10. Futher submission from British
Irish Rights Watch to the JCHR's inquiry into counter-terrorism
policy and human rights
INTRODUCTION
British Irish RIGHTS
WATCH is an independent non-governmental
organisation that monitors the human rights dimension of the conflict
and the peace process in Northern Ireland. Our services are available
free of charge to anyone whose human rights have been affected
by the conflict, regardless of religious, political or community
affiliations, and we take no position on the eventual constitutional
outcome of the peace process.
We welcome this opportunity to make a submission
to the Joint Committee on Human Rights concerning counter-terrorism
policy and human rights. We have only commented on the human rights
implications of developments in counter-terrorism policy in the
UK which fall directly under the remit of BIRW.
This submission comments upon:
— Unacceptable behaviour;
— Deportation, diplomacy and article
3 of the European Convention on Human Rights;
— Establishing a judicial role in the
investigation of terrorist crimes;
— Reconciling human rights and national
security;
UNACCEPTABLE BEHAVIOUR;
British Irish RIGHTS
WATCH is concerned by the list
of unacceptable behaviours which may be used by the Home Secretary
as grounds for deporting non-UK nationals. These measures, like
those outlined in the draft Terrorism Bill, are very wide, and
hence open to broad interpretation. Subsequently, there are limits
on the safeguards which could be put in place to prevent the misinterpretation
of such behaviour. Would a Sinn Feïn MP, who said he did
not regret the bombing of the Conservative conference in Brighton
in 1984, be guilty of glorifying terrorism?[64]
British Irish RIGHTS
WATCH does not believe that these
measures are a productive or efficient method of preventing terrorism.
By setting boundaries on freedom of expression, the government
appears to be legislating on the definition of legitimate and
illegitimate speech. Such judgements are essentially objective.
For instance, some view the IRA as freedom fighters, who used
their limited means to take on the British state to gain a united
Ireland. For others, the IRA are terrorists, whose use of violence
and targeting of civilians debase any legitimate political claims.
Freedom of expression is a cornerstone of UK
democracy. The discussion, analysis and debate of a wide range
of views contributes to the development of democracy and consensus
on key issues. If this debate is fenced off, then extremist views
have no counter-weight, consensus is lost, and democracy severely
undermined. One motivation of the July 7 suicide bombers was a
sense of alienation and isolation from the UK mainstream. Rather
than pushing such individuals further toward the fringes, the
Government should be seeking to engage individuals and communities
of all political, religious, economic and social persuasions in
the democratic process.
By proscribing certain individuals and sources
of information, the Government runs the risk of "glamorising"
the very elements of society it is trying to contain. The cachet
of extremism increases as it is pushed further towards the margins;
where those punished for their views take on the role of "martyrs
for the cause".
BIRW is concerned by Charles Clarke's statement:
"A database of individuals around the world who have demonstrated
these unacceptable behaviours will be developed and will be available
to entry clearance and immigration officers."[65]
As noted later in this submission, the standards of democracy,
freedom of speech and treatment of prisoners vary across the world.
As a result, individuals may be placed on the database in their
home countries, for behaviour which in the UK would not be deemed
unacceptable. This may further impact then upon an individual's
ability to claim refugee status or seek asylum should they be
forced to flee their home country. This database amounts to legislating
outside our jurisdiction; where the "fight against terror"
is enabling the UK government to influence the internal politics
of other states, in ways which may offend against the right to
self-determination.
http://www.homeoffice.gov.uk/about-us/news/news-tackling-terrorism?version=1
BIRW urge the Joint Committee to encourage the
Government to re-think the grounds for deportation, and scrap
the list of "unacceptable behaviours".
DEPORTATION, DIPLOMACY
AND ARTICLE
3 OF THE
ECHR
British Irish RIGHTS
WATCH are strongly opposed to
the use of torture, and have actively campaigned for its abolition.
We are hence alarmed by the proposed new powers for the deportation
of non-UK nationals.
British Irish RIGHTS
WATCH is seriously concerned by
the "Memorandum of Understanding" the Government has
signed with Jordan, to regulate the treatment of individuals deported
from the UK to Jordan. We do not believe that such agreements
with Jordan, nor any other country on the Government's list, are
a suitable measure for protecting the rights of individuals from
torture.[66]
Although Jordan is a signatory to the UN Convention against Torture,
consistent allegations of the practice of torture and other cruel,
inhuman or degrading treatment or punishment have been made by
both individuals and human rights groups—in particular,
to elicit information from those suspected of belonging to extremist
Islamic organisations or prisoners detained on grounds of national
security.[67]
For instance, Jordan is known to use sleep deprivation and suspension,
i.e. hanging from the limbs, among other techniques.[68]
British Irish RIGHTS
WATCH believe that diplomatic
assurances in themselves indicate a full awareness that torture
in detention is at least a possibility and at worst, a reality.
