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


Conclusions and recommendations


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

1.  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. (Paragraph 15)

2.  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. (Paragraph 17)

Availability of information about the scale of the threat

3.  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. (Paragraph 23)

4.  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. (Paragraph 24)

A statutory framework for derogation

5.  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. (Paragraph 27)

The meaning of complicity

6.  We sought the Government's view as to whether a range of different situations would amount to complicity in torture, as defined in international law, if the relevant facts were proved. The Government refused to answer those questions in its response to our Report and the Minister's evasive replies maintained that refusal. These important questions therefore remain unanswered by the Government. (Paragraph 35)

7.  It seems to us that the Minister (in his evidence to us), the Director General of MI5, and both the Home and Foreign Secretaries, in their recent public statements, come very close to saying that, at least in the wake of 9/11, the lesser of two evils was the receipt and use of intelligence which was known, or should have been known, to carry a risk that it might have been obtained under torture, in order to protect the UK public from possible terrorist attack. This is no defence to the charge of complicity in torture. (Paragraph 38)

8.  We cannot find any legal basis for the Government's narrow formulation of the meaning of complicity in its Response to our Report on Complicity in Torture. The Government's formulation of its position changes the relevant question from "does or should the official receiving the information know that it has or is likely to have been obtained by torture?" to "does the official receiving the information know or believe that receipt of the information would encourage the intelligence services of other states to commit torture?" As we made clear in our earlier report, 'complicity', in the sense used in the relevant international standards, does not require active encouragement. The systematic receipt of information obtained by torture is a form of aquiescence, or tacit consent, and the relevant state of mind is whether the official receiving the information knew or should have known that it was or was likely to have been obtained by torture. (Paragraph 39)

9.  The Government's formulation appears to us 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. (Paragraph 40)

10.  We regret to say that, despite the clear intent of our questions, the Government's answers leave us no clearer about whether the ISC has been provided with all versions of the guidance which was current at the time of the various allegations of complicity, which date back to 2002. We look to the ISC to provide clarification on this point. (Paragraph 43)

11.  We welcome the Prime Minister's commitment to publish the new guidelines which will be drawn up by the Intelligence and Security Committee. However, the Prime Minister's statements on this issue, from his first written statement on 18 March 2009 on, are in the present tense. He draws a clear line between the new guidance, which will come out of the process that he has set in motion, and the old guidance, which the Government has decided not to publish. No convincing justification has been offered for the decision not to publish the previous guidance. As we have pointed out before, in the United States, the Obama administration has put into the public domain significant Justice Department memos, including legal advice, about matters as sensitive as interrogation techniques. In our view, there can be no justification for not publishing the guidelines that were in place at the time the alleged complicity in torture took place. In order to learn lessons for the future, as well as to ensure proper accountability for past wrongs where appropriate, it is essential that the earlier guidance be published. We also repeat our earlier recommendation that the relevant legal advice also be made public. The Government has not convincingly explained what makes the UK different from the United States, where the legal advice has been published. (Paragraph 45)

The urgent need for an independent inquiry

12.  To the extent that the analysis in the letter of Jonathan Sumption QC draws attention to the inherent limitations of litigation as a means of inquiring into a wider systemic problem, we agree. It powerfully makes the case for an independent inquiry into these grave matters, which would not be constrained from looking at the wider issues in the way that the court adjudicating on Binyam Mohamed's claims inevitably is. In our view, the case for setting up an independent inquiry into the allegations of complicity in torture is now irresistible. (Paragraph 51)

The implications of recent court judgments

13.  The Government's response to the A and AF judgments suggest that it considers itself free to press on with the use of secret evidence and special advocates in the other contexts in which they are used, without pausing to take stock of the wider implications of these significant rulings. Although the Government says that it is considering whether changes to the Parole Board's procedures are needed, we have not seen any evidence to suggest that the Government has in fact considered the implications of the judgment of the European Court of Human Rights in A v UK for all the other contexts in which special advocates and secret evidence are used. We recommend that the Government urgently conduct a comprehensive review of the use of secret evidence and special advocates, in all contexts in which they are used, in light of the judgments of the European Court of Human Rights and the House of Lords, to ascertain how often they are used and whether their use is compatible with the minimum requirements of the right to a fair hearing as interpreted in those judgments, and to report to Parliament on the outcome of that review. (Paragraph 60)

Keeping law accessible

14.  We are not satisfied that the Minister's answer meets the special advocates' concerns about the difficulty of distilling the relevant principles from closed judgments, or about the necessary accessibility of the law. We recommend that the Government include arrangements for law reporting in the review of the use of secret evidence that we have recommended above. (Paragraph 62)

Is the power to detain for up to 28 days still necessary?

15.  This commitment to review the cases of those detained for more than 14 days in relation to the Heathrow bomb plot case has not been fulfilled. 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, in order to ensure that Parliament is properly informed about the operation of this power in practice when it debates whether it should be renewed in June this year (Paragraphs 64 and 66).

