2 Normalising the exceptional|
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.
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".
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.
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.
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."
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." 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."
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
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.
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.
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:
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
However, he offered to reflect on the issue and even to discuss
it with the Director General himself.
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
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
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. It
is a theme to which the House of Commons Reform Committee recently
returned. 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. 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.
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.
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. 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
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
Government Reply to the Nineteenth Report of the Joint Committee
on Human Rights of Session 2006-07, Cm 7215 p. 16. Back
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
Q50, Ev 7 Back
Q55, Ev7 Back
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
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
See e.g. Report on 42 days, above n. 11, at para. 31. Back
Defending the Realm, public lecture by the Director General
of the Security Service, Jonathan Evans, Bristol University, 15
October 2009. Back
Qs 66-67, Ev 9 Back
Qs 69 and 71, Ev 9-10 Back
Letter from David Hanson, 13 January 2010, above n. 10. Back
Oral evidence taken before the Liaison Committee on 2 February
2010, HC (2009-10) 346-i, Q84. Back
HC Deb 3 July 2007 Back
First Report of Session 2008-09, Rebuilding the House,
HC1117 paras 57-59. Back
Secretary of State for the Home Department v MB 
UKHL 46,  1 AC 440 and Secretary of State for the Home
Department v AF and others  UKHL 28,  3 WLR 74. Back
See e.g., HC Deb, 11 June 2008. Cols 357-363; HL Deb, 8 July 2008,
cols 671-673 Back
See e.g. Baroness Hale who said, above n. 20 at para. : "If
the Government adjudges that it is necessary to impose serious
restrictions upon an individual's liberty without giving that
individual a fair opportunity to challenge the reasons for doing
so, as to which it is not for us to express a view, then the Government
will have to consider whether or not to derogate from art 6 of
the Convention." Back
Twenty-first Report of Session 2007-08, Counter-Terrorism Policy
and Human Rights (Eleventh Report): 42 Days and Public Emergencies,
HL 116/HC 635 at para. 50; Twenty-ninth Report of Session 2007-08,
A Bill of Rights for the UK?, HL 165-I/HC 150-I at paras
240-243; Thirtieth Report of Session 2007-08, Counter-Terrorism
Policy and Human Rights (Thirteenth Report): Counter-Terrorism
Bill, HL 172/HC 1077 at paras 89-109. Back