Joint Committee On Human Rights

Joint Committee On Human Rights Nineteenth Report

1 Introduction

1. This is our third Report of this Session and our sixth report overall in our ongoing inquiry into counter-terrorism policy and human rights. Our purpose in keeping open our inquiry into this subject has been to enable us to continue to take evidence on specific aspects of counter-terrorism policy, with a view not merely to responding to measures brought forward by the Government but to putting forward positive policy suggestions for countering terrorism which are in our view compatible with the UK's human rights obligations.

The Government's change of approach

2. In previous reports in this inquiry, we have had cause to be very critical of the Government's general approach to counter-terrorism policy as well as aspects of its substance.[1] We have frequently complained about a lack of opportunity for proper parliamentary scrutiny of counter-terrorism measures, about the Government's apparent desire to be seen to do something about terrorism by rushing hastily prepared legislation through Parliament, and about the risk of counterproductivity which arises as a result of the alienation felt by certain communities who feel that they have not been properly involved in discussing and formulating an appropriate response to the threat from terrorism. We have also been critical of the Government's apparent willingness to call into question certain fundamental features of the human rights law framework with which the Government's response to terrorism must be compatible.

3. We therefore warmly welcome the announcement of a new approach to counter-terrorism policy set out in the statement of the former Home Secretary the Rt Hon Dr John Reid MP to the House of Commons on 7 June 2007.[2] The former Home Secretary announced that the Home Office had now completed a comprehensive review of counter terrorism legislation and outlined both the Government's proposed approach to bringing forward new counter-terrorism measures and the specific areas of the law in which the Government is considering new legislation, probably in a bill to be brought forward in the autumn.

4. We welcome a number of aspects of this announcement. We welcome the Government's commitment to extensive consultation, both within and beyond Parliament, on the measures which are necessary, with a view to proceeding on the basis of national consensus, rather than partisan politics, on issues concerning national security. We welcome the commitment to work with relevant communities to isolate, prevent and defeat violent extremism. We welcome the explicit recognition that as the powers to counter terrorism are increased, so there must be an increase in both parliamentary and judicial scrutiny of those powers to ensure a counter-balance against any arbitrary use of those powers. We welcome the commitment to give both us and the Home Affairs Select Committee an opportunity for pre-legislative scrutiny of draft clauses, before the introduction of any Bill. We also welcome the publication of a "Government Discussion Document" outlining some of the measures that might be included in a future bill, the commitment to publish a fuller "content paper" in the next few weeks, and the creation of a webpage on the Home Office website dedicated to the Bill. The Government has indeed committed itself to a more comprehensively consensual approach than it has ever used before and we look forward to playing our part in ensuring that this aspiration is fulfilled in practice.

5. We also welcome the measured tone of the Government's reaction to the recent terrorist attacks in London and Glasgow. We are heartened that these attacks do not appear to have deflected the Government from the consensual approach set out in the former Home Secretary's statement on 7 June. We welcome the indication by the Prime Minister and Home Secretary that there will be no "rush to legislate" in the wake of the attacks and that the Government remains committed to extensive consultation and debate about possible new measures to be brought forward in the autumn. We welcome the recognition in ministerial statements that countering the terrorist threat must be done not only by military, police, and intelligence means, but by "winning the hearts and minds" of members of the communities from which the violent extremists are recruited. Finally, we welcome the fact that the Government's response has not suggested that human rights are a hindrance to protecting the public's security, but rather has spoken of security in terms of the ability to live in accordance with "shared values" of individual dignity, life and liberty.[3]

The Government's commitment to human rights law

6. Only two weeks before this change of approach, however, the former Home Secretary the Rt Hon Dr John Reid MP made a statement to Parliament in which he referred to what he considered to be the "inadequacy" of the international human rights law framework with which the Government's counter-terrorism measures must be compatible.[4] He referred to there being a disjuncture between the international human rights conventions we have inherited and the reality of the threat we face from terrorism today, resulting in there being "gaps" in the international legal framework. In the former Home Secretary's view, these gaps and inadequacies cannot be addressed by courts and lawyers interpreting the legal conventions we have inherited, but must be addressed by politicians who should be working to modernise the law, including by "building on" the European Convention on Human Rights. The main change which he appeared to envisage was that the ECHR should be amended to make the right to security the basic right on which all other rights in the Convention are based.

7. In our report on the DCA and Home Office reviews of the Human Rights Act, we reported our concerns about the effect of repeated questioning of the domestic human rights law framework by high-ranking members of the Government.[5] The former Home Secretary's comments in Parliament on 24 May 2007 called into question the international human rights law framework which binds the UK. They were also directly at odds with the views of the then Lord Chancellor, Lord Falconer, given in evidence to us only three days earlier.[6] The then Lord Chancellor disagreed that there are gaps in the international human rights law framework, saw no need to amend it and thought that the UK's commitment to it should be unequivocal.

