Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In

Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In - Human Rights Joint Committee Contents

2 Normalising the exceptional

Introduction

7. The recent Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights warned of the corrosive effect of open-ended departures from ordinary procedures and of the danger of special measures, introduced to deal with a temporary crisis, becoming permanent. It recommended that "all legislation intended to deal with terrorism should be regularly reviewed to ensure that the tests initially met still prevail, and to ensure that no unintended consequences have arisen", and that departures from ordinary procedures should be time-limited.[4]

8. We have frequently commented in our work on counter-terrorism policy and human rights on the need to ensure that extraordinary measures, introduced in response to the threat from terrorism, must not only be demonstrated to be necessary and proportionate, but should be time-limited to ensure that there is a proper opportunity to scrutinise whether the original justification still subsists. The risk to be guarded against is that the exceptional becomes the norm. For the reasons we explain in this chapter, we are concerned that this may already have happened.

Is there a "public emergency threatening the life of the nation"?

9. In the immediate aftermath of 9/11, the UK derogated from the right to liberty in Article 5 ECHR when it enacted Part IV of the Anti-Terrorism, Crime and Security Act 2001, authorising the indefinite detention of foreign national terrorism suspects. It was alone amongst the Council of Europe Member States in doing so. As it must when invoking its right to derogate from Convention rights, the Government asserted the existence of "a public emergency threatening the life of the nation".[5]

10. The UK withdrew its derogation from Article 5 in 2005, following the decision of the House of Lords in the Belmarsh case that it was incompatible with the Convention. The House of Lords, by a majority, upheld the Government's argument that there was a public emergency threatening the life of the nation, largely on the basis that the court was not in a position to challenge that assertion, but held that the other condition of a lawful derogation, that the measure in question must be "strictly required by the exigencies of the situation", was not satisfied. The European Court of Human Rights, when it considered the Convention compatibility of the 2001 legislation, similarly deferred to the Government's assertion that there existed at the time of the derogation a public emergency threatening the life of the nation.

11. Although the Government withdrew its derogation, it has never relinquished its assertion that there is a public emergency threatening the life of the nation. In a letter dated 3 August 2007 the Government said that its position on whether or not the UK faces "a public emergency threatening the life of the nation" has not changed since 2001 when it derogated from Article 5 ECHR.[6] Indeed, it claimed in that letter that "it is clear that the threat from international terrorism has increased since 2001."

12. In the years since 2001, the Government's maintenance of its assertion that the UK faces a public emergency threatening the life of the nation has often been publicly challenged.[7] It has also been called into question by the introduction of a system for publicly reporting changes in the threat level, based on the analysis of the Joint Terrorism Analysis Centre ("JTAC"). Under that system, the reported threat level fluctuates, according to JTAC's assessment.

13. On 30 June 2007, for example, the threat level was raised to "critical" (meaning a terrorist attack is expected imminently) in the wake of the attempted attacks in London and Glasgow. On 4 July 2007 the threat level was lowered from "critical" to "severe" (meaning an attack is highly likely). On 20 July 2009 it was reduced from "severe" to "substantial" (meaning an attack is a strong possibility). On 22 January 2010 it was raised to severe again.

14. At the time of our most recent evidence session with the Minister, on 1 December 2009, the threat level was at "substantial". We asked the Minister whether it was still the Government's view that the UK faces "a public emergency threatening the life of the nation". He said "we would still uphold that there is a potential public emergency for consideration and for preparedness by the Government."[8] Pressed further on whether his position was that there is a "potential" public emergency or an "actual" public emergency, and on how low the threat level, as assessed by JTAC, had to drop before there was no longer a public emergency, the Minister replied "as long as the threat level remains as 'substantial', where an attack is a strong possibility, I think we are in a situation whereby we have a potential public emergency which we need to prepare for."[9] In subsequent correspondence, however, he changed this answer. He said that JTAC's decision about the threat level and the Government's decision about whether the "public emergency" test for derogation is met "are independent of each other. It is therefore possible that the Government could consider there to be a public emergency threatening the life of the nation even if JTAC lowered the threat level to one of those below SUBSTANTIAL."[10] There are two levels below 'substantial': 'moderate' and 'low'.

15. We accept of course that JTAC's setting of the threat level, in the light of the latest intelligence, and the Government's decision on whether there is a public emergency threatening the life of the nation, are separate decisions. We do not accept, however, that the Government's decision on the public emergency question can be entirely independent of JTAC's assessment of the threat level. The Government's approach, as set out in the Minister's letter following our evidence session, seems to envisage that the Government could consider there to be a public emergency threatening the life of the nation even if the threat level as assessed by JTAC was at 'moderate' or 'low'. We are concerned that the Government's approach means that in effect there is a permanent state of emergency, and that this inevitably has a deleterious effect on public debate about the justification for counter-terrorism measures.

