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.
(I) STRENGTHENING
THE LAW
TO ENABLE
MORE PROSECUTIONS
TO BE
TAKEN AGAINST
THOSE ENGAGED
IN TERRORISM
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.
(II) IMPROVING
THE JUDICIAL
PROCESSES IN
CASES INVOLVING
TERRORISM
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.
(III) PREVENTING
EXTREMISTS FROM
FOMENTING TERRORISM
IN THE
UK BY EXCLUDING
OR DEPORTING
THEM
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.
(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
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
SUMMARY OF
THE ECHR COMPLIANCE
OF TERRORISM
BILL MEASURES
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
LIST OF
UNACCEPTABLE BEHAVIOURS
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;
— 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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