Joint Committee On Human Rights Written Evidence

10.  Futher submission from British Irish Rights Watch to the JCHR's inquiry into counter-terrorism policy and human rights


  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;

    —  Exclusion;

    —  Pre-trail courts;

    —  Special judges;

    —  Intercept evidence;

    —  Extended detention;

    —  Establishing a judicial role in the investigation of terrorist crimes;

    —  Reconciling human rights and national security;


  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.

  BIRW urge the Joint Committee to encourage the Government to re-think the grounds for deportation, and scrap the list of "unacceptable behaviours".


  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:

    "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.


  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.


  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.


  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.


  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.


  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.


  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.


  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. 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. 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. p. 12. Back

73   Twenty Guidelines on forced return. Council of Ministers. May 2005. 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. Back

76   Exclusion or deportation from the UK on non-conducive grounds: Consultation document. 24.08.05. 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. 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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