16. The Government's position that there is a public emergency threatening the life of the nation is important because it determines the starting point in any debate about the justification for counter-terrorism powers. Like the language of the "War on Terror", it asserts the existence of a state of exception, which implies that exceptional measures require less justification than when times are normal. It amounts to a permanent claim that courts and other accountability mechanisms should defer to the Government's assessment of what measures are required.

17. As we have always made clear in our previous reports, we accept that the UK faces a serious threat from terrorism. However, we question whether we still face a "public emergency threatening the life of the nation", more than eight years after the Government first declared that there was such an emergency. In our view, it devalues the idea of a "public emergency" to declare it in 2001 and then to continue to assert it more than eight years later, presumably based on legal advice which seeks to preserve the perceived advantage of both the House of Lords and the European Court of Human Rights having deferred to the asserted existence of this particular public emergency. In any event, we question the value, in legal terms, of the Government's continued assertion of the existence of a public emergency. If it were to seek to derogate from any Convention rights, it would be necessary to demonstrate that a "public emergency threatening the life of the nation" exists at the time of any new derogation, rather than rely on the public emergency which was asserted to exist in 2001.

Availability of information about the scale of the threat

18. In our work on counter-terrorism policy and human rights we have frequently pointed out the importance of having access to information about the scale and nature of the threat posed by terrorism in order to be able to make judgments about the necessity and proportionality of the responses.[11] Five years on, however, we find that we have no better understanding of the nature and scale of the threat posed by international terrorism than we had at the outset.

19. We have often been critical in the past of the refusal by the Director General of the Security Service to give public evidence to us about the nature and scale of the threat.[12] We have expressed our disappointment that the Director General is prepared to give interviews to the press and public lectures but is not prepared to give evidence to any parliamentary committee other than in private to the Intelligence and Security Committee ("the ISC"). In his recent public lecture, Defending the Realm, given at Bristol University in October 2009, the current Director General, Jonathan Evans, reflected on the nature of the threat posed by Al Qaida and how the Security Service's understanding of that threat has changed since 2001:[13]

After 9/11 the UK and other western countries were faced with the fact that the terrorist threat posed by Al Qaida was indiscriminate, global and massive. Now, 8 years on, we have a better understanding of the nature and scope of Al Qaida's capabilities but we did not have that understanding in the period immediately after 9/11.

20. The evolution of the Security Services' understanding of the nature and scope of Al Qaida's capabilities is a matter of great relevance to the discharge of our function of reporting to Parliament on the human rights compatibility of counter-terrorism laws, policies and practices. It is frequently our task to assess whether a particular interference with a fundamental right caused by a proposed counter-terrorism measure is justified because of the nature and scope of the would-be terrorists' capabilities. What the Director-General had to say on this to his audience in Bristol raises a lot of questions that we would have liked the opportunity to pursue with him. Was he implying that, in the period immediately after 9/11, the Security Services in this and other countries over-estimated Al Qaida's capabilities? In what ways is the Security Services' understanding of the nature and scope of those capabilities "better" now? How does that "better understanding" affect the justification for some of the sweeping counter-terrorism powers that were enacted in the wake of 9/11?

21. In the light of the Director-General's public lecture we therefore asked the Minister whether the Director General's refusal to give evidence to us, in view of our legitimate interest in understanding the precise nature and scope of the threat posed by international terrorism, is acceptable. The Minister restated the familiar response of the Government that parliamentary scrutiny of the Security Services is carried out by the Intelligence and Security Committee.[14] However, he offered to reflect on the issue and even to discuss it with the Director General himself.[15]

22. Disappointingly, in his subsequent letter, he merely repeated the Director General's standing offer of "an off-the-record confidential briefing on the current terrorist threat".[16] This was also the Prime Minister's response when he was asked at the Liaison Committee whether he thought it was defensible that the Director General is prepared to talk openly to the press and the media and to give public lectures, but not to appear before a parliamentary committee.[17]

23. We have previously declined offers of a confidential briefing from the Director General of the Security Service about the threat level. The purpose of the Director General appearing before us to give evidence would be to enable us to question him publicly, in order to enhance the democratic accountability of the intelligence and security services, make parliamentary assessments of the necessity and proportionality of counter-terrorism measures more transparent, and so increase public confidence. These things cannot be achieved by off the record, secret briefings.

