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In this report, the Committee's first report in its ongoing inquiry into counter-terrorism policy and human rights, the Committee considers the human rights implications of the terrorist attacks and attempted attacks in London on 7 and 21 July 2005 and of various counter-terrorism measures which have been taken by the Government in the wake of those attacks: the Terrorism Bill, the changes to the way in which the power of deportation and exclusion will be exercised, and the counter-terrorism clauses of the Immigration, Asylum and Nationality Bill. The Committee considers that the definition of "terrorism" needs to be changed for the purposes of many of these measures if they are to avoid incompatibility with human rights standards (paras 12-13).
Terrorism Bill
Encouragement and glorification of terrorism
The Committee accepts, on balance, that the case has been made out by the Government that there is a need for a new, narrowly defined criminal offence of indirect incitement to terrorist acts. However, it considers that the offence of encouragement in clause 1 is not sufficiently legally certain to satisfy the requirement in Article 10 that interferences with freedom of expression be "prescribed by law" because of (i) the vagueness of the glorification requirement, (ii) the breadth of the definition of "terrorism" and (iii) the lack of any requirement of intent to incite terrorism or likelihood of such offences being caused as ingredients of the offence. In the Committee's view, to make the new offence compatible, it would be necessary to delete the references to glorification, insert a more tightly drawn definition of terrorism, and insert into the definition of the offence requirements of intent (which could include subjective recklessness instead of the objective recklessness test introduced at Commons report stage) and likelihood. The Committee also believes that a "reasonable excuse" or "public interest" defence to this new offence should be included to make it less likely that the offence would be incompatible with Article 10 of the European Convention on Human Rights (ECHR). The Committee also considers that the new offence does not faithfully implement Article 5 of the European Convention on the Prevention of Terrorism, because it does not contain either of the two restrictions on the scope of the offence which that Convention requires, and would therefore be an obstacle to ratification of the Convention by the UK. (paras 18-41)
Other new offences
The Committee considers that the proposed new offence of dissemination of terrorist publications suffers from some of the same compatibility problems as those identified in relation to the proposed encouragement offence: including the lack of connection to incitement to violence, and the absence of any requirement that such incitement be either intended, carried out with reckless indifference, or likely. The Committee recommends that a "reasonable excuse "or "public interest" defence, which would provide protection of the legitimate activities of the media and academics, be included to make it less likely that the offence would be incompatible with Article 10 ECHR. (paras 42-49)
The Committee is satisfied, on balance, that the necessity for the new offence of preparation of terrorist acts has been made out. It recommends that a "reasonable excuse" or "public interest" defence to the new offence of training for terrorism be included. In the Committee's view, criminalising mere attendance at a place used for terrorist training appears to be disproportionate, and in order to be compatible with Article 10 ECHR the scope of the new offence should be qualified, for example by requiring an intention to use the training for terrorist purposes. It considers that extending the grounds of proscription to cover organisations glorifying acts of terrorism is unlikely to be compatible with the right to freedom of expression in Article 10 ECHR or the right to freedom of association in Article 11 ECHR for the same reasons as those given above in relation to the new offence of encouraging and glorifying acts of terrorism. (paras 50-63)
Pre-charge detention
In relation to the Bill as introduced, on the compatibility of a maximum pre-charge detention period of 90 days with the UK's obligations under the Convention (notably Article 5), the Committee concluded that three months would have been clearly disproportionate and, in view of the deficiencies in the procedural safeguards for the detainee, which the original Bill did nothing to improve, would also have been accompanied by insufficient guarantees against arbitrariness. It would also in the Committee's view have risked leading to independent breaches of Article 3 ECHR, and to the inadmissibility at trial of statements obtained following lengthy pre-charge detention. Similar, if less substantial risks obtain, in the Committee's view, even in relation to the 28-day maximum period now allowed for in the Bill. Recognising that this is a matter on which the relevant legal standards are not very concrete, but bearing in mind the heavy onus of justification on the state where it is depriving of liberty, in the Committee's view the proportionality case for any increase from the current 14 day limit has not so far been made out on the evidence. It does not, however, rule out the possibility that such evidence might be produced which would persuade it that a proportionate extension of the maximum period of detention would be justified, subject to the necessary improvements in procedural safeguards for the detainee being made. (paras 64-92)
In the Committee's view, any increase beyond the current 14 day maximum would at the very least require amendment of the relevant provisions of the Terrorism Act 2000 which currently enable detention to be extended in the absence of the detainee or his or her legal representative and on the basis of material not available to them. There should be nothing less than a full adversarial hearing before a judge when deciding whether further detention is necessary, subject to the usual approach to public interest immunity at criminal trials, including when necessary the use of a special advocate procedure when determining whether a claim to public interest immunity is made out. Such safeguards would make it much less likely that the UK would be found in breach of the right to liberty guaranteed in Article 5 of the Convention. The Committee also considers that the provision in the Bill for, in effect, a presumptive minimum of 7 day extensions requires deleting. The presumption should be in favour of liberty not detention. The Committee welcomes the provision that the judge authorising further detention should be a High Court judge. It would also prefer a higher level of police officer to be responsible for the application to the judge, such as an Assistant Chief Constable or Chief Constable. The new ground for extending detention does not of itself raise any human rights issues. (paras 93-103)
