Select Committee on Delegated Powers and Deregulation Twelfth Report

Memorandum by JUSTICE

I.  Introduction

  1.  JUSTICE, the all-party law reform and human rights organisation, is the British section of the International Commission of Jurists. For many years, it has had a particular interest in criminal justice and procedures, as a result of many years of work on miscarriages of justice. It is now assisting government, public authorities such as the police, practitioners and non-governmental organisations to prepare for implementation of the Human Rights Act.

  2.  JUSTICE accepts that, in the context of terrorist activity, there is an imperative to protect public safety that may, on occasion, require special measures. JUSTICE also accepts that the majority of the provisions in the Terrorism Bill do on their face comply with the European Convention on Human Rights (ECHR). However, we do have concerns that the powers envisaged in the Bill could be exercised, or implemented, in breach of the Human Rights Act (HRA).

  3.  The purpose of this paper is to highlight a number of key areas in the Terrorism Bill where serious issues are raised in relation to compliance with the HRA, and with the substantive rights in the ECHR which the HRA incorporates. It is JUSTICE's view that, in the absence of amendments to the Bill, the section 19 statement made in relation to it will need to be reconsidered.

  4.  JUSTICE's submissions are based in part upon an advice received from Professor Conor Gearty on the Consultation Paper Legislation Against Terrorism and two separate legal opinions received from Tim Owen and Nadine Finch, both barristers at Doughty Street Chambers. These notes and the advice, and a note prepared by JUSTICE on relevant Article 10 and 11 jurisprudence, are available from JUSTICE's office and have been sent to the whips' office and to the Clerk of the Delegated Powers and Deregulation Committee [not printed].

Inquiry into Legislation Against Terrorism 1996

  5.  Lord Lloyd of Berwick concluded in Inquiry into Legislation Against Terrorism 1996[17] that permanent anti-terrorist legislation was necessary. He recognised, however, that the creation of permanent measures, which did not accord suspects their usual rights and created offences which were additional to existing criminal ones, could breach human rights standards. He therefore adopted four principles which he believed would need to be adhered to in creating such legislation. These were:

  • that permanent anti-terrorist legislation should approximate as closely as possible to ordinary criminal law and procedure;

  • that it should create additional offences and powers only where necessary to meet an anticipated threat, and should balance the need for security with respect for individual rights;

  • that it should impose additional safeguards alongside additional powers;

  • that it should comply with the UK's international obligations.

    JUSTICE endorses these principles.

Section 19 of the Human Rights Act

  6.  Under section 19 of the Human Rights Act 1998, which is already in force, the relevant Minister is under a duty to make a human rights statement on a Bill before Second Reading. The Home Secretary has made a statement under section 19(1)(a) indicating that in his view the provisions of the Terrorism Bill are compatible with Convention rights. It would seem clear therefore that it is the Government's intention that this legislation and its implementation should be compatible with the rights protected in the Human Rights Act 1998.

  7.  This paper focuses on four key difficulties which JUSTICE has identified in the Terrorism Bill. These are:

  • The broad definition of terrorism included in the Bill (paras.2.1-2.16)

  • The restrictions placed on freedom of expression and assembly, by clause 12 of the Bill (paras.3.1-3.12)

  • The use of reverse onus of proof clauses (paras. 4.1-4.13)

  • The extensive delegated powers granted to the Secretary of State by the Bill (paras.5.1-5.8)

II: The Definition of Terrorism

  8.  The proposed definition of "terrorism" in the Bill is wider than that employed in the Prevention of Terrorism (Temporary Provisions) Act 1989 ("PTA"). That Act stated that "terrorism" "means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear" (section 20).

  9.  The new definition in the Terrorism Bill will apply to terrorism connected to matters in Northern Ireland, international terrorism and, for the first time, actions by domestic groups in Great Britain. Additionally, the purpose necessary for actions to be defined as terrorist has been widened beyond the merely political to include religious or ideological causes. The definition of violence has also been extended to "serious violence against any person or property".

  10.  The definition goes even further in that it also includes acts which create a serious risk to the health or safety of the public or a section of the public. This is not qualified by the need to show that violence has been used to intimidate or coerce a government, the public or a section of the public. It also includes action taken for the benefit of a proscribed organisation. There are real concerns that, for example, road protesters and those opposed to genetically modified crops will be among those whose activities are branded terrorist.

