Appendix 2: Memorandum from the British Irish
Rights Watch (BIRW)
1. INTRODUCTION
1.1 British Irish Rights Watch (BIRW) is an independent
non-governmental organisation that has been monitoring the human
rights dimension of the conflict, and the peace process, in Northern
Ireland since 1990. Our services are available, free of charge,
to anyone whose human rights have been violated because of the
conflict, regardless of religious, political or community affiliations.
We take no position on the eventual constitutional outcome of
the conflict.
1.2 BIRW welcomes the scrutiny by the Joint Committee
on Human Rights of the Council of Europe Convention on the Prevention
of Terrorism(CECPT). Although BIRW's remit does not extent to
include international terrorism, our experience in Northern Ireland
is relevant. We have only commented on areas which fall directly
under our mandate.
1.3 We would like to express concern at the limited
time period given in this inquiry for submissions, which is especially
problematic for small NGOs such as ours. We respectfully ask the
Committee to consider extending the deadlines for the presentation
of evidence in future inquires.
1.4. The Committee asked four questions as part
of their inquiry into the UK's ratification of the Convention
on the Prevention of Terrorism. These questions were:
Whether the new criminal offences in
Part 1 of the Terrorism Act 2006 (encouragement of terrorism and
dissemination of terrorist publications) have inhibited legitimate
freedom of expression, association and religion, and if so, how.
Whether the new grounds on which organisations
can be proscribed in s. 21 of the Terrorism Act 2006 have inhibited
legitimate freedom of association.
Whether the UK complies with the duty
to investigate and either extradite of prosecute terrorist suspects.
Whether the measures adopted by the
UK to protect and support the victims of terrorism are adequate.
2. CRIMINAL OFFENCES
IN PART
1 OF THE
TERRORISM ACT
2006
2.1 British Irish Rights Watch has a number of
serious concerns about the Terrorism Act 2006 including the new
criminal offences of encouragement of terrorism and dissemination
of terrorist publications and their impact upon freedom of expression,
association and religion. It is clear that the UK government has
not taken account of Article 12 of the CECPT regarding respect
for human rights obligations.
2.2 As we outlined in previous briefings to the
Joint Committee, the outlawing of the encouragement of terrorism
is a vague concept. In particular, it appears to make individuals
responsible for the actions of the collective, over which they
may no or only limited control. This is particularly relevant
at s. I(2)(a) of the Terrorism Act 2006, which states: "A
person commits an offence if - he publishes a statement to which
this section applies or causes another to publish such a statement;"
(our emphasis). This vagueness will have a serious impact when
it comes to trying to convict individuals of these offences.
2.3 What makes the presence of the encouragement
offence within the Terrorism Act 2006 so redundant is the fact
that the following offences already exist in legislation, all
of which clearly encapsulate the principles laid out in Section
1.:
to "invite support for a proscribed terrorist
organisation";[42]
to "encourage, persuade or endeavour to persuade any person
to murder any other person";[43]
to "counsel or procure" any other person to commit any
indictable offence;[44]
to "solicit or incite" another person to commit any
indictable offence;[45]
to incite another person to commit an act of terrorism wholly
or partly outside the UK;[46]
and to conspire with others to commit offences outside the UK.[47]
2.4 The criminalisation of the encouragement
of terrorism and the dissemination of terrorist publication has
a negative impact upon basic freedoms such as expression, association
and religion. This can be clearly seen with s. 1(3)(a) of the
Terrorism Act which states: "…the statements that are
likely to be understood by members of the public as indirectly
encouraging the commission or preparation of acts of terrorism
or Convention offences include every statement which - glorifies
the commission or preparation (whether in the past, in the future
or generally) of such acts or offences".
2.5 We do not dispute the principle that the
glorification of acts of violence is offensive. However, on highly
contentious issues such as the war in Iraq or the ongoing conflict
in Israel/Palestine, one person's terrorist is another person's
freedom fighter. In other words, it is impossible for there to
be any objectivity on certain contentious subjects. The right
to freedom of expression in the UK allows these contentious views
to be expressed both publicly and privately. This expression encourages
debate, which in turn encourages the moderation of extremist views.
In countries where freedom of expression is undermined, such as
Egypt, we see a rise of underground, extremist politics, and an
absence of democracy.
2.6 Similarly, the right to free association
also contributes to the strengthening of democracy. If this right
is curtailed then groups are driven underground and are thus harder
to monitor. For instance, the views expressed by Abu Hamza al-Masri
at the Finsbury Park Mosque may have been highly offensive, but
the fact that they were so public enabled both him and other advocates
of extremist Islam to be monitored. If the right to association
had been undermined and Abu Hamza was forced to meet his supporters
in secret rather than at a prominent London mosque, then this
monitoring would have become even harder.
