Joint Committee On Human Rights

Joint Committee On Human Rights Written Evidence

23. Joint submission from "Protect our rights" comprising Birnberg Peirce & Co, CAMPACC, Christian Khan solicitors, East London Communities against State Terror, Hizb-ut-Tahrir, Islamic Forum of Europe, Islamic Human Rights Commission, Liberty, National Civil Rights Movement, Muslim Association of Britain, Muslim Council of Britain, Newham Monitoring Project, Statewatch, Stop Political Terror, The 1990 Trust, The Monitoring Project to the JCHR's inquiry into counter-terrorism policy and human rights

SUMMARY

The UK's counter-terrorism legislation is among the most developed in the world. There is no evidence that the wide-ranging powers, already in place, are in anyway inadequate to investigate and prosecute those involved in any way in the incidents that have recently occurred. Daily reporting of the progress of police investigations suggest that conventional police investigations are piecing together an extensive breadth and range of evidence. There are no suggestions by the police that they have been thwarted in any relevant investigation by any lack of legal powers.

The greatest threat to our security comes not from an inability to counter terrorism but the government's refusal to conduct an honest debate on the causes of the attacks against London in July 2005. In place of that debate, Tony Blair has turned the spotlight on Britain's Muslim communities. British tolerance has fertilised terrorism, he suggests. Multiculturalism and human rights are to be the scapegoats.

In the context of an ill advised and counter productive "war on terror", these proposals pave the way for an equally misguided "war on Islamic extremism". There can be no doubt that the measures they envisage—restrictions on free speech, freedom of association and freedom of conscience—coupled with the simplistic and inflammatory portrayal of Islam as a "dangerous" religion, will further alienate and marginalise the very communities in which the government professes to be combating radicalisation.

The Prime Minister has suggested that Parliament will be recalled to consider new legislation, possibly at short notice in September. There is a grave danger that past mistakes will be repeated in hastily drafted legislation that fundamentally restricts the liberties that define us as a free and democratic society.

BRIEFING

This briefing examines together the Home Secretary's proposals for three new offences (18 July),[228] the Association of Chief Police Officers' demand for more powers (21 July),[229] the Prime Minister's 12 point statement (5 August)[230] and the Home Office consultation document on deportation and exclusion (5 August).[231] This kind of government by press release is not conducive to much-needed debate and does not amount to meaningful consultation. To avoid the growing suspicion about a possible September "stitch-up" the government should make its full intentions clear immediately so all in civil society can have their say.

1. "Acts preparatory to terrorism", "terrorist training" and "indirect incitement"

On 18 July 2005 the Home Secretary announced his intention to introduce three new terrorism offences when parliament reconvenes. Parliament was dissolved two days later with the three main parties having reached a "consensus" on new laws to prosecute "acts preparatory to terrorism", "terrorist training" and "indirect incitement to terrorism".

The reason for creating new offences of "acts preparatory to terrorism" is still quite unclear. Under the Terrorism Act 2000, the "possession of an article in circumstances which give rise to a reasonable suspicion that [it] is for a purpose connected with the commission, preparation or instigation of an act of terrorism" already carries a 10 year jail sentence (s 57). It is an equally serious offence under the Terrorism Act to "collect information" or "possess documents" that could be used for terrorism (s 58). The Home Secretary has stated that "the new offence will lead to the capture of those planning serious of acts of terrorism", implying surveillance powers rather than additions to an already broad offence. It is also possible that visiting a "jihadist" website could also be in some way criminalised, notwithstanding the fact that visiting a website is obviously completely different to planning "a serious of act of terrorism". ACPO has also called for a new offence of "inappropriate internet usage", a concept more readily associated with regimes like China and Iran.

A "new offence" of "terrorist training" can similarly add little to the existing Terrorism Act under which those who give or receive training in the making or use of weapons or explosives, or recruit persons for this purpose, are also liable to 10 years in prison (s54).

Things are clearer as far as "indirect incitement to terrorism" is concerned since the Home Secretary has announced that this will allow the UK to implement the Council of Europe convention on the prevention of terrorism agreed in April 2005. Article 5 of that Convention defines "public provocation" as:

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This vague concept, based on the Spanish law of "apologia de terrorismo", based on the principle of criminalising people for what they say rather than what they do, is at the heart of a number of the current proposals.