Deportation and exclusion
"Unacceptable behaviours"
In the Committee's view the phrase "fomenting, justifying or glorifying terrorist violence" on the list of unacceptable behaviours justifying deportation suffers from the same legal uncertainty as afflicts the criminal offence of encouragement and glorification in clause 1 of the Bill. The Committee welcomes the Home Secretary's undertaking to reconsider the wording of his list of "unacceptable behaviours" when the Terrorism Bill has received Royal Assent, but believes that the unacceptable behaviours wording should be immediately amended to render it legally certain and less broad. Any such modification will also have a key role in the application of powers to deprive persons with dual nationality of British citizenship, or others their right of abode. Without such a modification there is a high risk that the application of this part of the list of unacceptable behaviours will be in breach of Article 10 ECHR and the use of other powers based on the application of the list will cause further breaches of ECHR rights. If the retrospective application of the new list of unacceptable behaviours leads to the deportation of individuals for views expressed before the publication of the new list, and in circumstances in which the power has never previously been exercised, there is also in the Committee's view a serious risk that such exercise of the power will be incompatible with the prescribed by law requirement in Article 10 ECHR. (paras 109-119)
Deportation with assurances
In relation to deportation with assurances, in the Committee's view states are entitled to seek assurances about torture from other states, particularly in the context of wider and more concerted efforts to address the human rights situation within the other state, and such assurances are capable, in principle, of satisfying the State's obligation not to return an individual to a serious risk of torture. They will be treated by the courts as being relevant to the assessment of the risk of a person being subjected to torture in the particular circumstances of the case, along with all relevant evidence about the likelihood of their being respected in practice. The Committee welcomes the Home Secretary's unequivocal acceptance that whether a deportee faces a substantial risk of torture on his return is a matter for the courts, which in the Committee's view is a correct understanding of the legal framework under which it is for the courts to determine the factual question of whether an individual faces a substantial risk of torture on his return. (paras 120-146)
Torture and national security
The Committee welcomes the Home Secretary's unequivocal statement that he is not prepared to deport somebody where he is satisfied that there is a substantial risk of their being tortured in the receiving country, which reflects the UK's obligations under the absolute prohibition on torture. In the Committee's view, it follows from the Government's acceptance of the absolute nature of the torture prohibition that considerations of national security cannot be balanced against the risk of torture. (paras 147-152)
Immigration, Asylum and Nationality Bill
Deprivation of British citizenship
The Committee considers that the new test for deprivation of citizenship contains insufficient guarantees against arbitrariness in its exercise in light of (i) the significant reduction in the threshold, (ii) the lack of requirement of objectively reasonable grounds for the Secretary of State's belief, and (iii) the arbitrariness of the definition of the class affected, and that it therefore gives rise to a risk of incompatibility with a number of human rights standards. (paras 155-164)
Deprivation of right of abode
In relation to the power to deprive of a right of abode, the Committee considers that (i) the same problems with the significant reduction in the threshold referred to in relation to the power to deprive of citizenship also apply to the use of the power to deprive of a right of abode and that (ii) the legal uncertainty caused by the width of the current definition of unacceptable behaviours means that there are not at present sufficient guarantees against arbitrariness in the exercise of the power to deprive of a right of abode, and that therefore the power as currently set out gives rise to a substantial risk of incompatibility with various human rights. However, in the Committee's view, if these two concerns were addressed, the availability of a full right of appeal in relation to this power would provide a sufficient guarantee. (paras 165-170)
Terrorists and asylum
In relation to the statutory construction of Article 1F(c) of the Refugee Convention, excluding terrorists from international protection as refugees, the Committee considers that in order to be compatible with the Refugee Convention, and to give effect to the Government's stated purpose of merely making explicit what Article 1F(c) implicitly requires, the clause would need to be amended to decouple it from both the broad definition of "terrorism" in s.1 of the Terrorism Act 2000 and the published list of unacceptable behaviours in its present form. (paras 171-179)
Out of country appeals in national security cases
In relation to the clause requiring appeals against deportations on national security grounds to be brought out-of-country, except where the deportation is challenged on human rights grounds, the Committee considers that the failure of the new clause to preserve an in-country appeal on asylum grounds, as well as on human rights grounds, gives rise to a risk of incompatibility with the Refugee Convention. In the Committee's view, the effect of the new clause is that there is no mechanism for independent review of the Secretary of State's assertion that an asylum seeker is a threat to national security before his or her removal. In order to be compatible with the Refugee Convention, it considers that the new clause ought to preserve in-country appeals on asylum grounds as well as human rights grounds. (paras 180-185)
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