Joint Committee On Human Rights

Joint Committee On Human Rights Written Evidence

16. Submission from JUSTICE to the JCHR's inquiry into counter-terrorism policy and human rights

SUMMARY

1. Founded in 1957, JUSTICE is a UK-based human rights and law reform organisation. Its mission is to advance justice, human rights and the rule of law. It is also the British section of the International Commission of Jurists.

2. Following the terrorist attacks in London on 7 July, we recognise the importance of reviewing existing counter-terrorism measures to ensure that public safety and fundamental rights are properly protected. We therefore welcome the Joint Committee's inquiry into the human rights implications of counter-terrorism policy.

3. We have already provided the Committee with our preliminary analysis of the draft Terrorism Bill. The final version of the Bill was published on 12 October and we hope to provide the Committee with our briefing on this version shortly. Above and beyond our concerns with the Bill's provisions, JUSTICE has serious concerns over:

— the government's intention to deport foreign nationals suspected of terrorism on the basis of diplomatic assurances;

— the list of "unacceptable behaviours" (sic) published on 24 August according to which the Home Secretary proposes to exercise his powers of exclusion or deportation against foreign nationals;

— proposed government amendments to the Immigration, Asylum and Nationality Bill for the creation of a streamlined appeal process against deportation orders in national security cases;

— the use of deportation as a counter-terrorism measure generally;

— statements by government ministers concerning the role of the judiciary in interpreting and applying counter-terrorism legislation;

— the continuing failure of the government to bring forth measures to allow intercept evidence to be adduced in criminal proceedings; and

— proposals to establish a judicial role in the investigation of terrorist crimes.

DIPLOMATIC ASSURANCES

4. We set out our concerns over the use of diplomatic assurances in our submission to the Committee's inquiry into the UK government's compliance with the UN Convention Against Torture.[141] To avoid repetition, we would summarise our concerns as follows:

— In our view, the memorandum of understanding between the UK and Jordan—at the time of writing, the only assurances so far—offers no effective protection for the rights of any person who would be returned under its terms. For those returned, the memorandum provides no enforceable rights under international law or the domestic law of either the UK or Jordan. Other than provision for monitoring of those returned by an independent body, there is nothing to prevent breach or denunciation of the terms of the memorandum by either party.

151

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GROUNDS FOR DEPORTATION OR EXCLUSION

5. In our response to the Home Office consultation on 18 August, we noted that the existing immigration powers of the Home Secretary to exclude or deport non-nationals on the grounds that to do so would be "conducive to the public good" are extremely broad.[153] In principle, therefore, a clarification of what constituted non-conducive behaviour ought to have been welcome. However, for the reasons set out below, we regard the finalised list of `unacceptable behaviours' (sic) released by the Home Office on 24 August to be flawed and unnecessary.

6. The list gives such activities as "fomenting, justifying or glorifying terrorist violence in furtherance of particular beliefs", "seeking to provoke others to terrorist acts", "fomenting other serious criminal activity", and "fostering hatred which might to lead to inter-community violence in the UK". It includes doing these things by way of "writing, producing, publishing or distributing material", "public speaking, including preaching", "running a website", and "using a position of responsibility, such as a teacher and community or youth leader".

7. On the one hand, since "foment" and "provoke" are both synonymous with "incite" and "advocate" synonymous with "support", "counsel" and "persuade",[154] most of what is listed refers to conduct that is already covered by existing criminal offences, eg incitement to terrorism,[155] soliciting to murder,[156] or incitement to racial hatred.[157] To this extent, the list is redundant. For it is already well-understood that any foreign national committing (or in the case of those seeking entry, liable to commit) a serious criminal offence is liable to deportation. threaten "public order or the rule of law in the UK".

8. On the other hand, where the list refers to conduct going beyond criminal activity (eg "glorifying" terrorist violence), we are concerned that using such conduct as grounds for deportation or exclusion would amount to a serious interference with the free expression rights of both foreign and UK nationals.

9. The first and most obvious difficulty is with the definition of "terrorism" itself. Although no reasonable person would support the use of political violence in liberal democratic societies governed by the rule of law, there is little agreement on the legality or morality of the use of force by non-state actors in other countries, eg attacks by freedom fighters against military targets in a totalitarian regime. The second difficulty is with the subjective quality and scope of "glorification": a highly nebulous category, one covering the expression of an extremely wide range of views whose connection to acts of terrorism may be fanciful or speculative. Third, the list of "unacceptable" activities makes no distinction concerning the intention of the person expressing the view, ie whether or not they intend to incite an act of terrorism, or whether in fact the views expressed are likely to incite an act of terrorism. Nor does the list seek to distinguish, for instance, between views expressed in the course of academic discussion, in a newspaper article or broadcast, or as part of a novel or play.