The practice of deporting individuals, who have sought asylum
in the UK, to countries which practice torture is surely akin
to the practice of torture by the UK Government itself.
British Irish RIGHTS
WATCH also believe that diplomatic
assurances protect only the few who are subjected to extradition
under these agreements. They do not seek to improve the general
conditions of detention in such countries, nor to aid in the end
of torture on a local or national level. This indicates the UK's
disregard for both human rights generally, and international obligations
to proscribe torture as a service to humanity—"obligation
erga omnes".[69]
Cited in The International Law of Torture: From
Universal Proscription to Effective Application and Enforcement.
Harvard Human Rights Journal. Spring 2001. Vol 14.
British Irish RIGHTS
WATCH believe that the deportation
of non-UK nationals, suspected of terrorism, on the basis of diplomatic
assurances, directly conflicts with Article 3 of the European
Convention on Human Rights (no-one shall be subjected to torture).
If the UK is to adopt practices which conflict with Article 3,
which is, of course, non-derogable, it will be tantamount to a
back-door, illegal derogation.
British Irish RIGHTS
WATCH wholeheartedly agree with
the UN Special Rapportuer on Torture who criticised the UK's attempts
to ignore its human rights obligations. In particular, Manfred
Nowak has commented on how plans such as these reflect a wider
tendency across Europe to avoid international obligations, and
that diplomatic assurances should not be used as a means to avoid
these obligations."[70]
BIRW also agrees with the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT),
which states:
http://www.unhchr.ch/huricane/huricane.nsf/view01/9A54333D23E8CB81C1257065007323C7?opendocument
"It has been advanced with some cogency
that even assuming those authorities do exercise effective control
over the agencies that might take the person concerned into their
custody . . . ... there can be no guarantee that assurances given
will be respected in practice. If these countries fail to respect
their obligations under international human rights treaties, ratified
by them, . . . why should one be confident that they will respect
assurances given on a bilateral basis in a particular case?"[71]
British Irish RIGHTS
WATCH draw the Joint Committee's
attention to the recent adoption of the Twenty Guidelines on
Forced Return by the Committee of Ministers. The guidelines
attempt to find a balance between the protection of individuals
and the rights of states to control the entry and residence of
non-state nationals in their country. Guideline 2 for instance
states that individuals subject to a removal order should not
face the risk of death, torture or inhuman or degrading treatment
or punishment, be that a risk from non-state actors or the state
authorities themselves.[72]
The guidelines go onto address the remedy available against a
removal order, and state:
"In the removal order, or in the process
leading to the removal order, the subject of the removal order
shall be afforded an effective remedy before a competent authority
or body composed of members who are impartial and who enjoy safeguards
of independence. The competent authority or body shall have the
power to review the removal order, including the possibility of
temporarily suspending its execution."[73]
While BIRW acknowledge that the Council of Ministers
have only issued guidelines and not legally binding instructions,
it is not unreasonable to suggest that the UK Government should
try and follow such guidelines as closely as possible. We agree
with the CPT when it states: "It should also be emphasised
that prior to return, any deportation procedure involving diplomatic
assurances must be open to challenge before an independent authority,
and any such challenge must have a suspensive effect . . . ."[74]
This appears particularly pertinent when considering the proposed
legislation. We draw the Joint Committee's attention to the following
: where the "Home Secretary is personally applying his power
to exclude individuals from the UK, there is no statutory right
of appeal [our emphasis] . . .".[75]
There is a right of appeal however, when an individual is being
deported by other Home Office Ministers, or the principles are
applied by Immigration/Entry Clearance officers.[76]
British Irish RIGHTS WATCH
believe that the right to appeal should be available regardless
of who made the decision to deport. In high profile cases, political
expediency has the power to undermine the human rights of individuals.[77]
British Irish RIGHTS
WATCH urge the Joint Committee
to encourage the Government to consider its obligations under
the European Convention on Human Rights and other international
human rights instrument, and not to return individuals to states
where they may face death, torture, or cruel and inhuman treatment
or punishment.
