Joint Committee On Human Rights Written Evidence

4.  Submission from the Home Office to the JCHR's inquiry into counter-terrorism policy and human rights

  1.  The Committee asked for written evidence from any interested individuals or organisations 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, and in particular—

    —  the various measures announced by the Prime Minister at his press conference on 5 August;

    —  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;

    —  the new list of "unacceptable behaviours" indicating some of the circumstances in which the Home Secretary may exercise his powers of exclusion or deportation;

    —  the possibility of allowing sensitive evidence, including intercept evidence, to be adduced in criminal trials;

    —  the possibility of establishing a judicial role in the investigation of terrorist crimes; and

    —  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.  The Government's overall strategy to respond to the events of July were reflected in the Prime Minister's statement on 5 August and are based around six core elements (which were set out in written evidence submitted by the Home Office to the Home Affairs Select Committee in September):

    (I)  Strengthening the law to enable more prosecutions to be taken against those engaged in terrorism.

    (II)  Improving the judicial processes in cases involving terrorism.

    (III)  Preventing extremists from fomenting terrorism in the UK by excluding or deporting them.

    (IV)  Working with all faith leaders and with the Muslim community to create a society where all faiths can live together in mutual respect and support.

    (V)  Working with our international partners to deliver the counter-terrorism agenda.

    (VI)  Protecting our borders.

  3.  This paper picks up the points the Committee has asked for evidence on by setting out in more detail our approach to (I-IV) above. In delivering each we recognise the need to retain and strengthen our human rights and values. But the right to be protected from the death and destruction caused by indiscriminate terrorism is at least as important as the right of the terrorist to be protected from torture and ill-treatment. The Government is clear that we must not only ensure the protection of individual rights but also the protection of democratic values such as safety and security under the law. While basic human rights are enduring, terrorist attacks, including on Istanbul, Madrid and now London, demonstrate that Europe faces a new and heightened threat to which we must respond.


  4.  We have always said that the best way to deal with the terrorist threat is to prosecute those engaged in terrorism wherever possible. We need a legal framework which addresses the difficult balance in protecting the rights of the individual and the rights of society.

  5.  Prior to 7 July, we were working up proposals for a new Counter-Terrorism Bill, to be brought forward in the spring, which would have at its heart three new offences—acts preparatory to terrorism, indirect incitement to terrorism, and the giving or receiving of terrorist training. Since 7 July we have been thinking further about what we need to do to isolate extremist organisations and those individuals who promote extremism. The legislation we are taking forward will deliver this by making it clear that glorification of terrorism is unnaccetable. It will attack the focuses of extremist organisation whether they be in training camps, bookshops or in places of worship. We believe this package of legislative measures is compliant with ECHR and a more detailed summary of our justification for this is attached at annex A.


  6.  The Committee asked about the possibility of establishing a judicial role in the investigation of terrorist crimes and the possibility of allowing sensitive evidence, including intercept evidence, to be adduced in criminal trials. Securing effective judicial processes in cases of terrorism has in the past been made more difficult by the necessity of using material that, if revealed in open court, would damage national security interests or put lives at risk. Special procedures, such as those used in the Special Immigration Appeals Commission, have been developed and specialist judges identified. Since 7 July we have announced in addition that we will:

    —  expand the court capacity necessary to deal with control orders and other terrorism-related cases, increasing the number of specialist judges able to deal with such cases;

    —  examine whether it might be possible to institute procedures which would enable more sensitive evidence to be adduced in criminal trials; and

    —  consult on setting a maximum time limit for all future extradition cases involving terrorism.

  7.  We are working closely with the judiciary on the development of these measures and there will be extensive judicial oversight of provisions in the Bill such as extending the time suspects can be detained pre-charge.


  8.  The events of the summer confirmed that the circumstances of our national security have changed. In many cases the only means of reducing the threat to our citizens posed by individuals from abroad who foment or instigate terrorism is by removing them to their home countries. In part that will be achieved by broadening the scope for using the home Secretary's powers to exclude or deport people, but the Government has made clear it is also about a new approach to deportation orders under existing grounds. The Home Secretary made it clear on 20 July that he would be looking to make more extensive use of his existing powers. Since the beginning of 23 August individuals whose presence has been assessed as a threat to national security and public order have been served with a notice of intention to deport.

Memoranda of Understanding

  9.  To enable us to give effect to all decisions to deport individuals, it is critical that we have an effective route to deportation. In some cases, this will include having in place clear agreements with foreign Governments about the proper treatment of those to be deported in order that the decision to deport are consistent with the UK's obligations under the ECHR.

  10.  Since December last year the Government has been actively seeking Memoranda of Understanding (MoUs) with key foreign Governments to enable deportations to proceed. Since 7 July that work has gathered further pace and momentum. An approapriate MoU was signed with Jordan in August. Negotiations with Algeria and several other Governments have progressed significantly and we expect to be in a position to make further announcements very shortly.