10. Although states have a right under international law to control the entry and residence of non-nationals, it is well-established that the decision of the Home Secretary to refuse entry or expel a non-national solely to prevent his expressing opinions within the UK or by way of sanction for the expression of such opinions engages Article 10 ECHR (the right to free expression).[158] Therefore, given the breadth of the definition of "terrorism" in section 1 of the Terrorism Act 2000 and the scope of the grounds (covering expression whether in the UK or abroad), we consider that—were such grounds to be applied consistently by the Home Secretary without regard for the intention of the speaker or the different contexts in which such statements may be made—the use of such grounds to justify exclusion or deportation would almost certainly amount to a serious interference with the free expression rights of both foreign and UK nationals.

11. We recognise that Article 10(2) allows for some measure of lawful restriction in the interests of national security. We further note that the rights of non-nationals to free expression are circumscribed by Article 16 ECHR, which permits the imposition of restrictions on "the political activity of aliens", although we would also draw attention to the view of the Court of Appeal in Farrakhan that Article 16 "appears something of an anachronism half a century after the agreement of the Convention".[159] Even so, in Piermont v France, the European Court of Human Rights made clear that immigration restrictions made for the purpose of limiting free expression on national security grounds may nonetheless breach Article 10 because they are disproportionate interference with the right to free expression.[160] In particular, we note that states cannot seek to exclude the expression of views merely because they are controversial or offensive. As the Strasbourg Court noted in the Piermont case:[161]

The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society".

12. We would also draw the Committee's attention to the 1996 Johannesburg Principles on National Security, Freedom of Expression and Access to Information, principle 6 of which provides materially as follows:[162]

expression may be punished as a threat to national security only if a government can demonstrate that:

intended to incite

likely

direct and immediate connection

13. It is important to make clear that interests engaged by the exclusion or deportation of a person expressing a particular viewpoint are not limited merely to those who agree with that viewpoint. It is also in the interests of those who may strongly disagree with the views being disseminated. This is because the value of free expression protected by Article 10 derives not only from the interests of those who wish to express their views but also from the interests of the general UK public in being free to receive them. Again, this is not limited to the public's interest in receiving views that individual members of the public are likely to agree with or approve of. Rather, it is the broader public interest in receiving the benefits of what John Stuart Mill referred to as `the collision of adverse opinions'.[163] A healthy pluralist democracy requires the free exchange of ideas and opinions in order to flourish and these are not limited to those ideas that a majority thinks "conducive" or "acceptable". The public good of the UK is not sustained, therefore, by deporting or excluding those who express views that are unpopular, false or even wicked. As Chief Justice Hughes observed in the 1937 US Supreme Court case of De Jonge v Oregon:[164]

preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people

STREAMLINED DEPORTATION PROCESS ON NATIONAL SECURITY GROUNDS

14. We note the letter of the Home Secretary of 12 October 2005 attaching draft clauses to be tabled as amendments to the Immigration Asylum and Nationality Bill currently before the House of Commons, including a proposed amendment to add section 97A to the Nationality Immigration and Asylum Act 2002. The draft clause would disapply section 79 of the 2002 Act, which prevents a person from being removed from the UK while their appeal is in progress.

15. Currently, non-suspensive appeals only operate in the asylum and immigration context in relation to applicants from so-called "safe countries"—those to which the Home Office considers it generally safe to return failed asylum seekers (eg EU accession countries). In R (Razgar) v Secretary of State for the Home Department, Mr Justice Richards noted that, for an applicant, a non-suspensive asylum appeal amounted to "plainly a very serious disadvantage as compared with an in-country appeal".[165] Similarly, the Council on Tribunals (the independent statutory body appointed to oversee the operation of administrative tribunals) has given its view that procedures for non-suspensive asylum appeals were "capable of leading to unfairness and injustice".[166] It noted that:

The requirement to conduct appeals from abroad will make it more difficult for adjudicators to assess the evidence of appellants. It will also make it more difficult for appellants to have face-to-face discussions with their advisers and to present their cases satisfactorily. Costs will inevitably be greater. And there could be serious problems with regard to the status and safety of tribunal users in the countries from which they are appealing.

