Joint Committee On Human Rights Minutes of Evidence

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 decision-making.

  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 for intervening.

  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.

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