Joint Committee On Human Rights

Joint Committee On Human Rights Third Report

1 Introduction

1. This Report 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. Recognising that reconciling the requirements of security and public safety with human rights standards is likely to be a dominant theme in Parliament's work this Session, we decided to conduct an inquiry into "counter terrorism policy and human rights". On 21 September 2005 we issued a call for evidence on the human rights implications of developments in counter-terrorism policy in the UK since 7 July 2005 and potential future developments in that policy, including but not restricted to:

i. the new list of "unacceptable behaviours" drawn up after consultation indicating some of the circumstances in which the Home Secretary may exercise his powers of exclusion or deportation;

ii. the Government's intention to deport non-UK nationals suspected of terrorism on the basis of diplomatic assurances and the potential conflict with Article 3 ECHR;

iii. the various measures announced by the Prime Minister at his press conference on 5 August (available in full at www.number-10.gov.uk)

iv. the possibility of allowing sensitive evidence, including intercept evidence, to be adduced in criminal trials

v. the possibility of establishing a judicial role in the investigation of terrorist crimes

vi. the overall social and political context in which human rights standards are understood and applied by the courts, the Government and others, and in which the requirements of security are reconciled with those standards.

2. We also called for evidence on the human rights compatibility of the provisions of the draft Terrorism Bill, the Terrorism Bill and the Government's amendments to the Immigration, Asylum and Nationality Bill.

3. We have received written evidence from a number of organisations: the Campaign Against Criminalising Communities, the Mental Health Act Commission, the Law Society, the Redress Trust, Amnesty International, the Medical Foundation for the Care of Victims of Torture, British Irish Rights Watch, the Immigration Law Practitioners' Association, JUSTICE, Liberty, the Mayor's Office of the Greater London Authority, the British Psychological Society, Human Rights Watch and the Association of University Teachers. We also received written evidence from two interested individuals, Dr. Chris Pounder and Professor Clive Walker. We heard oral evidence from the Home Secretary, the Rt Hon Charles Clarke MP; Mr. Peter Clarke, Deputy Assistant Commissioner and Head of the Metropolitan Police Anti-Terrorist Branch; Mr Ken Jones, Chief Constable of Sussex Police; Professor Clive Walker, and representatives of Amnesty International, JUSTICE, Liberty, the Law Society and the Muslim Council of Britain. This evidence is published in a separate volume. We are grateful to all of those who have assisted us in our inquiry so far.

The human rights implications of the terrorist attacks in London

4. The terrorist attacks in London in July 2005 constitute gross violations of human rights. The murder of 52 innocent civilians and severe maiming of scores of others is an act not capable of legal justification. Such terrorist acts are universally recognised as being gross violations not only of the rights of the individuals killed and injured, but also of the foundational values of democracy and the rule of law on which human rights law is built.[1] They can never be justified by invoking the language of human rights, for it is well established in human rights law that invoking human rights to justify the destruction of other human rights is an abuse of rights and never attracts protection. Human rights law is unequivocal in its condemnation of these atrocities.

5. Human rights law, however, does more than merely condemn such unjustifiable crimes. It also imposes onerous positive obligations on states to take steps to protect the lives and physical integrity of everyone within their jurisdiction against the threat of terrorist attack.[2] Moreover, those steps must be effective in providing such protection. The increasing recognition of the rights of victims also entails a corresponding obligation on states to do everything possible to bring to justice suspected perpetrators, organisers and sponsors of terrorist acts.[3]

6. Where an attack has taken place, it follows that the state is required by human rights law itself to review the adequacy of the legal measures it has in place to protect people from terrorist attack and to bring the perpetrators to justice, and to take such measures as are identified as being necessary to provide adequate protection. This is the first of the human rights implications of the attacks themselves.

7. The second implication of the attacks concerns the application and interpretation of the relevant human rights standards. The Government argues that the fact of the attacks having taken place is a significant change of circumstances which affects the way in which the relevant human rights standards apply in the UK.[4] We accept that this is correct in a number of respects. The fact that the attacks have taken place, for example, is highly relevant evidence to any factual assessment of the level of the terrorist threat faced by the UK, which itself is relevant both to whether there exists a public emergency threatening the life of the nation[5] and to the proportionality of any interference with those human rights which can be restricted in the interests of public safety and national security.[6] The European Court of Human Rights explicitly takes into account the problems of preventing terrorism as part of the background when deciding the proportionality of interferences with certain rights.[7] The fact that attacks have recently taken place will therefore be regarded as an important part of the context when the justification for measures restricting rights is being considered.