16. The evident obstacles to sustaining an appeal from outside the UK have been reflected in the very low success rate for such out-of-country appeal, at least according to initial figures. According to the Department for Constitutional Affairs:[167]

As of 17 April 2003, provisional [Immigration Appellate Authority] figures show that 56 out-of-country appeals had been lodged with the [Authority]. 42 of those have so far been dismissed and one withdrawn. None has been successful.

On the issue of non-suspensive asylum appeals, the House of Commons Constitutional Affairs Committee expressed concern at "the extremely low success rate of appellants' appeals under that system' and recommended that the Government `investigate the fairness of the non-suspensive appeal system'.[168]

17. Even were the proposed amendment to succeed, it remains unlikely that any deportation order could be enforced in circumstances where it was established that the person faced a real risk of ill-treatment contrary to article 3 ECHR or a "flagrant breach" of their other Convention rights.[169] Indeed, in light of the article 3 concerns surrounding all of the recent deportation cases on national security grounds, the amendment seems a futile gesture. As the Newton Committee noted in 2004, "there have been no successful deportations on national security grounds since 1997".[170] Despite this, the government's proposal to establish a non-suspensive deportation process in national security cases signals a disturbing disregard for the fundamental right of effective access to the courts.

DEPORTATION AS A COUNTER-TERRORISM MEASURE

18. We take as our starting point the view expressed by the Newton Committee in 2004:[171]

Seeking to deport terrorist suspects does not seem to us to be a satisfactory response, given the risk of exporting terrorism.

19. Terrorism is a global problem. There is no better illustration of this than the UK's own involvement in the invasion of Afghanistan in October 2001, in order to "eradicate Osama bin Laden's network of terror and to take action against the Taliban regime that is sponsoring it".[172] This was justified by the fact that the UK had a "direct interest in acting in our own self defence to protect British lives".[173]

20. It therefore seems open to question whether removing or exporting persons who are suspected of involvement in terrorism to other countries where they will be beyond the reach of UK law enforcement authorities is either a rational or an effective measure. Specifically, the effectiveness of deportation as a counter-terrorism measure seems to rely on the assumption that those removed will be subject to detention upon return, thereby disrupting further threat to the UK. However, it is clear from the 2 most recent cases of attempted removal on national security grounds—Ajouaou and `F'—that the assumption of automatic detention is false. Both were detained under Part 4 of the Anti-Terrorism Crime and Security Act 2001 on the basis that they were suspected international terrorists who posed a threat to the national security of the United Kingdom. As the Special Immigration Appeals Commission ("SIAC") noted in respect of `F':[174]

On 12th March 2002, [`F'] decided that he could face detention no longer. He went to France the next day. He was escorted by two police officers and was interviewed on arrival by French security officials . . .. The upshot of the interview was, he says, that he was told he was free to go and would not have any problem in France. He is still in France.

In Ajouaou's case, he returned to Morocco voluntarily in December 2001 and has been there ever since.[175] In his case, SIAC referred to the fact that he made several trips to Morocco in the months preceding his detention in the UK and noted that this "must cast serious and probably fatal doubt on any claim by Ajouaou that it would be in breach of an international Convention to return him to Morocco".[176]

21. Even were it shown that an individual was more likely than not to be detained on their return, it may still be unreasonable to assume that the alleged threat would thereby be contained. An assessment of a 75% likelihood that a person would be detained, for instance, would still be a 1 in 4 chance that the suspect would free to continue their alleged activities abroad: whether to plot attacks against the UK or against UK nationals abroad.

22. It seems to us that if the Home Secretary has reasonable grounds for believing that an individual may be involved in terrorist activity in the UK, the proper course would be to refer that person's case to the CPS to consider prosecution for terrorist offences—or at the very least closely monitor their activities with a view to gathering sufficient evidence to prosecute—rather than to remove them to a country where they may be free to continue their activities.