  11.  A number of people have expressed doubts about the courts willingness to accept these MoUs or the assurances contained therein. It is the belief of the Government that in fact the courts will give proper weight to assurances given by Governments in good faith.

Article 3 of the European Convention on Human Rights

  12.  We have no desire to opt out of, or seek to amend Article 3. Protection from torture and ill treatment is a fundamental human right, and we would not return and individual to a country in the knowledge that they would be tortured. Nor would we extradite or remove a person where the death penalty would be carried out on their return. However the Home Secretary made clear in a speech to the European Parliament on 7 September, that we do believe it is necessary to look very carefully at the way in which the case law around the application of the ECHR has developed, particularly in relation to national security deportations.

  13.  We believe states should legitimately strike a fair balance between the nature of the threat to their national security if a particular person were to remain, against the extent of the potential risk of ill-treatment to that person in the state to which they are being returned. That was the view of seven of the 19 judges of the European Court of Human Rights (ECtHR) who considered the Chahal case in 1996.

  14.  Using normal practice, and with the support of the Netherlands, the UK has been granted leave from the ECtHR to intervene as a third party in a case which the Netherlands currently has before the Court, which turns on Article 3. Intervention has been granted. We will ask the Court to revisit the issues surrounding national security expulsions in the light of current circumstances.

Unacceptable behaviours

  15.  The Home Secretary has always had the power to remove people from this country on the basis of conduct which would not be conducive to the public good. In the past it has been exercised in certain circumstances—for example where there is a threat to national security, public order or risk to the UK's relationship with a third country. It has not traditionally been used to deal with those who foment terrorism, or seek to provoke others to commit terrorist acts. The decision not to use the power in the past reflected the need to tread very careful in matters relating to freedom of speech. However in the light of the attacks in July the Government concluded that the risk to free speech was no longer greater than the security that could be offered by broadening the definition of the basis on which people could be excluded.

  16.  The Home Secretary therefore announced on 20 July that he would consult on how to apply his powers more widely. On 24 August following a short consultation the Government published a list of unacceptable behaviours (attached at Annex B).

  17.  The Government recognises the sensitivities around the use of theses powers and intend to use them in a measured and targeted way. They are not intended to stifle free speech or legitimate debate about religious or other issues. As for all deportation cases we will not extradite a person where the death penalty will be carried out on return . Nor we will remove a person under immigration powers, where this will lead to treatment contrary to Article 3 of ECHR. Nevertheless we believe it essential that if there are people who do not have an absolute entitlement to be in this country and who are abusing the UK in order to promote or assist terrorism in any way it is reasonable that the Home Secretary should be able to use his powers to prevent them from being in the country. That is what the list of unacceptable behaviours seeks to do.

Immigration, Asylum and Nationality Bill

  18.  The Government is also proposing to add new clauses to the Immigration, Asylum and Nationality Bill. These will cover excluding those associated with terrorism from asylum, deprivation of British citizenship where this is conducive to the public good, and non-suspensive appeals against deportation orders in national security cases.

  19.  Under these provisions, any person committing, preparing or instigating terrorism, as well as encouraging or inducing others to commit such acts will be denied asylum. On deprivation of nationality, the Government is proposing a new power to enable the Home Secretary to deprive a person of British citizenship status if he is satisfied that deprivation is conducive to the public good. This will apply to the unacceptable behaviours set out in the list published on the 24 August.

  20.  The provision on non-suspensive appeals against deportation orders in national security cases will provide that the substantive appeal against a deportation order will be from abroad, but the person concerned will be able to make an in country challenge to SIAC on human rights grounds. Where necessary, we will obtain assurances and satisfactory monitoring arrangements as described above in order to show that the individual will not be at risk when returned.

  21.  The Home Secretary is seeking the views of the opposition spokesmen on these additional measures and wrote to Mr Davies and Mr Oaten on 12 October setting out what these will cover. Once finalised, the measures will be published as amendments to the Bill. We aim to table these amendments at the Bill's Committee stage in the Commons from the 18-27 October. We will provide further evidence on these measures once the amendments have been published.


  22.  The Government's efforts to tackle extremism are firmly rooted in the need to strengthen our democracy and secure the rights of all communities by promoting a society based upon the true respect of one individual for another, one culture for another, one faith for another one race for another. The measures we the Government is taking to address extremists is not in any way whatever aimed at the decent law-abiding Muslim community of Great Britain. The Government recognises know that this fringe of extremism does not truly represent Islam and that much of the insistence on strong action to weed out extremism is coming most vigorously from Muslim community.

  23.  That is why we are working in partnership with the Muslim community to root out extremism and tackle the causes of radicalisation amongst a minority of our young people. A key part of that is to continue to deliver our longstanding commitment to tackle deprivation and feelings of alienation, which create fertile ground for extremists to prey on.

  24.  Following the London bombings in July, the Home Secretary set up seven working groups to look at issues around integration and tackling extremism. The convenors of the working groups reported back to the Government on 22 September and set out a number of proposals, including a—

    —  National Advisory Council of Imams and Mosques: This would: advise mosques on how to prevent them being used by extremists; on how to reduce their reliance on using ministers of religion from abroad; set standards; and increase the cohesion and leadership skills of imams.