8. However, even in the immediate aftermath of a serious terrorist attack, it remains the case that all measures taken by states to counter terrorism must respect human rights and the principle of the rule of law; they must exclude any form of arbitrariness, as well as any discriminatory or racist treatment, they must be subject to appropriate supervision, and they must respect the absolute prohibition of torture.[8] In other words, national rules may change in the wake of an attack to the extent required and permitted by human rights law, but the applicable human rights rules themselves do not change. The UK has frequently been a party to intergovernmental statements reaffirming that states must ensure that all counter-terrorism measures, and their implementation, are in accordance with all relevant international human rights standards, including refugee and humanitarian law,[9] most recently in the UN World Summit Declaration on 16 September 2005.[10] We welcome the Home Secretary's unequivocal acceptance in his evidence to us that "it is important that any legislation that we propose is consistent with both the European Convention on Human Rights and also human rights law in general".[11]

9. We have also been very struck in the course of our inquiry so far by the number of organisations who are deeply concerned about the danger of certain of the counter-terrorism measures being counterproductive in the sense that they risk alienating the very sections of the community whose close co-operation and consent is required if terrorism is to be defeated.[12] These were sometimes presented as pragmatic concerns about the effectiveness of the measures proposed in achieving their aims. We regard this as being directly relevant to any assessment of the human rights compatibility of the measures. If the measures introduced to improve security are in fact counterproductive, the state will be failing to fulfil its positive obligations outlined above. We welcome the Home Secretary's acceptance that "one of the most damaging things would be to have any growth of frustration, alienation … as a result of the application of the legislation"[13] and acknowledge that the Government believes that it has "worked closely with the Muslim community … in order to try and ensure that, in so far as we can achieve it, the measures that we propose could not lead to any generalised counter reaction".[14]

The Measures

10. Since the first attacks on 7 July a number of counter-terrorism measures have been introduced by the Government. They range from administrative measures, not requiring legislation, which have already been consulted on and implemented, to measures which require primary legislation. This Report is concerned principally with the following measures:

(1) The Terrorism Bill;

(2) The list of "unacceptable behaviours";

(3) The administrative practice of deporting on the basis of assurances;

(4) The Government's intervention in a case before the European Court of Human Rights to invite the Court to overturn its decision in Chahal; and

(5) Those aspects of the Immigration, Asylum and Nationality Bill dealing with terrorism and national security (consisting of amendments made and new clauses added to the Bill at committee stage in the Commons)[15].

11. After publication of this Report we will be continuing our inquiry into counter-terrorism policy and human rights, and we expect to give further consideration to a number of matters, some of which are covered in this Report. Amongst these issues will be—

possible mechanisms whereby the judiciary could have an investigative role in relation to terrorist offences
whether, and if so the means by which, intercept evidence could be used in courts
proposed powers to control places of worship
use of lethal force by the police
significant changes or additions to the Terrorism Bill or the Immigration, Asylum and Nationality Bill made after the publication of, and not covered in, this Report, where it is appropriate, and timely to do so.

We are also conducting a separate inquiry into the UK's compliance with the terms of the UN Convention against Torture (UNCAT). In some respects that inquiry overlaps with this one. In the context of that inquiry we will be giving further consideration to issues such as the use of evidence which may have been obtained by torture, deportations with assurances, and extraordinary renditions.

The definition of "terrorism"

12. A number of the questions we address in this Report relating to the human rights compatibility of the provisions of the Terrorism Bill and related measures hinge upon the definition of "terrorism" on which they rely. This definition is contained in section 1 of the Terrorism Act 2000, which includes any action designed to influence the policy of any government, anywhere in the world, including by, for example, damage to property. The main problem to which this gives rise is that the counter-terrorism measures are capable of application to speech or actions concerning resistance to an oppressive regime overseas. For example, the creation of the offence of encouragement of "terrorism" defined as broadly as in s.1 of the Terrorism Act is to criminalise any expression of a view that armed resistance to a brutal or repressive anti-democratic regime might in certain circumstances be justifiable, even where such resistance consists of campaigns of sabotage against property, and specifically directed away from human casualties. The Home Secretary does not deny that this is the effect of the offence but defends its scope on the basis that there is nowhere in the world today where violence can be justified as a means of bringing about political change.[16] He went on to say that new offences of encouragement would apply to those seeking to justify acts of vandalism or sabotage against property in the area of animal rights extremists.[17]