THE ROLE OF THE JUDICIARY IN COUNTER-TERRORISM CASES

23. Following the attacks of 7 July, we have been concerned at statements made by government ministers concerning the role of the judiciary in counter-terrorism cases. For example, the Prime Minister on 27 July indicated his view that it was the task of judges to ensure that "the laws that I think the country would regard as the minimum necessary are . . . upheld".[177]

24. It is of course open to members of the legislature and the executive to express their views on what is the correct interpretation of the laws that they pass. But the task of interpreting law remains the responsibility of the judiciary. In order to carry out this task, moreover, it is well-understood that the judicial branch must maintain strict independence from the other two branches. It is therefore plainly improper for members of other branches of government to make statements seeking to instruct members of the judiciary as to how they should carry out their constitutional functions. Instead, we would invite the Committee to endorse the view expressed by Lord Bingham in the case of A and others v Secretary of State for the Home Department:[178]

It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true . . . that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic.

25. As Lord Bingham makes clear, it is "particularly inappropriate" to suggest that courts are not entitled to review the necessity and proportionality of legislation where it has been expressly directed to do so under the scheme of the Human Rights Act. On the contrary, "the 1998 Act gives the courts a very specific, wholly democratic, mandate".[179] Therefore—having been charged by Parliament with the task of reviewing the compatibility of government actions and legislation with fundamental rights—it would be an abdication of their constitutional role for the courts to refrain from doing so at the behest of government ministers.

THE USE OF INTERCEPT EVIDENCE

26. In our 1998 report on surveillance powers, JUSTICE argued that the ban on intercept evidence should be lifted:[180]

prima facie

27. In our view, lifting the ban on the use of intercept evidence in criminal proceedings (currently contained in section 17(1) of the Regulation of Investigatory Powers Act 2000 (`RIPA')) would allow for an increase in the number of prosecutions that could be brought for terrorist offences and other serious crimes. As the author of the 1996 review of counter-terrorism legislation,[181] the former Law Lord Lord Lloyd of Berwick, noted during parliamentary debate on RIPA:[182]

We have here a valuable source of evidence to convict criminals. It is especially valuable for convicting terrorist offenders because in cases involving terrorist crime it is very difficult to get any other evidence which can be adduced in court, for reasons with which we are all familiar. We know who the terrorists are, but we exclude the only evidence which has any chance of getting them convicted; and we are the only country in the world to do so.

Lifting the ban on admitting intercept evidence would also bring the UK's position into line with that of virtually all the other legal systems in the world, including Australia, Canada, France, Germany, India, Israel, Italy, New Zealand, the Russian Federation, South Africa and the United States.[183] If the use of intercept evidence is admissible on a regular basis in these other jurisdictions, it seems difficult to conceive of a compelling reason for the government to maintain the current self-imposed ban while at the same time seeking to justify a departure from ordinary principles of criminal law in other areas. In particular, we note that the inadmissibility of intercept evidence is being used by the government in order to justify the extension of the maximum period of pre-charge detention to 90 days.

ESTABLISHING A JUDICIAL ROLE IN THE INVESTIGATION OF TERRORIST OFFENCES

28. We are aware that there is support in some quarters for increased judicial involvement in the investigation of terrorist offences. In this context we note the recommendations of the Newton Committee in 2004 and the more recent support given by Lord Carlile of Berriew QC to increased judicial involvement in the pre-charge detention process in the debate over the Terrorism Bill.[184]

29. The Newton Committee recommended, among other things, the possible use of security-cleared judges to assess evidence on a more inquisitorial basis.[185] This, it was suggested at the time, might be a way to increase the likelihood of criminal prosecutions for terrorist offences in view of the significant evidential hurdles that the Committee had identified. While we agreed with the Newton Committee's call for a more structured system of disclosure of evidence,[186] it was at the time wholly unclear to us how the Committee foresaw the use of security-cleared judges screening evidence[187] might improve on the admissibility of material from the current system. It was particularly unclear what weight the `fair answerable case' assembled by one judge would have in full criminal proceedings before another, particularly if the preliminary hearing were conducted on an inquisitorial rather than adversarial basis. The findings of a judge (particularly one who has seen evidence not disclosed at trial) would likely to carry great weight with a subsequent judge and jury, and would effectively preempt much of what ought properly to be determined in-trial. The unfairness of determining guilt or innocence, be it by a judge or jury, on evidence that is not disclosed to an accused and upon which he or she cannot make comment or challenge should be manifest and is likely to breach the right in Article 6(3)(d) ECHR to `examine or have examined witnesses against him'.

30. We are equally sceptical of the recent suggestions made by Lord Carlile, the Independent Reviewer of Terrorism legislation, in respect of increased judicial involvement in the pre-charge detention process. We agree with his analysis that district judges would not be suited to the task of considering applications for longer periods of detention than the current 2-week maximum:[188]

A more searching system is required to reflect the seriousness of the State holding someone in high-security custody without charge for as long as three months.