    —  National forum against extremism and Islamaphobia: This independent initiative would: provide a regular forum for a diverse range of members of the British Muslim community to discuss issues relating to tackling Islamophobia and extremism that impacts on the Muslim community; involve both respected scholars and community activists in addition to others; and have access to Government in order to share outcomes and understandings.

    —  Country-wide "roadshow" of influential, populist religious scholars: This would: expound the concept of Islam in the West and condemning extremism.

  25.  The Government welcomed the approach and is continuing the dialogue with Muslim communities and supporting the work that they are undertaking.

18 October 2005

Annex A


  The Bill published on 12 October engages the European Convention on Human Rights with regard to Articles 5 (right to liberty), 6 (right to a fair trial), 7 (necessity for criminal offence to be clear in law), 8 (respect for private and family life), 10 (freedom of expression), 11 (freedom of assembly and association), and Article 1 of the First Protocol (peaceful enjoyment of possessions). One or more of these is engaged by one or more of Clauses 1 (Encouragement of Terrorism), 2 (Dissemination of terrorist publications), 6 (Training for Terrorism), 7 (Powers of forfeiture in respect of offences under section 6), 12 (Trespassing etc on nuclear sites), 21 (Grounds of proscription), 22 (Name changes by proscribed corganisations), 23 (Extension of period of detention by judicial authority), 24 (Grounds for extending detention), 25 and 26 (All premises warrants for searches in terrorist investigations), 27 and Schedule 2 (Search, Seizure and forfeiture of terrorist publications), 28 (Power to search vehicles under Schedule 7 to the Terrorism Act 2000 (c 11), 29 (Extension to internal waters of authorisations to stop and search) and 34 (Applications for extended detention of seized cash). In general, these Clauses are judged to be compatible with the ECHR because they will be clearly defined in primary legislation, in pursuit of a legitimate aim and proportionate.

  Clauses 1, 2, 6 and 21 engage Article 10. Clause 1 makes it an offence to encourage terrorist activity, whether directly or indirectly, including glorifying statements. Clause 2 makes it an offence to disseminate terrorist publications. Clause 6 makes it an offence to give or receive terrorist training, including through sharing information. Clause 21 widens the grounds for proscription to include groups that glorify terrorism. The measures in the Bill are judged compatible with the Article 10 because they would be prescribed by law, pursue a legitimate aim, meet a pressing social need and are proportionate to the aim being pursued.

  Clause 1 engages Article 7 in addition to Article 10 because it could be argued that the description of the offence is insufficiently precise. However, it is judged to be compatible with Article 7 because the European Court recognises the need for criminal law to be flexible and acknowledges that general descriptions can be interpreted and applied by the courts. Clause 12 (trespassing etc on nuclear sites) engages Article 7 but is deemed compatible because civil nuclear sites will be clearly marked and trespassers will be aware they are committing an offence.

  Clauses 21 and 22 (relating to proscription) engage Article 11. Article 11(2) permits limits to be places on freedom of assembly and association if such limits are prescribed by law and are necessary in a democratic society in pursuit of specified aims. The measures pursue the legitimate aim of preventing crime and are deemed to be proportionate. For these reasons, both Clauses are deemed to be compatible with Article 11.

  Clauses 25, 26, 27, 28 and 29 engage Article 8, as does Schedule 2. They all involve powers to search or seize property in relation to terrorist investigations. They are judged to be compatible with Article 8 because they are created in primary legislation, pursue a legitimate aim (the prevention of crime) and are proportionate to the aim pursued. Clause 27 and Schedule 2 also engage Article 1.1 of the First Protocol, as does Article 7, because they involve seizing property, but all are regarded as compatible because they will be precisely defined in primary legislation, in pursuit of a legitimate aim and proportionate.

  Clauses 23 and 24 (detention times) engage Article 5. In the absence of European Court jurisprudence on the length of time for which a person may be detained pending charge, they are judged compatible because individuals detained under these powers will be suspected of having committed an offence, which is a legitimate basis for detention under Article 5(1)(c), and detention will be in accordance with a procedure proscribed by law.

  Clause 34 (closed hearings for cash seizures) engages Article 6 because it involves closed hearings. It is compatible with Article 6 because such hearings will not finally determine the civil rights and obligations of the person affected.

Annex B


  The list of unacceptable behaviours covers any non-UK citizen whether in the UK or abroad who uses any means or medium including—

    —  writing, producing, publishing or distributing material;

    —  public speaking including preaching;

    —  running a website; and

    —  using a position of responsibility such as teacher, community or youth leader;

to express views which:

    —  foment, justify or glorify terrorist violence in furtherance of particular beliefs;

    —  seek to provoke others to terrorist acts;

    —  foment other serious criminal activity or seek to provoke others to serious criminal acts; or

    —  foster hatred which might lead to inter-community violence in the UK.

  This list is indicative, and not exhaustive.

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