2. "Condoning, glorifying or justifying terrorism"

On 5 August the prime minister suggested that the new offence of "indirect incitement" will now cover "condoning", "glorifying" or "justifying" terrorism (point 2 of the statement), broadening its potential scope significantly. The obvious concern is that people who express support for armed resistance to the occupation of Palestine or Iraq, for example—resistance that many people around the world feel is legitimate—could be caught-up in the new laws. There is an extremely thin line between empathising with the Palestinian cause, for example, and justifying and condoning the actions of suicide bombers, a point highlighted by Cherie Blair during a speech in Jordan in 2004 for which she was publicly accused by Israel of "condoning" such bombings. It is not a line that can be drawn with any legal certainty.

Condoning, glorifying or justifying terrorism will apparently be grounds for excluding and deporting people (point 1), closing down mosques (point 11) and the "more extensive" use of control orders (point 7). It is important to note that the only persons that have been subject to control orders since the legislation was enacted in March 2005 are the 11 foreign nationals that were interned in Belmarsh and elsewhere, rather belying the suggestion that Britain is teeming with known terrorists or other men so dangerous that these sanctions are necessary.

The talk of "closing extremist mosques" suggests the government cannot differentiate between individual responsibility and blanket criminalisation. In a recent trial in which a number of defendants had an association with the Finsbury Park mosque, the prosecution itself emphasised that thousands of law-abiding persons worshipped at that mosque weekly. They did not and could not criminalise the mosque in its entirety.

3. The clampdown on "extremism" and "unacceptable behaviours"

Tony Blair's 12 point plan is aimed at those he describes as "extremists". The fundamental problem is that "extremist" is not defined or recognised in UK law. So what is meant by "extremist"? In a speech to the Labour Party national conference in July Blair outlined what "barbaric ideas":

"They demand the elimination of Israel; the withdrawal of all Westerners from Muslim countries, irrespective of the wishes of people and government; the establishment of effectively Taleban states and Sharia law in the Arab world en route to one caliphate of all Muslim nations. "

This is dangerously simplistic and serves only to equate terms such as "Shariah" and "caliphate" with "terrorism" in the minds of an ignorant public. Shariah, an Arabic term meaning "the path", has different guises according to different Islamic schools of thought. The establishment of Shariah in Muslim countries, the aspiration to one Caliphate of Muslim States is as legitimate as any other political ideology as long as it evolves from the will of the people.

To the prime minister's interpretation of "extremism" can be added the Home Office's list of "unacceptable behaviours" (which applies to "any non-UK citizen whether in the UK or abroad"): "writing, producing, publishing or distributing material", "public speaking including preaching", "running a website" or "using a position of responsibility such as a teacher, community or youth leader" to express views which the Government considers:

— Forment terrorism or seek to provoke others to terrorist acts.

— Justify or glorify terrorism.

— Forment other serious criminal activity or seek to provoke others to criminal acts.

— Foster hatred which may lead to intercommunity violence in the UK.

— Advocate violence in furtherance of political beliefs.

The Foreign Office is working on a database of foreign "extremists" and the Home Office a "list" of "specific extremist websites, bookshops, centres, networks and particular organisations of concern" in the UK". It is entirely predictable that the resulting "clampdown" will be perceived as censorship of those who might criticise British foreign policy or call for political unity among Muslims. This is disingenuous to say the least, carrying the dual risk of "radicalisation" and driving the "extremists" further underground, to use the government terminology.

4. Deportation and exclusion

The Home Secretary has long enjoyed wide-ranging powers to exclude and deport people from Britain that he deems "not conducive to the public good" and, under a law drawn-up ingeniously to cover a single individual, can also strip British nationals of citizenship if they have a second nationality (the "abu Qatada law", which notably failed to lead to the deportation of Mr. abu Qatada). The "problem" (as the government sees it) is Article 3 of the ECHR (as incorporated into the UK Human Rights Act) which prevents the government removing people to third countries in which they face a risk of torture or inhuman or degrading treatment (a proviso which has been upheld by the UK courts time-and-time again). The government's solution is a series of "memoranda of understanding" (MoUs) with third countries that persons being returned there will not be mistreated. The first such "understanding" was reached with Jordan last week, though it is not at all clear from the text that the MoU even expressly prohibits the death penalty. "Not worth the paper it's printed on" said Amnesty International.