8. We therefore wrote on 25 May 2007 to the then Home Secretary asking him to clarify whether or not it is the UK Government's position that the international human rights law framework requires amendment in order to be able to counter terrorism effectively, and if so how, and whether the UK had taken any active steps to build an international consensus to this effect.[7]

9. We did not receive a response to our questions before the former Home Secretary left office. We expect that the new Home Secretary will respond to our questions and hope that she will be unequivocal in her agreement with the former Lord Chancellor. We recommend that the Government make an unequivocal public commitment to the existing international human rights law framework.

The importance of prosecution

10. The Government's significant change of approach and tone in its counter-terrorism policy is in keeping with an emerging recognition that current counter-terrorism powers are, by now, broadly sufficient and that what is needed is not more legislative responses but a redoubling of efforts to use existing powers to prosecute those suspected of involvement in terrorism.

11. The Director of Public Prosecutions, Sir Ken Macdonald QC, in a recent public lecture, "Security and Rights", said,

"Acts of unlawful violence are proscribed by the criminal law. They are criminal offences. We should hold it as an article of faith that crimes of terrorism are dealt with by criminal justice. And we should start by acknowledging the view that a culture of legislative restraint in the area of terrorist crime is central to the existence of an efficient and human rights compatible process."[8]

12. The Head of the Metropolitan Police Counter Terrorism Command, Deputy Assistant Commissioner Peter Clarke, made a similar point in his recent public lecture, "Learning from experience: Counter-terrorism in the UK since 9/11":

"My personal view is that we now have a strong body of counter terrorist legislation that by and large meets our needs in investigating these crimes and bringing prosecutions. Prosecution through the courts, using judicial process that is recognised and understood by the public, is of course by far the preferred method of dealing with terrorism."[9]

The importance of transparency

13. In our last Report, when we emphasised that it was a human rights responsibility of Government to protect those within its jurisdiction, we also emphasised that if by any legislation Government proved counter-productive (in the battle for hearts and minds) it would not be fulfilling that responsibility. In our view, justice and its administration must be as transparent as it is in every way possible to make them and the case for any additional new legislation would convincingly have to be seen to be evidence-based. Justice has to be seen to be done.

Our report

14. The main focus of this Report is consideration of what we consider to be the most significant of the proposals which the Government has announced it will be taking forward: the possible further extension of the 28 day limit on pre-charge detention, the possible use of intercept as evidence in criminal prosecutions, and other alternatives to extending pre-charge detention such as post-charge questioning of terrorism suspects. The Report also considers some other aspects of counter-terrorism policy, including the role of special advocates in control order proceedings, and the conditions of pre-charge detention at Paddington Green. We intend to inquire further into other matters, including the definition of terrorism and racial profiling, and to return to these in a later Report. We also intend to return in a future Report on torture to other aspects of the Government's counter-terrorism policy, including towards extraordinary rendition.

1 See e.g. Third Report of Session 2005-06, Counter-Terrorism Policy and Human Rights: Terrorism Bill and related matters, HL Paper 75-I/ HC 561-I (hereafter "JCHR Report on the Terrorism Bill"); Twelfth Report of Session 2005-06, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006, HL Paper 122/ HC 915 (hereafter "JCHR Report on First Control Order Renewal"); Twenty-fourth Report of Session 2005-06, Counter Terrorism Policy and Human Rights: Prosecution and pre-charge detention, HL Paper 240/ HC 1576 (hereafter "JCHR Report on Prosecution and Pre-charge Detention"); Eighth Report of Session 2006-07, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2007, HL Paper 60/ HC 365 (hereafter "JCHR Report on Second Control Order Renewal"). Back

2 HC Deb 7 June 2007 cols 421-423 (hereafter "former Home Secretary's 7 June statement on counter-terrorism"). Back

3 See e.g. the Home Secretary's statement to the House of Commons on counter -terrorism on 2 July 2007, HC Deb 2 July 2007 cols 671-2; the Prime Minister's interview on BBC Sunday AM, 1 July 2007. Back

4 HC Deb 24 May 2007, cols 1428-1429. Back

5 Thirty-second report of Session 2005-06, The Human Rights Act: The DCA and Home Office Reviews, HL Paper 278/HC 1716 at para. 41. Back

6 Oral evidence, 21 May 2007, Qs 4, 15 and 46. Back

7 Ev 68. Back

8 Security and Rights, public lecture to the Criminal Law Bar Association by Sir Ken Macdonald Q.C., DPP (23 January 2007). Back