  11.  The definition has also removed the distinction usually made in the criminal law between acts which injure people and actions which damage property. The rationale behind such a distinction is the deterrence of acts which threaten life. Thus crimes that injure or endanger life normally carry higher penalties than those that damage property. No such distinction is made in the definition of terrorism adopted by the present Bill. Therefore, there is a risk that there will be no incentive, under the scheme of the Bill, for a terrorist to choose targets which do not endanger other people.

  12.  One of the principal concerns about the Bill's definition of terrorism, in relation to the application of human rights standards, is that it is so broad as to lack certainty. The definition of terrorism in the Bill is crucial because it forms the basis for the application of much of the remainder of the Bill. Since the consequences of the definition are so great, it is important that the scope of the definition should be clearly ascertainable, and justifiable, so as to ensure the credibility of the legislation and its enforcement mechanisms.

  13.  In analysing the proposals contained in the Terrorism Bill against the provisions of the ECHR and the case law of the European Court of Human Rights (ECtHR), it is important to bear in mind that hitherto consideration of the laws of terrorism by the ECtHR has been concerned with particular types of political violence. The broadening of the definition of terrorism to include actions undertaken for religious or ideological causes, and the inclusion as terrorist organisations of domestic groups, is likely to put the proposed terrorist laws to even more stringent examination under the Convention, both at the ECtHR and later in domestic courts when the main provisions of the Human Rights Act 1998 come into force in October 2000.

  14.  A number of specific problems of human rights compatibility arise out of the definition of terrorism in the Bill. These include:

  • The right to liberty, under Article 5 ECHR

  • The right to privacy, under Article 8 ECHR

  • Rights to freedom of thought conscience and religion (Article 9), freedom of expression (Article 10) and freedom of association and assembly (Article 11)

Article 5, ECHR: The Right to Liberty

  15.  JUSTICE welcomes the fact that the Terrorism Bill introduces a requirement to obtain judicial agreement before detention without charge can be extended beyond a period of forty-eight hours[18]. This reflects the need to reconcile national law with the requirements of the European Convention on Human Rights[19]. However the lack of certainty in relation to the definition of terrorism and its extension to certain domestic groups will give rise to human rights challenges, despite the guarantee of judicial supervision of detention after 48 hours.

  16.  Article 5, which guarantees the right to liberty, regulates powers of arrest in relation to terrorist offences. In order to comply with Article 5(1)(c) of the Convention, an arrest must be on suspicion of committing an "offence". Where the grounds for arrest are not sufficiently specified, there may not be an "offence" such as to justify detention under Article 5(1)(c). This calls into question clause 41 (1) of the Terrorism Bill, which provides that a constable may arrest, without a warrant, a person whom he reasonably suspects to be a terrorist.

  17.  In Brogan v United Kingdom[20] a similar provision was found by the ECtHR to be compatible with Article 5(1)(c). However the facts of the case are important. The ECtHR accepted that the applicants were not simply suspected of involvement in terrorism in general (our italics) but of membership of a proscribed organisation and involvement in specified acts of terrorism, which were acts of political violence and which were offences under the law of Northern Ireland. Since Brogan, there would appear to be no power to permit the wide-ranging arrest of persons in respect of whom no specific suspicions exist.

  18.  JUSTICE considers that, as a result of the broad definition of terrorism, the grounds on which an arrest can be made, under clause 41, are too wide to ensure compliance with Article 5(1)(c). It is not clear why the arrest powers used in non-terrorist offences by police officers under the Police and Criminal Evidence Act 1984 ("PACE"), requiring the identification of a particular offence before making an arrest (ss. 24 and 25 PACE) are considered inadequate. In JUSTICE's view, clause 41 should be amended so as to require the identification of a particular offence, before making an arrest.

The Right to Privacy: Article 8, ECHR

  19.  A further problem arising out of the definition of terrorism under the Bill relates to Article 8, the right to privacy. Article 8 states that everyone has the right to respect for his private and family life, home and his correspondence.

  20.  Under Article 8(2), any interference with these rights must be "in accordance with the law" and "necessary in a democratic society". This latter phrase has been interpreted by the ECtHR as requiring a "pressing social need" and an appropriate degree of proportionality between the privacy infringement and the aim pursued by the public authority.