On 11 August the first 10 "extremists" were seized pending deportation. These were the very same individuals who had been interned and then subject to control orders. A number have severe mental health problems as a result of their indefinite detention; one was seized from a psychiatric unit. Their families and lawyers were initially not told where they were taken to and the Home Office denied repeated requests for this information. Most of the men face expulsion to Algeria. The decision to rely on diplomatic assurances from a regime that the government knows on strong evidence make use of torture undermines the universal international rejection of such "assurances".

5. Asylum and extradition

The government has deliberately conflated the issues of asylum and extradition with its intention to deport people from the UK. "Anyone who has participated in terrorism or has anything to do with it anywhere will be automatically be refused asylum" said the prime minister (in point 3 of his statement), equating terrorism with asylum and scapegoating refugees in the comfortable knowledge that the security services have been vetting those from targeted countries for years.

As for extradition: "cases such as Rashid Ramda wanted for the Paris metro bombing 10 years ago and who is still in the UK" are "completely unacceptable" said Blair (point 4), we "will set a maximum time limit for all future cases involving terrorism". What this deliberately ignores is the fact that the Home office has taken five years to make a decision on the Ramda case, and that the Extradition Act 2003 has already introduced fast-track procedures. The European Arrest Warrant (EAW) legislation contains a maximum time limit of 60 days and in 2004 the Home Office reported to the European Commission that its average EAW proceedings lasted a mere 17. Two EU countries, Poland and Germany, have now ruled the hastily adopted EAW legislation unconstitutional and a third, Belgium, has referred the matter to the European Court of Justice. There are likely to be similar challenges in other EU countries because constitutional protections were simply discarded in the desire to speed-up proceedings.

6. "Special" court procedures and "special" judges

ACPO's call to hold terror suspects for up to three months without charge must be seen in the context of the government's intention to revisit administrative detention (without charge) which was struck down by the House of Lords, leading to the "control orders" legislation. It proposes "new court procedures" (point 6) and more money for "special judges" (point 8). These proposals are shorthand for detention without trial, a government appointed prosecuting judge, secret evidence, secret hearings, court appointed defence lawyers, and so on—procedures that all concerned have long recognised violate the right to a fair trial and the prohibition against arbitrary detention under Article 5 of the ECHR, from which the UK has already infamously derogated.

A seven-day interview period was already long time. This has only very recently been doubled to 14 days. There is no evidence that this is not enough time to make decisions on whether to charge suspects or not. A longer period of detention without charge would be likely to encourage the police to make arrests not based on concrete intelligence but as "fishing expeditions" This aggressive policing would constitute harassment and alienate the Muslim community, who will feel increasingly criminalised. Note that a three month period of detention without charge is the equivalent of a six month prison sentence.

The idea of secret courts with judges considering secret evidence undermines the fundamental principles that (a) criminal proceedings must be held in public because justice must be seen to be done and (b) that the accused person must know the evidence against them. Arguably the more serious the charge which the accused person faces the more important this is. What is suggested as future legislation is a "wish list" that police, intelligence services and governments would love to possess if there were no restraint upon their powers. There is one possible exception, the admissibility in court proceedings in the UK of phone tap evidence. What is extraordinary is that this is evidence whose use has been continuously long opposed only by the intelligence services.

We should not forget that the justification for secret courts in SIAC to consider the cases of people interned indefinitely without trial was in large part because phone tap evidence was not used in court here. What are now being demanded are secret courts and using phone tap evidence in normal court proceedings. Secrecy for "intelligence" evidence is a recipe for yet more misleading claims that, therefore, go untested. There have been too many recent examples of deliberate manipulation of "intelligence" for political purposes to think of bringing in "secret" courts.

