR Article 8.2.[66]

58. The Newton Committee, after a full review, stressed its belief that "it would be beneficial for both users and subjects of the data if retention and access were based on a coherent statutory framework".[67] This should be part of mainstream legislation, not special terrorism legislation.[68] The maximum period of retention should be one year, to strike a balance between the justifiable need for access to the data when combating terrorism and other serious crimes and the protection of the right to privacy.[69] The Newton Committee also recommended that the whole retention and access regime should be subject to unified oversight by the Information Commissioner, and that a coherent legislative framework, going beyond that currently available in the Regulation of Investigatory Powers Act 2000, should be put in place to govern both retention of and access to communications data.[70]

59. We endorse these conclusions of the Newton Committee, as being likely to allow, for the first time, some confidence that rights under ECHR Article 8 would be properly safeguarded in this field.

54 See Fayed v. United Kingdom (1994) 18 EHRR 393, Eur. Ct. HR. Back

55 Joint Committee on Human Rights, First Report of Session 2000-01, Criminal Justice and Police Bill, HL Paper 69, HC 427, paras. 58-66. Back

56 Joint Committee on Human Rights, Second Report of Session 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37, HC 372, para. 24. Back

57 Joint Committee on Human Rights, Fifth Report of Session 2001-02, Anti-terrorism, Crime and Security Bill: Further Report, HL Paper 51, HC 420, paras. 25-26. Back

58 Newton Committee Report, paras. 302-306. Back

59 ibid., paras. 340-343. Back

60 ibid., paras. 344-345. Back

61 Joint Committee on Human Rights, Second Report of Session 2001-02, op cit., paras. 62-62. Back

62 Newton Committee Report, paras. 351-354. Back

63 See the evidence of the Commissioner to the JCHR; Joint Committee on Human Rights, Fifth Report of Session 2001-02, op cit., pp. 1-3. Back

64 Joint Committee on Human Rights, Sixteenth Report of 2002-03, Draft Voluntary Code of Practice on Retention of Communications Data under Part 11 of the Anti-terrorism, Crime and Security Act 2001, HL Paper 181, HC 1272, paras. 11-12. Back

65 ibid., paras. 18-19. Back