EXCLUSION
The proposed exclusion orders again ignore the
negative experiences of counter-terrorism measures in Northern
Ireland; where exclusion orders banned individuals from travelling
to Great Britain from Northern Ireland. Such orders amounted to
a form of internal exile, where individuals were denied their
right to travel within the territory from which their citizenship
existed. Exclusion orders not only affected those on whom they
were served. Family ties and friendships were disrupted; holiday
and other travel were prevented when it meant travelling through
Great Britain (as is necessary for many trips from Northern Ireland);
children's schooling and job opportunities for all members of
the family were adversely affected. There was no right of appeal
against an exclusion order, and such orders breached not only
Article 12 of the Universal Declaration of Human Rights (no one
shall be subjected to arbitrary interference with his privacy,
family, home or correspondence....), but the Treaty of Rome, which
allows for freedom of movement for European citizens to seek work,
and the rules of natural justice.
BIRW, drawing on its experience of exclusion
orders in Northern Ireland, urges the Joint Committee to ask the
government not to utilise such measures in the UK.
PRE-TRIAL
COURTS
British Irish RIGHTS
WATCH has previously addressed
the issue of pre-trial courts in a submission to the Joint Committee
on the Convention on Torture. As a result, an abridged version
of the relevant section is set out below.
Changes to court procedures
The Prime Minister Blair's recently announced
pre-trial process for those suspected of terrorist activity is
a cause of great concern for British Irish RIGHTS
WATCH.[78]
The new process would allow "secret" evidence to be
examined before a juryless court to see if it justified the continued
detention of an individual. The proposed courts are similar to
Diplock courts used in Northern Ireland. Introduced in 1973 to
ostensibly end intimidation of jurors by paramilitaries, Diplock
courts sat without jurors and the standard for the admissibility
of confession evidence was lower. The absence of a jury in Diplock
courts had several key impacts upon due process and the right
to a fair trial. Firstly, the judge became the tryer of both fact
and law. The rules allowing the judge to draw adverse inferences
from a suspect's silence under police questioning or failure to
testify in his own defence make further inroads into the judge's
ability to remain an impartial arbiter. Secondly, the lack of
a jury had a deadening effect on the defence; barristers often
tailored their arguments to the judge in question, rather than
to the wider case. The impact was that on appeal, it was difficult
for judges to explore points which had been previously omitted.
The lower standard of admissibility for confession evidence saw
the judge operating as judge and jury became particularly problematic.
The result was a high conviction rate yet numerous claims of miscarriages
of justice. The lower standard of evidence and the absence of
a jury directly contravenes the right to a fair trial, both of
which are proposed with secret courts.
The new courts will consider "secret evidence",
the nature of which will not be made available to the defendant.
Media reports indicate that some of this evidence may include
telephone taps (though this has yet to be officially confirmed).[79]
BIRW is concerned attempts to introduce such courts into the UK
under emergency legislation are illegitimate and represent a gross
undermining of human rights. BIRW is also disappointed that while
Diplock Courts are being abolished in Northern Ireland under the
repeal of emergency laws, the proposed new courts will be introduced
in Northern Ireland.[80]
British Irish RIGHTS
WATCH call on the Committee to
protect the right to a fair trial, a right which would be denied
under this proposed legislation.
SPECIAL JUDGES
British Irish RIGHTS
WATCH is confused by the use of
the term `special judges' as cited in Tony Blair's speech of 5
August 2005. We ask the Committee to seek clarity from the Government
on what is meant by this term, and what the implications of the
introduction of "special judges" will be on the judiciary.
In Northern Ireland, we saw the development
of a cartel of special judges—there are only 11 judges in
the Diplock Court system. As a result, judges become "case-hardened";
and lawyers tailored their arguments to fit their perceptions
of the individual judges' personalities and even prejudices. The
absence of a jury can also directly increase the chances of the
right to a fair trial being undermined.
USE OF
INTERCEPT EVIDENCE
Given that terrorists can avail themselves of
the benefits of modern technology, on the face of it there is
an argument for giving the prosecution equality of arms. However,
careful attention needs to be paid to the human rights implications
of covert surveillance, in particular its impact on the privilege
against self-incrimination, which forms an important element of
the right to a fair trial. Care also needs to be exercised in
targeting suspects for such surveillance, because of its impact
on the right to privacy, not only of the suspects but of third
parties.
If intercepted communications are to be allowed
in evidence, then so too must information about how such evidence
was obtained, in order that the defence may challenge evidence
that was gathered improperly. The use of intercepted material
which is shrouded in secrecy because of an alleged need to protect
sources and methods is not acceptable.
The use of telephone intercepts should be the
subject of keen safeguards; with a rigorous system for approval.
BIRW believe that such intercepts should be used for the minimum
amount of time necessary and therefore be subject to regular review.
The aim should be to remove them at the earliest opportunity.