24. Making the intelligence and security services more accountable to Parliament was one of the themes of the Prime Minister's speech to the House of Commons on constitutional renewal in July 2007.[18] It is a theme to which the House of Commons Reform Committee recently returned.[19] We do not accept the Government's argument that there is a neat division of responsibilities between different parliamentary committees, and that the ISC is the only appropriate committee before which the Director-General of the Security Service should appear. Ministers and officers such as the Director General should expect to be scrutinised by more than one committee. As Parliament's human rights committee, we have a legitimate interest in understanding the precise nature and scope of the threat posed by international terrorism. We consider it to be unacceptable in a democracy that the Director General of the Security Services should give public lectures about the state of the Security Service's understanding of Al Qaida's capabilities, and how that understanding has changed since 2001, but refuse to give evidence in public on the same issue to a parliamentary committee.

A statutory framework for derogation

25. From time to time the possibility of derogating from the UK's obligations under the European Convention on Human Rights is raised, including by Government ministers, usually in the wake of a significant Court decision which goes against the Government's interpretation of the Convention. We saw it in the wake of the decision of the House of Lords in the Belmarsh case, declaring the indefinite administrative detention of foreign national terrorism suspects to be incompatible with the Convention, and again in the wake of the House of Lords decisions about control orders.[20] The issue was also the subject of much discussion during the parliamentary debates about the Government's proposal to increase the maximum period of pre-charge detention to 42 days.[21] Most recently, in the House of Lords decision in AF, the possibility of derogating from the right to a fair hearing in Article 6(1) of the Convention was expressly discussed by some of the Law Lords themselves.[22]

26. Although there has been no derogation from the Convention by the UK since the House of Lords held the 2001 derogation from the right to liberty in Article 5 ECHR to be incompatible with the Convention, the risk of one being proposed by the Government in response to a Court decision it does not like is ever-present. It is clear from the way in which the Government continues to insist that there is a public emergency threatening the life of the nation that the possibility of a derogation is under constant review in the Home Office.

27. In our reports on 42 days and A Bill of Rights for the UK we advocated the adoption of a statutory framework for derogation.[23] We pointed out that under our current arrangements derogation is an essentially executive act and there is very little to ensure that there will be an opportunity for parliamentary scrutiny of the Government's justification for derogating in the event that it decides to do so. Providing legal frameworks for possible future events never seems as pressing as the urgent day to day business which the parliamentary business managers understandably prioritise.

28. There is a clear risk of a derogation being proposed by any Government in the wake of a terrorist atrocity, and the woeful lack of opportunities for parliamentary scrutiny of such a derogation under current arrangements, we recommend that a clear statutory framework for future derogations from the ECHR, ensuring proper opportunities for parliamentary scrutiny, be treated as an urgent priority in the next Parliament. In our view this would be an important addition to the recent package of reforms strengthening Parliament's ability to hold the executive to account in an area of policy where proper democratic scrutiny for justification is vital but all too often lacking.

4 Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, above n. 1, at 47. Back

5 Article 15 ECHR allows States to derogate from some of the Convention rights in time of war or other "public emergency threatening the life of the nation."Because of the seriousness of derogating from Convention rights, the "public emergency" condition is meant to impose a high threshold: it has been interpreted by the European Court of Human Rights to mean "an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community" (Lawless v Ireland (No 3) (1961) 1 EHRR 15 at para. 28). Back

6 Government Reply to the Nineteenth Report of the Joint Committee on Human Rights of Session 2006-07, Cm 7215 p. 16. Back

7 See eg Sir Ken Macdonald QC (former Director of Public Prosecutions) in Security and Rights, a public lecture to the Criminal Law Bar Association (23 January 2007). Back

8 Q50, Ev 7 Back

9 Q55, Ev7 Back

10 Letter from David Hanson, 13 January 2010, published in Report on 2010 Control Orders Renewal, above n.3, at 49-53 (the letter is incorrectly dated 7 January 2010). Back

11 See e.g. Eighteenth Report of Session 2003-04, Review of Counter-terrorism Powers, HL 158/HC 713, at paras 15-23; Second Report of Session 2007-08, Counter-Terrorism Policy and Human Rights: 42 days, HL 23/HC156 (hereafeter, "Report on 42 days") at paras 24-33. Back

12 See e.g. Report on 42 days, above n. 11, at para. 31. Back

13 Defending the Realm, public lecture by the Director General of the Security Service, Jonathan Evans, Bristol University, 15 October 2009. Back

14 Qs 66-67, Ev 9 Back

15 Qs 69 and 71, Ev 9-10 Back