7. Extended powers of proscription

The government has also announced its intention to proscribe "Hizb-ut-Tahrir" and any successor organisation to "Al Muhajiroun" (point 9), extending the powers of proscription under the Terrorism Act 2000 if necessary to cover "extremist" as well as "terrorist" organisations. Hizb-ut-Tahrir is a political organisation that has been committed to non-violence for 50 years. Shami Chakrabarti of Liberty, is correct to say that it is "unwise to emulate the banning tendencies of Middle Eastern regimes that radicalised generations of dissenters by similar policies".

It must also be pointed out that "proscription" is an extremely serious sanction: members of a proscribed organisation can be jailed for 10 years and many forms of active and passive support are criminalised. Wearing clothing or displaying a symbol suggesting support for a banned organisation, for example, carries a five year jail sentence. There can be no justification for prosecuting Hizb Ut Tahir and not the British National Party, whose members have been accused of inciting and perpetrating violent racist acts. In a democracy, neither should be proscribed. Those of us who disagree with them should confront them politically. If their members break the law they should be dealt with by the criminal justice system.

Since the 7 July bombings there has been a UK-wide increase in faith related and racially motivated attacks and widespread violence against individuals, their homes and families, businesses and places of worship. The British National Party has been distributing leaflets with images from the London bombings and the question "isn't it about time you started listening to the BNP"? They have been spurred on—"indirectly incited" perhaps—by a right-wing media intent on an "extremist" witch-hunt. The government is not doing enough to confront this form of extremism. On the contrary, some of its proposals pander directly to it.

8. "Securing our borders"

The proposals to "secure Britain's borders" have so far been limited to the creation of a database on international extremists to be refused entry (discussed above) but are likely to encompass a much wider agenda. The idea of a "border police" has been floated, though it must be said that joint operations of immigration and police officers increasingly resemble such a force.

The government has been careful not be drawn into debate around the unpopular ID cards bill and both Blair and Clarke have been unequivocal in admitting that "all the surveillance in the world" could not have prevented the London bombings. Yet in the same breath, Mr Clarke was in Brussels on the 13 July for a specially convened meeting of the EU Justice and Home Affairs Council proposing to his 24 counterparts that they all introduce a biometric ID card in response to the bombings.[233] Predictably, the attacks were also used as a justification for the long-standing and long-opposed proposal to introduce the mandatory retention of all telecommunications data in the EU. Neither of these measures are necessary to combat terrorism or legitimate in a democratic society.

9. Good citizens and stop-and-search

Presenting the London bombings as an attack on "our way of life", the government argues that the problem is that "our freedom" and generosity has for too long has allowed people to come to this country without fully accepting "our values".

UK law already requires people being granted British citizenship to take an English test, attend a "citizenship ceremony" and swear allegiance to Britain and the monarchy (something many existing British citizens would refuse). What is now proposed by the government is an "Integration Commission" to focus on "those parts of the community presently inadequately integrated" (point 10 of the Blair statement). The irrevocable flaw in this argument is of course, as one commentator succinctly put it, that "being born in a barn doesn't make you a horse".

To prepare the ground for the integration commission the prime minister duly dispatched Home Office minister Hazel Blears on a bus tour of northern cities to reach out to young Asian youth. Blears was a surprising choice because she had outraged the Asian population before and after the bombings by telling them that, contrary to the Race Relations Act, they should expect to be disproportionately stop-and-searched.

"Why are you disaffected?", asked a patronising Blears in Leeds, Bradford and elsewhere. There were two overwhelming and entirely predictable responses: disproportionate stop-and-search and UK foreign policy, particularly Iraq. Ignoring these concerns can only add to any feelings of alienation and marginalisation.

A recent report from the Metropolitan Police Authority[234] stated that the current stop and search practice has created deeper racial tensions and severed valuable sources of community information and criminal intelligence. Rather than extend the period of detention of innocent people, the police should concentrate on improving their intelligence whose failures have lead to huge resentment on the part of the Muslim community.

ANALYSIS OF GOVERNMENTS PROPOSALS

New grounds for deportation and exclusion

— Fostering hatred, advocating violence to further a person's beliefs or justifying or validating such violence.

— Memorandum of Understanding with Jordan and possibly 10 other countries.