A system which enables individuals to find out if their telephones
or other means of communication, such as email, are tapped, and
to subsequently challenge such surveillance, should be put in
place and must be robust and transparent.
BIRW also has concerns regarding the use of
intercept evidence which could potentially compromise a suspect's
right to confidential access to a lawyer. The use of evidence
gained by listening to such conversations would be disproportionately
advantageous to the prosecution, and again undermine the right
to a fair trial. In our view, intercepted communications between
suspects and their lawyers should never be admissible as evidence.
BIRW asks the Joint Committee to seek assurances
from the Government that should intercept evidence be admissible
in court, then a robust and transparent system of monitoring and
evaluation will be created to oversee its use.
EXTENDED DETENTION
British Irish RIGHTS
WATCH is opposed to the extension
of the time an individual can be held without charge. We already
view the current legislation with regard to terrorist suspects
as being on the boundary of human rights compliant policing.[81]
Detention of three months without charge can have serious psychological
and social implications for both the detainee and their family.
The fact that detainees may not be aware of the charges or evidence
against them, may have similar effects. These factors also undermine
the fundamental principles of the British legal system such as
the presumption of innocence, and the right to a fair trial. The
justification of such an extension is to enable the police to
gather more evidence—British Irish RIGHTS
WATCH believe that such evidence
should be in place before arrest so as to prevent protracted detention
or the holding of innocent individuals. We would point to the
existing mechanism of suspects being charged and then placed on
remand, which, until this point, have provided an adequate method
of balancing an individual's human rights with those of the community.
The policy of internment, used in Northern Ireland
during the 1970s, had many of the effects noted above. Internment
was introduced by the last Prime Minister of Northern Ireland,
Brian Faulkner to combat the IRA, and involved the mass arrest
of IRA suspects. However, those in charge of implementing the
policy relied on out-of date intelligence and a proportion of
those arrested and detained were completely innocent. Allegations
of torture, cruel and degrading treatment began to emerge, and
contributed to an upsurge in violence in Northern Ireland. More
significantly, individuals who did actually pose a threat to the
security of the UK had "slipped through the net" before
the raids took place. Internment ultimately failed because it
did not respect the civil liberties and human rights of one section
of society. By directly and solely targeting Catholics/nationalists/republicans,
it sent a clear message about the value of the human rights of
that community. This was combined with the extent to which the
UK government was prepared to go to elicit information (use of
torture), and an inability to admit at an early stage, that internment
was an unsuccessful policy.
BIRW encourages the Joint Committee to oppose
prolonged detention without trial.
ESTABLISHING A
JUDICIAL ROLE
IN THE
INVESTIGATION OF
TERRORIST CRIMES
BIRW is concerned by the establishment of an
inquisitorial system, which would enable judges to play a role
in the investigation of terrorist crimes. The appendage of such
a role onto an adversarial common law system, such as exists in
the UK, would be problematic. One cannot view this proposal in
isolation from the other aspects of the legislative package, for
instance, special courts and the use of intercept evidence.
Undoubtedly terrorism is a very serious crime.
However, there is no justification for the removal or restriction
of the due process rights of individuals who have been accused
of such offences; especially as the sentences for terrorist offences
are so severe. BIRW believe it is imperative that terrorist suspects
are accorded the same due process rights, especially with regard
to access to legal advice and facilities for preparing their defence,
as any other criminal suspect.
BIRW asks the Joint Committee to remind the
Government of the importance of equal due process rights for all
suspects.
RECONCILING HUMAN
RIGHTS AND
NATIONAL SECURITY
As this submission, and the our previous submission
regarding the Terrorism Bill, have indicated BIRW remains concerned
that the tension between human rights and national security is
seen to be at breaking point. The UK is not an autocratic state.
However, increasingly harsh legislation is detaching us from the
values to which we subscribe—freedom of speech, tolerance,
democracy and political moderation. By subsuming our own social
and political values, in the name of national security, we allow
the terrorists to win.
Repressive laws do not prevent terrorism or
eradicate it. If we treat terrorists differently from other criminals
because of the motive for their crimes, we only create miscarriages
of justice and martyrs to the cause.
Terrorism is not usually mindless. Attacks may
be unannounced; their consequences may be unspeakable; they may
be morally indefensible; we may not understand them; and we may
disagree with them profoundly; but they are usually done for a
reason, however misguided. Very often that reason has its foundations
in ignorance, poverty, or injustice, or some combination of the
three. Those who turn to terrorism may be fanatics or bigots,
but it is important for the targets of terrorism to be objective
and honest when addressing the inevitable cry of the victims,
"Why us?"
