The Government states that "the protection of human rights is a key principle underpinning all the Government's counter-terrorism work." However, all too often human rights considerations are squeezed out by the imperatives of national security and public safety.
Since September 11th 2001 the Government has continuously justified many of its counter-terrorism measures on the basis that there is a public emergency threatening the life of the nation. We question whether the country has been in such a state for more than eight years. This permanent state of emergency inevitably has a deleterious effect on public debate about the justification for counter-terrorism measures.
In order to make judgments about the necessity and proportionality of counter-terrorism measures we need access to information about the scale and nature of the threat posed. We are disappointed that the Director General of the Security Service is prepared to give public lectures but is not prepared to give public evidence to us.
We are concerned about the Government's narrow definition of what amounts to complicity in torture. The Government's formulation appears to be carefully designed to enable it to say that, although it knew or should have known that some intelligence it received was or might have been obtained through torture, this did not amount to complicity in torture because it did not know or believe that such receipt would encourage the use of torture by other States. This is a significant and worrying change in definition. We also argue that, in light of recent developments such as the publication of the full High Court judgement in the Binyam Mohamed case, the case for setting up an independent inquiry into the allegations of complicity in torture is now irresistible.
There has been a dramatic growth of the use of secret evidence in the UK courts. It can now be used in a wide range of cases including deportation hearings, control order proceedings, parole board cases, asset-freezing applications, employment tribunals, and even claims for damages. In light of recent judgements we recommend an urgent and comprehensive review of the use of secret evidence and special advocates, in all contexts in which they are used.
Parliament still does not have the information it needs properly to evaluate whether the power to detain terrorism suspects pre-charge for up to 28 days continues to be necessary. We recommend that a thorough independent review be conducted of the pre-charge detention of all those individuals who were arrested in relation to the Heathrow airline plot and detained without charge for more than 14 days. We also recommend amendments to the Terrorism Act 2000 to introduce procedural safeguards surrounding the extension of pre-charge detention. In addition we support Lord Carlisle's recommendation that training be provided to police officers on the effect of Article 5 ECHR on detentions under the Terrorism Act 2000.
The Government has still not given up on the possibility that pre-charge detention may be extended to 42 days. A draft bill exists that will be introduced if and when the need arises. We recommend that the Government withdraw its draft Bill which, if it were enacted, is likely to give rise to breaches of the right to liberty in Article 5 ECHR in the absence of a derogation. We also recommend that a clear statutory framework for future derogations from the ECHR should be introduced at the earliest opportunity.
We remain of the view that the Terrorism Act 2000 should be amended to allow the granting of bail, subject to the full range of conditions available in relation to crime generally and in relation to control orders. Given the differing police views in this area, and the range of terrorism offences that now exist, we recommend that the Government hold a full consultation on whether bail should in principle be available in relation to terrorism offences.
The use of intercept as evidence has been an ambition since the Privy Counsellors reported in January 2008. However, designing a model for the use of intercept as evidence has proved difficult because of the tension between the operational and legal requirements which the Privy Counsellors stipulated any model must meet. The roadblock to progress is the insistence on ongoing agency discretion over the retention, examination and transcription of intercept material. This makes a legally viable regime impossible given the clear requirements of Article 6 ECHR. We do not see any difficulty in principle with independent judicial control over what material may be discarded. We therefore recommend that the operational requirements be revisited.
Finally, we considered the arrangements for oversight of counter-terrorism policies. We repeat our earlier recommendations that the ISC should be made a proper parliamentary committee, with an independent secretariat, independent legal advice and access to an independent investigator. We also recommend that human rights expertise be made available to the new Joint Committee on National Security Strategy, both in its membership and at staff level. The post of statutory reviewer of terrorism legislation should be appointed by Parliament and report directly to Parliament and be limited to a single term of five years.