However, the specific proposals that Lord Carlile then puts forth to provide a "reassuringly strong system of protection for the detained person" seem to us to fall far short of that goal. First, he proposes "the introduction of one of a small group of security-cleared, designated senior circuit judges as examining judge".[189] We note, however, that those civil law jurisdictions such as France that employ examining magistrates and inquisitorial methods provide far more specific and intensive training for the task of supervising (and, indeed, directing) criminal investigations than does the common law system. Lord Carlile makes reference to his proposals comparing favourably to those available in the United States (the only common law jurisdiction he cites as a comparison)[190] and yet we are unaware of any comparable provision for pre-charge detention in US state or federal law.

31. Secondly, Lord Carlile proposes the introduction of a "security-cleared special advocate . . . to make representations on the interests of the detained persons and to advise the judge".[191] However, Lord Carlile nowhere explains how such a system (hitherto used only in civil proceedings and in public interest immunity applications in criminal proceedings) would be compatible with the guarantees of Articles 5(4), which include the right to full disclosure of adverse material. The idea that a suspect could be detained for what Lord Carlile acknowledges to be lengthy periods of time without knowing the full case against him or her seems to us to be antithetical to basic notions of fairness. As Lord Steyn noted in his dissenting judgment in Roberts v Parole Board:[192]

It is not to the point to say that the special advocate procedure is "better than nothing". Taken as a whole, the procedure completely lacks the essential characteristics of a fair hearing. It is important not to pussyfoot about such a fundamental matter: the special advocate procedure undermines the very essence of elementary justice. It involves a phantom hearing only.

32. Thirdly and more generally, little thought appears to have been given for the longer-term consequences of seeking to introduce inquisitorial methods of justice into the common law system of adversarial justice. It is sufficient to note that much of what is originally presented as wholly exceptional, once introduced, becomes part of the general fabric of the law: the process variously known as "legislative creep" or "function creep". For the arguments from complexity that are made in the context of terrorism offences are equally applicable to serious organised crime and serious fraud. From there, it would not be too difficult for a government to subsequently argue that—since the process is already in place for serious criminal offences—consistency demands that the same procedures should be applied to ordinary criminal prosecutions as well. It is perhaps sufficient to notice how the stop and search powers of section 44 of the Terrorism Act 2000, originally introduced to fight terrorism, appear to have become part of the general array of police powers.[193]

33. We continue to support the Newton Committee's call for a more structured system of disclosure of evidence. There is also perhaps a greater role for judges to play in facilitating increased use of sensitive intelligence material in criminal proceedings. However, we strongly oppose any extension of pre-charge detention beyond the current maximum of 2 weeks and we harbour serious doubts whether any suitable procedures of "judicial control" could be devised under our existing adversarial system of justice that would be sufficient to safeguard fundamental rights. To compare the role of a judge from a common law system with that of an examining magistrate in a civil law jurisdiction fails to compare like with like. We therefore caution strongly against importing features from other systems of law without at least understanding the different distribution of checks and balances in those systems, not to mention the careful equilibrium of our own.

17 October 2005

141 See joint submission of Liberty and JUSTICE, September 2005, paras 5-33. Back

142 CETS no. 196, concluded 16 May 2005. Back

143 See eg Chahal v United Kingdom (1996) 23 EHRR 413. Back

144 Article 3(2) UNCAT. Back

145 See eg Agiza v Sweden CAT/C/34/D/233/2003, 20 May 2005, para 13.4. Back

146 Ibid. Back

147 UN Commission on Human Rights, Report of the Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, para 56. Back

148 See eg Professor Theo Van Boven, Report of the UN Special Rapporteur on Torture to the UN General Assembly, 23 August 2004, para 37, "the principle of non-refoulement must be strictly observed and diplomatic assurances should not be resorted to" ; Professor Manfred Nowak, BBC Radio 4, 4 March 2005. Back

149 Statement of Council of Europe Commissioner for Human Rights Alvaro Gil-Robles, July 2004. Back

150 15th General Report, CPT/Inf (2005) 17. Back

151 Jordan acceded to the Convention on 13 November 1991, Egypt acceded on 25 June 1986, and Algeria ratified the Convention on 12 September 1989. Back