  21.  Both the current and the proposed laws on the investigation of terrorist funding can involve the infringement of the right to privacy of third parties and suspects and financial institutions. Under the Convention, this interference will have to be justified. Such investigations may be considered disproportionate to the end that is desired. This will be particularly so in relation to the extension of terrorist law to certain types of domestic dissent, which will bring within reach of the legislation an increased body of new suspects whose accounts will be capable of being investigated. The "pressing social need" for such investigations will be less obvious than in the past when political violence in Northern Ireland was self-evidently a problem. Equally, the proportionality of some police operations will be questionable from an Article 8 perspective where the persons being investigated do not have the same track record as the organisations that have been the traditional focus of anti-terrorism laws.

Additional Concerns under the ECHR

  22.  In addition, the definition of terrorism and its application to certain organisations may not be justifiable in relation to other human rights standards such as an individual's right to freedom of thought, conscience and religion under Article 9, freedom of expression guaranteed by Article 10 and freedom of assembly and association protected by Article 11. Furthermore, no additional safeguards have been incorporated into the Bill to counter-balance the huge potential inroad being made in the civil liberties of those at the fringes of political, religious or ideological movements, as was firmly advocated by Lord Lloyd in his report. In fact, the procedures to be employed when dealing with suspected terrorists will not even have to meet the basic standards established by PACE and its Codes of Practice.

  23.  JUSTICE is therefore concerned that the wide definition of terrorism in the Bill, coupled with its broad powers, may create human rights problems in practice. JUSTICE is concerned that the legislation is not sufficiently approximate to the ordinary criminal law and procedure and therefore there is a danger that it does not strike the right balance between the needs of security and the rights and liberties of the individual.

III: Restrictions on Freedom of Expression and Assembly Under Clause 12 of the Bill

  24.  JUSTICE's most serious concern in relation to the Terrorism Bill's compliance with the HRA is the restrictions placed on freedom of expression and assembly by clause 12 of the Bill. To this extent JUSTICE considers that the Bill is in breach of the HRA and that a section 19(1)(a) statement of compatibility cannot be safely made in respect of it.

  25.  Clause 12 of the Bill makes it an offence to organise or to speak at a meeting, in the knowledge that the meeting is to be addressed by a member of a proscribed organisation. Under Clause 12, a person commits an offence where he or she either organises or addresses a meeting, knowing that the meeting is to be addressed by a person who belongs or professes to belong to a proscribed organisation. By Clause 12(4) a meeting for these purposes means a gathering of three or more persons, whether or not the public is admitted.

  26.  A person guilty of an offence under Clause 12 is liable on conviction on indictment to imprisonment for a term not exceeding ten years, to a fine, or both. On summary conviction a person is liable to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum, or both.

  27.  To be liable to prosecution under clause 12, it is not necessary to support any terrorist cause - merely addressing or organising a meeting is enough. In JUSTICE's view, the restrictions imposed by these provisions on the freedom of expression and freedom of assembly of persons who themselves have no involvement in proscribed or terrorist organisations breach the Convention. We recognise that, in contrast, the rights of those actually involved in terrorist activity may either be legitimately removed under Article 17 ECHR, in order to prevent the destruction of the rights of others, or restricted in accordance with the grounds for restricting rights identified in the ECHR.

  28.  It may well be that clause 12 will be applied selectively so that prosecutions will not be regularly instituted in respect of persons who are not involved in or supportive of terrorist causes. However, there is nothing in the Bill itself to impose such a limitation. The threat of prosecution and substantial penalty under clause 12 will in itself hinder effective democratic debate and interfere with the freedom of expression and assembly rights of a wide range of individuals. The blanket nature of this restriction on freedom of expression and assembly and its inevitable chilling effect is at odds with the Convention requirement that any restrictions on such freedoms should be proportionate, even in the context of a terrorist threat.

Freedom of Expression: Article 10 ECHR

  29.  Article 10 guarantees the right to freedom of expression. Convention law requires that, "as a matter of general principle" the "necessity" for any restriction of freedom of expression must be "convincingly established"[21]. Furthermore, a restriction will not be compatible with the ECHR unless it is prescribed by law, pursues a legitimate aim such as the prevention of disorder or crime, and is necessary in a democratic society.

