6. Letter from the Rt Hon Baroness
Scotland of Asthal QC, Minister of State, Home Office
You wrote to the Home Secretary on 16 October
inviting written evidence to be submitted to your committee in
advance of a Ministerial appearance before your committee to provide
it with oral evidence. Our offices have been in contact and agreed
a date of 30 October. As I shall be attending, I am also replying
on the Home Secretary's behalf.
You asked specifically about two issues; the
first that of a BBC report earlier this year regarding our internal
review, and secondly the Government's intervention in the case
of "Ramzy" in order to reconsider the principle
laid down in the "Chahal" case. I will deal with
these in turn.
The BBC reports in July referred to a leaked
discussion document that formed part of the work on the "Review
of decision-making in the Criminal Justice, Immigration and Asylum
Systems". The document was drafted to inform our initial
discussions around areas where legislation, regulations and administrative
rules or the interpretation and administration of legislation
and regulations may be impeding decision-making. The document
was a starting point for discussion and was not identifying conclusive
examples of where the Human Rights Act had been found to impede
The conclusions and recommendations from the
"Review of decision-making in the Criminal Justice, Immigration
and Asylum Systems" have been published in the CJS Rebalancing
Review. However, to inform this JCHR inquiry please find attached
at Annex 1 the summary of the findings from the Review of decision-making
in the Criminal Justice, Immigration and Asylum Systems.
The second point you raise relates to the Government's
decision to intervene in the case of Ramzy v the Netherlands
and invite the European Court of Human Rights to reconsider
the principle established in the Chahal judgment.
You say in your letter that "the Chahal
judgment only applies in cases where it has first been
established that substantial grounds have been shown for believing
that a person faces a real risk of torture or death". Further,
that any reversal of the judgment which allowed us to deport someone
despite such a risk would risk undermining the absolute prohibition
on torture in the European Convention on Human Rights (ECHR) and
in the United Nations Convention Against Torture (UNCAT).
In fact, it is not the case that Chahal applies
only to cases involving the possibility or torture or death. The
judgment applies to any treatment that would be contrary to Article
3. The full wording of the Article states that "No one shall
be subjected to torture or to inhuman or degrading treatment or
punishment", and the concept of inhuman and degrading treatment
or punishment encompasses substantially more than just torture.
More importantly, however, what we are asking the court to reconsider
is the process by which the assessment of "substantial grounds
of a real risk" is made, rather than what should happen once
that conclusion has been reached.
As far as the death penalty is concerned, our
position is quite clear. We will not deport or extradite someone
if there is a real risk of their being executed. Our intervention
in Ramzy does not alter this.
I believe the JCHR will have seen the observations
which we, and the Governments of Lithuania, Portugal and Slovakia,
have made in Ramzy, but I am enclosing a further copy for
ease of reference, attached as Annex 2. As that document makes
clear, the position of the intervening Governments is that:
no challenge is made to the absolute
nature of the prohibition in Article 3 against a Contracting State
itself subjecting an individual to Article 3 ill-treatment;
however, the context of removal involves
assessments of risk of ill-treatment, and needs to afford proper
weight to the fundamental rights of the citizens of Contracting
States who are threatened by terrorism;
it is necessary and appropriate for
all the circumstances of a particular case to be taken into account
in deciding whether or not a removal in the situation set out
above is, or is not, compatible with the ECHR, and that national
security considerations cannot simply be dismissed as irrelevant
in this context.
We take the view that, in judging whether substantial
grounds exist to believe that the person faces a real risk of
ill-treatment, it ought to be both necessary and appropriate to
have regard to the fact that both (a) the degree and nature of
any risk in the receiving State and (b) the degree and nature
of the threat posed by an individual, are relative.
As I have said, Article 3 does not apply just
to cases at the extreme end of seriousness, such as torture. Treatment
falling within Article 3 exists in a spectrum of seriousness.
It is true that a minimum level of severity must be reached for
a case to fall within Article 3. However, at the lower end of
the spectrum, the concept of degrading treatment is a relatively
broad one, as the cases referred to in paragraph 24.2 of the joint
observations illustrate. The greater the reach or coverage of
Article 3, the more pressing becomes the issue whether a terrorist
threat should be wholly left out of account. This is one of the
reasons we have intervened as we have.
We are not seeking to argue that national security
considerations will inevitably permit removal of a person believed
to present a threat on national security grounds. The point is
a narrower one: national security considerations cannot be dismissed
as irrelevant, and Contracting States should be able to take them
into account in considering whether a particular removal would
be contrary to Article 3.
A second consideration where we are seeking
clarification is the standard imposed by the "substantial
grounds for believing there is a real risk" formula enunciated
in Chahal. In practice, the Court appears to apply a lower
test than "more likely than not". In a case in which
there is a material indicating a national security threat, we
believe it would be appropriate to require it to be shown more
clearly, or to a higher standard, that a person might be ill-treated
before deciding that removal would contravene Article 3.
I hope this clarifies the Government's reasons
As the JCHR is aware, within the constraints
of the present definition of Article 3, we have been negotiating
Memoranda of Understanding and agreeing other procedures for seeking
assurances on a case-by-case basis that allow us to satisfy ourselves
that the removal of certain individuals is compatible with our
obligations under the ECHR. Although the focus recently has been
on assurances in respect of people we wish to deport on grounds
of national security, we have, in the past, obtained assurances
in respect of individuals we wish to deport on other grounds.
Depending on the circumstances of the particular case, I think
it likely that we will continue to obtain assurances in individual
cases even if we are successful in securing a modification of
the current caselaw.
I hope this is helpful in addressing the points
you raised in your letter.