Although governments often seek to portray themselves
as neutral in combating terrorism, they are never so in fact.
Governments' role is to defend the state and maintain the status
quo—this is far from being a neutral role. In our experience
in Northern Ireland, successive governments and the agents for
whose actions they are responsible (principally the civil service,
the army, the police and the intelligence service) have not only
pursued their own agenda, but in some cases have actively colluded
with paramilitaries in that pursuit. Far from hastening the end
of the conflict, such policies have deepened and prolonged it.
Many lives have been lost, which could and should have been saved.
BIRW's experience of Northern Ireland suggests
that only three mechanisms can effectively combat terrorism. The
first is preventative, and therefore preferable: the collection
of accurate intelligence and the proper use of that intelligence
to prevent attacks. The second is deterrent: the effective detection
of crime. The third is the most valuable of all: political resolution.
Potentially repressive legislation, and powers and measures such
as those proposed are not, in our view, likely to succeed in combating
terrorism.
BIRW urges the Joint Committee to encourage
the Government to maintain the balance between national security
and human rights protection.
October 2005
64 Conor Murphy, MP for Newry and Armagh, told a
Conservative Party fringe meeting that he did not regret the bombing
of the 1984 conference in which five people died, just that people
had been driven to violence. I don't regret bombing, says Sinn
Fein MP. Daily Telegraph. 10 October 2005 and Murphy's
comments deserve our contempt. Newsletter. 11 October 2005. Back
65
Tackling terrorism-behaviours unacceptable in the UK. Press
release, Home Office. 24 August 2005. Back
66
The Government's list of countries, with whom they are negotiating
similar Agreements, include Algeria, Lebanon and Morocco. UK
Detention Plan Amounts to Punishment Without Trial. 16 September
2005. Human Rights Watch. www.hrw.org/english/docs/2005/09/16/uk11751.htm Back
67
See Human Rights Watch, Amnesty International and Arab Organisation
for Human Rights. Back
68
Examples of Torture or other Cruel, Inhuman, or Degrading
Treatment Condemned in the U.S. State Department's 2003 Country
Reports on Human Rights Practices. Human Rights Watch.http://www.hrw.org/campaigns/torture/methods/stress
duress.htm Back
69
The International Court of Justice recognized, "[t]he prohibition
in international law of acts, such as those alleged in this case
(on torture), is an obligation erga omnes which all states have
a legal interest in ensuring is implemented." Back
70
Diplomatic Assurances not an adequate safeguard for deportees,
UN Special Rapportuer against Torture warns. Press release.
23.08.05. Back
71
15th General Report on CPT's Activities (2004-05). European
Committee on the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment. 22.09.05 www.cpt.coe p. 14 Back
72
Paraphrased from. Twenty Guidelines on forced return.
Council of Ministers. May 2005. www.coe.int p. 12. Back
73
Twenty Guidelines on forced return. Council of Ministers.
May 2005. www.coe.int p.20 Back
74
15th General Report on CPT's Activities (2004-05). European
Committee on the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment. 22.09.05 www.cpt.coe p. 14 Back
75
Exclusion or deportation from the UK on non-conducive grounds:
Consultation document. 24.08.05. www.number-10.gov.uk Back
76
Exclusion or deportation from the UK on non-conducive grounds:
Consultation document. 24.08.05. www.number-10.gov.uk Back
77
Omar Mohammed Bakri has dual Syrian and Lebanese nationality,
but has indefinite leave to remain in the UK after gaining political
asylum in the 1980s. He is a controversial, radical Islamic preacher,
who came to prominence through his work with an extremist Islamic
group, al-Muhajiroun, and his failure to condemn the bombings
in London on 7 July. The Government exluded him from returning
to the UK from Lebanon, where he was on vacation, on the grounds
of his alleged incitement and glorification of terrorism. Cleric
Bakri barred from Britain and "No tears shed"
on Bakri UK ban. 12.08.05. BBC News. Back
78
Mr Blair announced on 5 August 2005 that the Government is investigating
the introduction of new court procedures including a pre-trial
process. Mr Blair also announced a desire to extend the detention
time of suspects. These measures will only apply to those suspected
of terrorist activities/involvement/incitement. Prime Minister's
Press Conference. 05.08.05. www.number-10.gov.uk Back
79
Secret Terror courts considered. BBC News 09 August 2005 Back
80
Ulster to get secret courts. Belfast Telegraph. 10 August
2005 Back
81
Terrorist suspects can be held for up to seven days without
charge in contrast to 96 hours or four days for ordinary criminal
suspects. Back
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