Joint Committee On Human Rights Twenty-Fourth Report

4  Other matters

Control orders

145. We publish the Government's response to our report;[71] but without comment at this stage, in light of pending appeals against the two recent judgments concerning the compatibility of control orders with the ECHR.

Definition of terrorism

146. In our first report in this inquiry we considered the definition of terrorism in connection with a number of measures being brought forward by the Government which incorporated the definition in the Terrorism Act 2000.[72] In that context we expressed concerns about the width of the definition and expressed our view that it needed to be changed.

147. In Canada we heard that the definition of terrorism in the Canadian anti-terrorism legislation was narrowed in the course of its parliamentary passage, and is narrower in certain respects than the definition in the UK Terrorism Act 2000. We heard that there were still concerns that it was too wide, and in fact recently the Canadian Government has indicated that it also thinks it might be too wide and is considering amending it to remove the requirement that the prosecution prove a particular motive for a terrorist act.

148. This is not a matter on which we have asked for or received evidence. In the course of our inquiry, however, we heard from the DPP that a narrower definition of terrorism would not be unhelpful from the CPS's perspective, as it would enable it to focus its efforts on more serious cases. We can see that one of the problems with the breadth of the definition of terrorism is that it makes prosecutions of terrorist offences more difficult. We are also of course well aware that the width of the definition of the offence also has implications for community relations because of the large amount of discretion which is given to law enforcement officials exercising counter-terrorism powers. This is therefore a matter to which we may return in a future report.

Discrimination and impact on communities

149. In our earlier Reports we have expressed concern about the danger of counter-terrorism measures discriminating against members of minority groups, and in particular Muslims, and warned of the danger of the counter productivity of some of those measures.[73]

150. We remain very concerned about the impact of the Government's counter-terrorism strategy on the very people and communities whose trust and confidence in the police and security services is essential for the provision of reliable intelligence information.

151. We have found particularly helpful on this question our visit to Canada, where we were struck by the strength of national pride in accepting diversity and encouraging multiculturalism. In Canada, 2% of the population is Muslim, and most of these live in Toronto. We heard that Muslims in Canada were very conscious of the possibility of being subject to surveillance; Muslims were under-represented in the Royal Canadian Mounted Police (RCMP) and the Canadian Security and Intelligence Service (CSIS); allegations of racial profiling persisted and were difficult to prove or disprove in the absence of statistics. We heard that the Arar Commission, which was set up to investigate the rendition of a Canadian-Syrian dual national, Maher Arar, to Syria where he was tortured, is seen as being of great importance by Canada's minority communities. We also heard from Lead Counsel to that Commission that the intelligence services and the police needed to develop a proper understanding of the cultures of the communities with which they were working. We note that there have been many similar calls recently in this country, particularly in the wake of the recent police action under the Terrorism Act in Forest Gate in London.[74]

152. The Canadian Human Rights Commission, which is essentially an anti-discrimination body, indicated to us that the full impact on minority communities of the Canadian Anti-terrorism Act and other counter-terrorism measures taken since 9/11 had not yet been ascertained by the necessary empirical work. We asked whether the Canadian Anti-Terrorism Act and the surrounding climate had led to any discrimination against the Muslim minority or to any perception that Muslims were being targeted. The Commission was aware of a small increase in discrimination allegations against Canadian immigration officials at the border, but there had been no appreciable increase in the number of complaints of discrimination. Research was currently being conducted to establish whether racial profiling was in fact taking place in the exercise of various powers such as stop and search or preventive detention. If that research demonstrated that the powers were being used in a discriminatory way then the Commission would have a lot to say, but it was too early to say at this point.

153. We noted with interest that the Canadian Human Rights Commission has a memorandum of understanding with Canada Borders (the immigration agency), in which Canada Borders agree to be more sensitive to the danger of discrimination in their intelligence handling and in their procedures. There are no court judgments in Canada concerning racial profiling.

154. The Ontario Human Rights Commission recently conducted an inquiry into the effects of racial profiling on individuals, families, communities and society as a whole, undertaken as part of their mandate to advance legislation and improve human rights protection, and culminating in a Report on "The Human Cost of Racial Profiling".[75] Whereas the Canadian Human Rights Commission's research is aimed at ascertaining the existence and extent of racial profiling, the Ontario Commission's inquiry assumed the existence of racial profiling and focused on the effect of such profiling. It sought to answer why it is wrong to racially profile. For the purposes of their inquiry, racial profiling was defined as action taken for securing public safety relying on stereotypes about race, colour, or ethnicity rather than on reasonable suspicion in order to single out an individual for greater scrutiny or different treatment.