2.7 The demonisation of Islam in the UK has substantially
undermined the freedom of religion one would expect in a mature
democracy. While the fact that there are mosques which preach
an extremist version of Islam and encourage the use of violence
in the UK is an issue for concern, the methods proposed by the
government to combat this extremism are contributing to the curtailment
of religious rights and freedoms, and are counter-productive in
that they make such views seem more glamorous to those who are
already alienated and/or disaffected.
2.8 Section 2 of the Terrorism Act 2006, which
deals with the dissemination of terrorist publications, falls
into a category similar to that of the encouragement of terrorism
offence. Firstly, there is a substantial impact upon freedom of
expression and the subsequent impact on public debate. Attempting
to prevent the publication of texts will drive extremist publications
underground where their content and distribution will be more
difficult to monitor. Secondly, such an offence would be hard
to police especially given the extensive use of the internet,
which will enable contentious texts to be posted anonymously on
web forums or circulated via third parties based outside the jurisdiction.
Thirdly, the definition of a 'terrorist publication' is unclear.
This could lead to innocuous publications such as science textbooks
dealing with nuclear power being considered as terrorist publications.
Similarly, a book about the Northern Irish hunger strikers could
be considered a terrorist publication, if the prosecution argued
that it could encourage acts of republican terrorism.
3. THE PROSCRIPTION
OF ORGANISATIONS
UNDER THE
TERRORISM ACT
2006
3.1 Many of the principles we have outlined above
under the encouragement of terrorism and the dissemination of
terrorist publications have covered the new grounds on which organisations
can be proscribed, namely the glorification of terrorism. It is
clear that the grounds for proscription will inhibit freedom of
association. Proscribing organisations merely drives people underground
which ensures that their activities are harder to monitor and
their extremism can grow unchecked.
3.2 On a broader principle, BIRW has concerns
about the Terrorism Act as a whole because this legislation typifies
the wider erosion of human rights taking place in the United Kingdom
today. Draconian legalisation is not the way to address terrorism.
Indeed, the curtailment of freedoms and human rights standards
seeks to push those already on the margins to the extreme, as
well as undermining the rule of law. Our experiences in Northern
Ireland clearly show that similar legislation, such as that relating
to internment, directly increased the numbers joining the IRA
and participating in terrorist activities.
3.3 The Terrorism Act 2006 appears to focus heavily
on one community - Muslims. We fundamentally oppose the use of
racial or religious profiling in the legislative arena. The creation
of an atmosphere of racial mistrust and suspicion can only contribute
to an increase in alienated, angry people, playing straight into
the hands of the terrorists. We have seen this with the stigmatisation
of the Irish community in England during the 1970s and '80s. We
believe that such measures undermine Article 3 of the CECPT which
says that "Each party shall promote tolerance …"
4 DUTY TO
INVESTIGATE
4.1 The government's duty to investigate terrorists
suspects, and associated duties of extradition or prosecution,
has been undermined by their failure to adequately execute these
actions in Northern Ireland. As a result, few lessons appear to
have been learned. BIRW has raised concerns about the methods
used by the government in their attempts to prevent terrorist
attacks. These have included UK complicity in extraordinary rendition,
the use of evidence obtained under torture and the erosion of
suspects' rights. Of particular concern was the government's desire
to extend the length of pre-charge detention. We argued clearly
against the case for extending detention time to a maximum of
90 days, instead we placed an emphasis on the need to expand the
resources available to both the police and other security services
in the form of translators, increased collaboration with mobile
phone companies and the use of intercept evidence. It is clear
that the UK is facing a threat from both domestic and international
terrorism; however, as already noted, eroding human rights and
condoning the use of torture simply serves to increase alienation
and extremism. The strongest defence the UK has against these
threats is a robust system for the administration if justice which
is firmly rooted in compliance with domestic and international
human rights norms.
4.2 The government has consistently failed in
Northern Ireland to deliver justice for the families of those
bereaved by acts of terrorism, whether on the part of paramilitaries
or state actors involved in collusion. This can currently be seen
in the trial of Sean Hoey, who is facing charges related to the
Omagh bombing in 1998. Not only is the trial taking place years
after the event, but it has been dogged throughout by concerns
about forensic evidence and unreliable witnesses.[48]
Perhaps of more significance are cases where the UK government
has placed the protection of informers over the principles of
justice. Mark Haddock, a UVF terrorist, was complicit in numerous
acts of violence, yet as a Special Branch informer, was able until
very recently to operate with impunity.[49]
4.3 The Inquiries Act 2005 has long been criticised
by BIRW for its incompatibility with Article 2 of the European
Convention of Human Rights. The judicial review taken by David
Wright, father of the late Billy Wright, leader of the LVF, has
huge implications for the future of the Inquiries Act, as David
Wright has applied for a declaration that the Act is incompatible
with the Human Rights Act 1998 and the European Convention on
Human Rights. That contention has the support of Amnesty International,
the Northern Ireland Human Rights Commission, BIRW and the Committee
on the Administration of Justice. The conversion of the statutory
basis of the Robert Hamill Inquiry to the Inquiries Act has already
resulted in interference by the Secretary of State in the costs
lawyers involved in the Inquiry can claim and the hours they can
work, which is heading for another judicial review. That inquiry
has also been delayed over claims for anonymity by police officers.