Adequacy of procedural safeguards on extension of pre-charge detention

16.  We recommend that any Memoranda of Understanding or specific protocols designed to ensure that the police inform and consult appropriate CPS lawyers well before arrests take place [in terrorism cases] are made publicly available for scrutiny. (Paragraph 74)

17.  We recommend that training be provided to police officers as recommended by Lord Carlile and that such training should expressly cover the effect of Article 5 ECHR on detentions under the Terrorism Act 2000. (Paragraph 75)

18.  In view of our previous, consistently held concerns about the adequacy of the procedural safeguards surrounding the extension of pre-charge detention, which are confirmed by Lord Carlile's report, we recommend that:

(1) Schedule 8 of the Terrorism Act 2000 is amended to make clear that the extension judge must apply an evidential test when deciding whether or not to extend pre-charge detention; and (Paragraph 0)

(2) Code H of the PACE Codes of Practice be amended to explain to police why Article 5 ECHR is relevant to extensions of pre-charge detention and what its requirements are, and to make clear that continued detention of terrorism suspects is likely to become unlawful if the suspects are not told clearly the offences they are suspected of committing and the reasons for the suspicions leading to their arrests. (Paragraph 77)

19.  We also recommend that, in the absence of any accessible report of the extension judge's reinterpretation of Schedule 8 of the Terrorism Act 2000, the Crown Prosecution Service adopt clear guidance about when extension should be sought, reflecting that interpretation. (Paragraph 78)

Draft Bill on 42 days

20.  We recommend that the Government withdraw its draft Bill [to permit 42 days pre-charge detention for terrorism offences] 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. (Paragraph 81)

Alternatives to extended pre-charge detention

21.  We remain of the view expressed in our earlier reports that bail ought in principle to be available in relation to terrorism offences. Whether it is granted in any particular case, of course, will be a matter for a court to determine. The range of terrorism offences is now so broad that many people arrested under the Terrorism Act are arrested on suspicion of some involvement at the periphery of terrorist-related activity. (Paragraph 86)

22.  Views are clearly divided on whether bail ought to be available, including within the police service. While ACPO is opposed to bail being available, the police officers we spoke to at Paddington Green police station in 2006, who deal with terrorism suspects routinely, were in favour. We recommend that the Government hold a full consultation on whether bail should in principle be available in relation to terrorism offences. (Paragraph 87)

23.  It has become increasingly clear to us that the roadblock to progress [in allowing intercept material to be used in court as evidence] is certain of the operational requirements which were stipulated by the Chilcot Review. In particular, the insistence on ongoing agency discretion over the retention, examination and transcription of intercept material (the fourth and fifth operational requirements) makes a legally viable regime impossible given the clear requirements of Article 6 ECHR. (Paragraph 98)

24.  We welcome the fact that the advisory group is continuing to explore ways of allowing intercept to be admitted as evidence, but unless these two operational requirements are revisited the next stage of the review is, in our view, already doomed to failure. We do not think the Government can be surprised by the decision of the European Court of Human Rights in Natunen v Finland: it has long been clear that Article 6 ECHR requires a full retention regime or judicial control over what may be discarded. We understand the agencies' anxieties about ceding their discretion in favour of judicial control, but, as we have seen in other contexts, this is an inevitable consequence of the agencies engaging with legal processes. In our view, the rule of law requires no less. (Paragraph 99)

25.  We do not see any difficulty in principle with independent judicial control over what material may be discarded. We therefore recommend that the fourth and fifth operational requirements of the Advisory Group of Privy Counsellors (requiring ongoing agency discretion over the retention, examination and transcription of intercept material) be revisited in the next stage of its work. Otherwise, we are concerned that the intelligence and security services continue to exercise a de facto veto over this beneficial reform by stipulating pre-conditions which are impossible to meet. (Paragraph 100)

Impact on communities

26.  We are disappointed that this important information [on the impact on communities of 28 day pre-charge detention] was not made available before the parliamentary debates on the renewal of the control orders regime. As we observed in our report on that subject, the impact of control orders on the communities of those affected is one of the most controversial aspects of those measures, with many people believing that the impact is so severe and disproportionate that the use of control orders is counterproductive. (Paragraph 104)

Parliamentary accountability

27.  We repeat our earlier recommendations about reform of the ISC to make it a proper parliamentary committee, with an independent secretariat, independent legal advice and access to an independent investigator. (Paragraph 110)

28.  Placing human rights at the heart of the Government's National Security Strategy is easy to say, but it has to find institutional expression if it is to be meaningful. We 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. (Paragraph 113)

The Independent Reviewer of Terrorism legislation

29.  We repeat our earlier recommendations that the post of statutory reviewer should be appointed by Parliament and report directly to Parliament. We also recommend that the post should be limited to a single term of five years. (Paragraph 115)

Conclusion

30.  The question is not whether counter-terrorism legislation is needed at all, but whether the counter-terrorism legislation that we have got is justified and proportionate in the light of the most up to date information about the nature and scale of the threat we face from terrorism. What is needed is not consolidation, but a thoroughgoing, evidence-based review of the necessity for, and proportionality of, all the counter-terrorism legislation passed since 11 September 2001. That review should be carried out in the light of evidence of how it has worked in practice and the reasons why it is said to remain necessary and proportionate in the circumstances in which we find ourselves today. (Paragraph 118)

31.  Whatever precise form the review body might take, in our view, the case is made out for a fundamental parliamentary review of the necessity and proportionality of all counter-terrorism laws passed since 2001. We recommend that this be treated as an urgent priority by the next Parliament. (Paragraph 120)


 
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