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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