4.4 While BIRW welcome the creation of the Historical
Enquiries Team (HET) to examine conflict related deaths in Northern
Ireland, we do not believe that they are fully independent, and
thus not Article 2 complaint, because they report to the Chief
Constable of the Police Service of Northern Ireland, who in turn
reports to Her Majesty's Inspectorate of Constabulary, which is
headed by Sir Ronnie Flanagan, former head of the Royal Ulster
Constabulary, who presided over many of the investigations now
under scrutiny by the HET. Concerns have also been raised about
the number of missing records and case files which will undermine
the quality of the investigations.
4.5 We have previously raised with the Committee
the failure by the government to investigate deaths involving
the security forces. In particular, the delay in the implementation
of the European Court of Human Rights' judgments in the cases
of McKerr, Shanaghan, Jordan, Kelly & Ors, McShane and Finucane
is inexcusable.
5. PROTECTION
AND SUPPORT
OF VICTIMS
OF TERRORISM
5.1 In our view, the measures adopted by the
UK government to protect and support the victims of terrorism,
have been woefully inadequate. Our experience in Northern Ireland
has indicated that despite 30 years of conflict, few lessons have
been learned by the government in how to address the rights and
needs of victims.
5.2 Firstly, the use of informers and the value
placed on intelligence by the security forces rather than on the
right to life has enabled acts of terrorism to take place which
could have been stopped. For instance, the murder of Francisco
Notarantonio in 1987 by loyalists with state collusion, apparently
enabled Alfredo Scappaticci, a high ranking IRA member and Force
Research Unit informer to be protected. Scappaticci's involvement
with the IRA's internal discipline unit means that he was allegedly
involved in multiple killings which could have been prevented.
Loyalist informers such as Mark Haddock have also enjoyed similar
protection, with the same outcome.
5.3 Secondly, a sectarian police force meant
that deaths by terrorists did not receive effective investigations,
and thus perpetrators went unpunished. This undermined the rule
of law in Northern Ireland and failed to provide a suitable deterrent
to further acts of terrorism. It prevented bereaved families from
accessing the mechanisms of truth and justice about their loved
ones' deaths.
5.4 Thirdly, the measures which were taken by
the government to protect Northern Ireland's citizens from acts
of terrorism fuelled ratter than dampened the conflict. As mentioned
earlier, the policy of internment alienated many young Catholics
and substantially aided the recruitment efforts of the IRA. The
'shoot to kill policy' and the events of Bloody Sunday has similar
consequences. Fourthly, compensation to victim's families was
often woefully inadequate with some families having to fight for
years to get any money at all.
5.5 Finally, recent attempts by the government
to provide a voice for victims, in the form of a Victim's Commissioner
have resulted in controversy. The appointment of Bertha McDougall,
the widow of an RUC officer, alienated many in the nationalist
community. The appointment was viewed as being highly political,
without due concern for the rights and needs of victims. The resulting
judicial review into the appointment has further undermined the
status of the post and left victims without a champion.
5.6 In conclusion, the failure of the government
to adequately investigate terrorist crimes and to protect and
support the victims of terrorism in Northern Ireland does not
bode well for victims of more recent terrorist attacks such as
those on 7 July 2005. Until the government is prepared to acknowledge
its mistakes in Northern Ireland, then there is little chance
that lessons can be learned and best practice applied. It is unclear
how the government will respond appropriately to the demands of
the Council of Europe's Convention on the Prevention of Terrorism.
However, undermining human rights standards within the UK through
the design and application of draconian legalisation does not
bode well for this process.
42 Terrorism Act 2000, s. 12 Back
43
Offences against the Person Act 1861, s. 4 Back
44
Accessories and Abettors Act 1861, s. 8 Back
45
DPP v Armstrong (Andrew) [2000] Crime LR 379 DC Back
46
Terrorism Act 2000, s. 59 Back
47
Criminal Law Act 1977, s.1A Back
48
Omagh DNA evidence 'unreliable'. BBC News, 16 November
2006 Back
49
Haddock inquiry called over judge's comments, Belfast Telegraph,
21 November 2006 Back
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