— Legislating specifically for a non-suspensive appeal process in respect of deportations.

— A list drawn up of specific extremist websites, bookshops, centres, networks and particular organisations of concern. Active engagement with any of these will be a trigger for the home secretary to consider the deportation of any foreign national.

New anti-terrorism legislation

— An offence of condoning or glorifying terrorism. To be applied to justifying or glorifying terrorism anywhere, not just in the UK.

Automatic refusal of asylum for anyone who has participated in terrorism or has anything to do with it anywhere.

Extending powers to strip citizenships for those acting in a way contrary to the interests of the country and applying them to naturalised citizens engaged in extremism.

Maximum time limit for all future extradition cases involving terrorism.

New court procedure to allow a pre-trial process. Detention pre-charge of terrorists be significantly extended.

Extend use of control orders to British citizens and those unable to be deported. Any breach will mean imprisonment.

Expand court capacity and appoint new special judges for control orders and related issues.

Proscribe Hizb ut Tahrir and Al-Muhajiroun. Expand the grounds for proscription in new legislation.

New citizenship tests and community integration proposals.

New powers to close extremist mosques. List of Imams who are non-UK citizens who will be banned from Britain.

New measures for border controls—biometric visas.

International database of non desirables to be denied entry to UK. Any appeals to take place out of UK.

JOINT STATEMENT

UNITED TO PROTECT OUR RIGHTS

Since the bombings in London in July 2005 the police have succeeded in conducting widespread investigations using the vast range of powers already available to them.

Throughout those same five weeks, however, we have observed with fear and horror announcements by the government of the steps it intends to take to change legal certainties that it was previously believed would stand firm in all circumstances. We are particularly concerned that the government is giving a green light to racism and Islamaphobia and signalling a general attack on freedom of expression in the Muslim community

We the following register our grave concerns, and our total and stalwart opposition to the following steps proposed by the government:

1. The removal of trial by jury for offences linked to terrorism.

2. The hearing of evidence in secret by judges and special advocates alone in terrorist trials with the accused person not told of the evidence against them and no public accountability.

3. The deportation of individuals at risk to regimes known to practise torture in reliance on "diplomatic assurances".

4. The extension of pre-charge detention beyond the already lengthy 14 day period and the encouragement it will give to arrest people about whom there is no reasonable suspicion or intelligence.

5. The banning of organisations which are not involved in terrorism or violence and do not advocate it such as Hizb-ut-Tahrir.

6. The criminalisation of imams, bookshops, mosques and organisations for the expression of legitimate religious and political ideas (even if such ideas are thought to be offensive or wrong) such as the adoption of sharia law.

7. The creation of new offences of indirect incitement to terrorism—even though incitement to murder is already a crime—and of acts preparatory to terrorism—even though existing law already makes it an offence to be knowingly involved in terrorism.

8. The amendment or repeal of the Human Rights Act.

We have not forgotten the experiences of the conflict in Northern Ireland and the lessons of the last 30 years when the removal of fundamental rights and the creation of an entire suspect community achieved nothing other than the continuation of violence, fear, bitterness and the creation of an unbridgeable divide. We call on the government to protect all of the people by advocating a proper and judicious use of the existing law and by realising that over-reaction will be deeply counterproductive.

HR25@

http://www.statewatch.org/news/2005/jul/12uk-terr-laws-HmSec.htm

http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=196&CM=8&DF=19/07/2005&CL=ENG

228 Home Secretary announces new terrorism laws (20 July 2005): Back

229 ACPO proposals (21 July 2005): http://www.statewatch.org/news/2005/jul/acpo-terr-proposals.pdf Back

230 Prime minister's statement (5 July 2005): http://www.statewatch.org/news/2005/aug/02pm-terror-statement.htm Back

231 Home Office consultation document (5 July 2005): http://www.statewatch.org/news/2005/aug/uk-deportation.pdf Back

232 Council of Europe Convention on terrorism (2005): Back

233 Statewatch news online: http://www.statewatch.org/news/2005/jul/07eu-id-bio-plan.htm. Back

234 Report of the MPA Scrutiny on MPS Stop and search Practice, May 2004. Back