13. In letters of 25 October to the Chairman of the Commons Home Affairs Committee and the front-bench spokesmen of the two main Opposition parties, the Home Secretary set out the difficulties he saw with establishing an alternative and narrower definition of terrorism which could, for example, concentrate on attacks on civilians, concluding that it was necessary to stick with the definition in the 2000 Act. However, it appears clear that the alternative definitions set out in that letter—the EU Council Framework Decision and UN Security Council Resolution 1566[18]—are narrower in the area of damage to property than that given in the 2000 Act. It remains the case that the breadth of this definition raises a number of problems in relation to provisions of the Terrorism Bill and related matters, particularly in relation to the proposed new offence of encouragement and glorification of terrorism and similar new offences in clauses 1, 2 and 8, the new power to proscribe organisations in clause 21, powers to deprive individuals of British citizenship or right of abode, powers to deny asylum to individuals through a wide construction of Article 1Fc of the Refugee Convention, and the list of unacceptable behaviours which the Home Secretary has adopted to guide the exercise of his discretion to exclude or deport. The Home Secretary has announced that he has invited Lord Carlile to undertake a review of the definition of "terrorism", consulting parliamentary committees as appropriate. We welcome this initiative and believe it to be urgently essential. However, we believe that the definition of terrorism—for the purposes of the provisions identified in this paragraph—needs to be changed in order to avoid a high risk of such provisions being found to be incompatible with Article 10 of ECHR and related Articles.

1 See for example, UN General Assembly Resolution 54/164, Human Rights and Terrorism, 17 December 1999, recognising that terrorism is aimed at the destruction of human rights, fundamental freedoms and democracy; and, most recently, the Preamble to the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196), signed on 16 May 2005: "Recognising that terrorist offences and the offences set forth in this Convention, by whoever perpetrated, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature". Back

2 See the Joint Committee on Human Rights report on Review of Counter-terrorism Powers, 18^th Report of Session 2003-04 (HL Paper 158, HC 713) at paras 7-14. Back

3 See for example the Council of Europe Guidelines on the Protection of Victims of Terrorist Acts (2005), published in The fight against terrorism: Council of Europe Standards (CoE Publishing, 3^rd edn., 2005) at p. 331. Back

4 See in particular the statement of the Prime Minister on 5 August 2005 (see below).The Home Secretary similarly stated, announcing the arrest and detention of ten individuals with a view to their deportation: "The circumstances of our national security have changed. "Cf. the Director General of the Security Service who has said that the UK's plans for its Presidency of the EU have not needed to be much amended in light of the attacks because "we anticipated further attacks and were not surprised when they occurred": "The International Terrorist Threat and the Dilemmas in Countering it", speech by the Director General of the Security Service, Dame Eliza Manningham-Buller, at the Ridderzaal, Binnenhof, The Hague, Netherlands, 1 September 2005. Back

5 For the purposes of derogating from Convention obligations under Article 15 ECHR Back

6 Most significantly Articles 8-11 ECHR Back

7 See for example United Communist Party of Turkey v Turkey (1998) 26 EHRR 121 at para. 59 Back

8 See Council of Europe Guidelines on Human Rights and the Fight Against Terrorism (July 2002), Guideline II (published in The fight against terrorism: Council of Europe Standards, op cit., at p. 295) Back

9 See for example UN Security Council Resolution 1456 (2003), UN Doc. S/RES/1456 (2003), Annex at para. 6: "States must ensure that any measure taken to combat terrorism complies with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee and humanitarian law. "See, to similar effect, the Council of Europe Guidelines on the Protection of Victims of Terrorist Acts (2005), published in The fight against terrorism: Council of Europe Standards (CoE Publishing, 3^rd edn., 2005) at p. 331. Back

10 UN Doc. A/60/L.1, A/RES/60/1 at para. 85, using the same formula as in Security Council Resolution 1456 (2003). The formula appears again in the UN Security Council Resolution concerning incitement to commit terrorist acts (Resolution 1624 (2005), UN Doc. S/RES/1624 (2005) at para. 4). A similar formula appears in Council of Europe intergovernmental agreements, for example, the Convention for the Prevention of Terrorism (above). Back

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