155. The study, which took 500 testimonials from all sections of the community, identified a number of consequences of profiling: (i) it tended to target younger people and hence compromised our future; (ii) it created mistrust of institutions; (iii) it contributed to a feeling of alienation and reduced sense of citizenship; (iv) it impacts on community cohesion; (v) it changes the behaviour of individuals as they try to adapt to the mainstream; (vi) loss of dignity; (vii) physical effects; and (viii) there were economic costs to society as people stopped participating fully.

156. The Ontario Human Rights Commission told us that its research had helped to move the debate about racial profiling in Canada on to the question of how to mitigate the impact of racial profiling on minority communities. We were told that the police were now accepting that racial profiling exists and inviting the Ontario Human Rights Commission to help to address it, realising that racial profiling is counterproductive because it alienates the very community on which they depend for intelligence. The Commission was therefore now focusing on preventive strategies, involving policies, guidelines and training.[76] The Commission also stressed the importance of people having some avenue of recourse, external to and independent from the police, through which they could complain if they felt that they had been a victim of racial profiling.

157. In Canada there have been calls for an amendment to the Criminal Code to define improper racial profiling and to provide remedies and monitoring for these practices, as well as imposing a reporting requirement on law enforcement officials about their use of racial profiling.

158. Two of the counter-terrorism powers in the UK which gives rise to strong concerns about racial profiling are the power to stop and search without reasonable suspicion contained in s. 44 of the Terrorism Act 2000 and the power to stop at ports contained in Schedule 7 of the Act. The operation of the former provision was recently considered by both the Judicial Committee of the House of Lords,[77] and Lord Carlile in his Report on the Operation in 2005 of the Terrorism Act 2000.[78] This is a matter to which we may return in a future report in this inquiry.

Parliamentary accountability

159. In our earlier reports we have frequently commented on the lack of opportunities for independent democratic scrutiny of the Government's assessment of the level of the threat from terrorism. In particular, we have pointed out that unless both Parliament and the public are better informed about both the nature and the level of that threat, it is impossible for them to make meaningful judgments about whether the counter-terrorism measures proposed to counter that threat are justified in order to meet that threat.

160. As mentioned above (paragraph 90), we wrote to the Director General of the Security Services, Dame Eliza Manningham-Buller, in January 2006 asking her to give evidence to us or to meet us informally. She refused.[79] She said that all of the areas outlined in our letter have been or are the subject of investigation by the ISC. As far as the use of intercept evidence in court is concerned, she said that this is primarily a matter for the Home Secretary.

161. While we welcome the Director-General's willingness to provide information to parliamentary committees about the nature and level of the threat from terrorism, we regret that we did not have the opportunity to ask her a number of important questions of concern to us in connection with this inquiry. We have no desire to obtain access to State secrets, but we do consider it to be a matter of some importance that the head of the security services be prepared to answer questions from the parliamentary committee with responsibility for human rights.

162. On our visit to Canada, we saw the Security and Intelligence Review Committee which was set up in 1984 by the same statute which established the Canadian Security and Intelligence Service (CSIS). CSIS had 2 review/oversight mechanisms: the internal Government Office of the Inspector General, and SIRC. SIRC's functions were (i) to review CSIS's performance of its duties and functions against law, ministerial directions and CSIS's internal policies, and (ii) to investigate complaints by individuals or groups about any act or thing done by CSIS or the security vetting process. Cases were sometimes referred to SIRC by the CHRC or the Minister of Immigration. SIRC produced annual reports, often opaque because of national security considerations. The Committee consisted of 5 eminent Canadians, who met in Ottawa once a month. We commented in our recent Report on the UN Convention against Torture on SIRC's role in scrutinising agreements between Canadian and overseas intelligence agencies about the exchange and use of information.[80] The Canadian Government was currently considering a proposal to establish a parliamentary oversight committee, along the lines of our Intelligence and Security Committee, in response to a perceived "democratic deficit" in the oversight of the intelligence services.

163. The Canadian Human Rights Commission was hoping to finalise a Memorandum of Understanding with the intelligence services, which it hoped would include agreement about its role in assisting SIRC with its oversight of the intelligence services.

164. In our view, there is an increasingly urgent need to devise new mechanisms of independent accountability and oversight of both the security and intelligence agencies and the Government's claims based on intelligence information. In addition to more direct parliamentary accountability, we consider that in principle the idea of an "arms length" monitoring body charged with oversight of the security and intelligence agencies, independent of the Government and those agencies, and reporting to Parliament, merits consideration in this country.

Sunset clauses, reporting requirements and annual review

165. The Canadian Anti Terrorism Act contains a genuine sunset clause: that is, a provision which limits the life of the legislation to five years, and requires new legislation to be passed at the end of that period. This is to be contrasted with the provision contained in the Prevention of Terrorism Bill 2005, often incorrectly referred to as a "sunset clause", which required the legislation to be renewed after 12 months by ministerial order.

166. The contrast between the two types of provision can be seen by comparing the amount of parliamentary scrutiny of the renewal of the Canadian Anti Terrorism Act with that of the UK Prevention of Terrorism Act 2005. In Canada, there have been detailed hearing before Committees of both the House of Commons and the Senate, examining the operation of the legislation and practice and the evidence of the continued need for it. In the UK, by comparison, there was a single debate of one hour in each House before the renewal of that part of the Prevention of Terrorism Act 2005 which authorises the making of control orders.

167. We recommend that in future all terrorism legislation should have a life limited to five years maximum, and require renewal by primary legislation not ministerial order.

168. In Canada we found that there is a new emphasis on the importance of review, and in particular on ensuring that Parliament's capacity to carry out a meaningful review of the operation of the legislation is bolstered by, for example, reports and the opportunity to hold evidence hearings. The Canadian anti-terrorism legislation also imposes annual reporting requirements and provides for a review of the operation of the Act.

169. We recommend that, in addition to review by the Government-appointed independent reviewer, in future terrorism legislation provision also be made for parliamentary review of the operation of that legislation.

Rights of victims of terrorism

170. In both France and Spain we were told that the rights of victims of terrorism are very strongly protected in law. They receive compensation and assistance from the State. Victims and their associations could also become parties in criminal trials. They seemed to us to have a well established and unquestioned right to participate in both legal proceedings and public inquiries concerning the acts of terrorism in question.

171. This is a matter on which we have not taken evidence in the course of this inquiry, but we are aware of dissatisfaction on the part of many of the victims and families of the victims of the recent terrorist attacks in London about, for example, the amount of compensation they have received and the time it has taken, and the lack of an independent public inquiry into the events of 7 July, such as has taken place in other countries such as Spain. The rights of victims of terrorism to know the truth, to participate in the process of holding violators to account, and to reparation are also increasingly recognised in international human rights standards.[81] This is therefore another matter to which we may return in a future report in this inquiry.

71   Appendix 1 Back

72   Third Report of Session 2005-06, op. cit., at para. 13 Back

73   Third Report of Session 2005-06, op cit. and Twelfth Report of Session 2005-06 Back

74   For example from Trevor Phillips, Chair of the Commission for Racial Equality Back

75   Paying the Price: The Human Cost of Racial Profiling (Ontario Human Rights Commission), 2003, Error! Bookmark not defined.  Back

76   The Commission has produced, for example, Policy and Guidelines on Racism and Racial Discrimination, available from the Commission's website Back

77   Gillan v Commissioner of Police for the Metropolis [2006] UKHL 12, (2006) 2 WLR 537.The House of Lords upheld the lawfulness of the use of the power to stop and search a student demonstrator and a journalist in the vicinity of an arms fair. Lord Brown of Eaton-under-Heywood said, at para. 81, "Ethnic origin accordingly can and properly should be taken into account in deciding whether and whom to stop and search provided always that the power is used sensitively and the selection is made for reasons connected with the perceived terrorist threat and not on grounds of racial discrimination." Back

78   Report on the Operation in 2005 of the Terrorism Act 2000, at paras 90-103.Lord Carlile observed that terrorism-related powers should be used for terrorism related purposes, otherwise their credibility is severely damaged, and that in a diverse community the erroneous use of powers against people who are not terrorists is bound to damage community relations. He was sure that s. 44 could be used less and expected it to be used less, and found little or no evidence that the use of s.44 has the potential to prevent an act of terrorism as compared with other statutory powers of stop and search. In his view, however, s.44 remained necessary and proportional to the continuing and serious risk of terrorism. Back

79   Appendix 7 Back

80   Nineteenth Report of Session 2005-06, The UN Convention Against Torture, HL Paper 185-I, HC 701-I, para. 60 Back

81   See our report on the Northern Ireland Offences Bill contained in our Seventh Report of Session 2005-06, Legislative Scrutiny: Fourth Progress Report, HL Paper 98, HC 829, for a summary of the relevant standards Back

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