  30.  It is likely that criminal proceedings under clause 12 would be found to be "prescribed by law" and to have a legitimate aim such as the protection of national security or the prevention of disorder or crime. However, to establish that criminal charges were "necessary in a democratic society" it must also be shown that there was a "pressing social need" to restrict freedom of expression and that the action taken was a proportionate response to such a need. The courts would have to examine whether there were relevant and sufficient reasons for the restriction and whether less restrictive measures existed.

  31.  Many scenarios could lead to criminal proceedings under Clause 12 being the subject of a challenge under Article 10 of the ECHR. Five examples are noted here.

  32.  A person who belongs to the same social milieu as the members of a proscribed organisation, but does not belong to the organisation, attends a meeting of that organisation to persuade them to abandon violence as a tool for political change. He or she could be charged under Clause 12 with terrorist offences.

  33.  A government official, or a speaker from a non-governmental organisation that campaigns for human rights, addresses a public meeting knowing that the meeting is to be addressed by a person who professes to belong to a proscribed organisation. He or she could also be charged under Clause 12.

  34.  Three members of a proscribed organisation gather in private to discuss decommissioning weapons. They too could be liable to criminal charges under Clause 12.

  35.  A journalist organises an interview with a number of members of a prescribed organisation, to inform the public and contribute to debate. Under the Bill, he or she could also be liable to prosecution.

  36.  A victim of terrorist violence attends and addresses a meeting, knowing that members of the terrorist organisation will be present, in an attempt to persuade them to abandon violence, also incurring the risk of prosecution under clause 12.

  37.  In all five scenarios it may well be difficult for the State to establish that there was a pressing social need to restrict freedom of expression by bringing criminal charges, and that such charges were a proportionate response. Furthermore, the effect of a criminal charge under Clause 12 might be to create a chilling effect whereby dialogue with proscribed organisations by those committed to non-violence was discouraged for fear of criminal prosecution. The stifling of free expression on issues of public importance in this way would risk breach of the Convention[22]. Whilst, in theory, clause 12 does not entirely extinguish the freedom of expression of someone wishing to debate a terrorist-related issue, in that he or she may still express views outside a meeting with a proscribed organisation, it does seriously restrict expression rights in preventing such a person engaging in debate with members of a proscribed organisation, on issues related to terrorism or indeed even on completely unrelated issues. To this extent the right to freedom of expression is effectively extinguished.

  38.  The jurisprudence of the ECtHR clearly establishes that, even in the face of a terrorist threat, freedom of expression must be accorded a high value, particularly where political debate on matters of public interest is concerned[23]. Even in a situation such as the Kurdish conflict in Turkey, the Court has found that there is little scope for restrictions on political speech that concerns matters of public interest[24]. In particular, where restrictions are placed on the freedom of expression of those who do not themselves hold terrorist views, this may breach Article 10[25]. On the basis of the jurisprudence of the Court, it would appear that restrictions on freedom of expression, of the type put in place by clause 12, would not satisfy the requirement that any restrictions on freedom of speech be "necessary in a democratic society" and proportionate to the aims pursued.

  39.  JUSTICE considers that there is a need to remodel clause 12 in order to take account of the principle of proportionality and to adequately safeguard freedom of expression. In order to ensure the compatibility of clause 12 with the Convention, the provision would need to address the distinction between expressions of support for terrorist action or for proscribed organisations on the one hand, and expression which merely takes place in the same forum as a speaker from a proscribed organisation, on the other. In order to comply with the Convention, only the first type of speech should be liable to prosecution. In JUSTICE's view, clause 12 (3) (b) should be deleted. Clause 12 (2) (c) should either be deleted, or amended to clarify that an offence is only committed where the member of the proscribed organisation addressing the meeting uses the meeting to seek support for terrorist activity or for the proscribed organisation.

Freedom of Association and Assembly: Article 11

  40.  Further issues of the compatibility of clause 12 are raised by Article 11 ECHR, which guarantees the right to freedom of peaceful assembly and to freedom of association with others. JUSTICE considers that Clause 12 of the Terrorism Bill risks conflict with Article 11 of the Convention, since it places restrictions on the freedom of assembly as well as the freedom of expression of those speaking at meetings with members of proscribed organisations. It is clearly established in the jurisprudence of the Court that restrictions on Article 11 rights must be strictly necessary and proportionate even in a situation where there is a terrorist threat[26]. Even in such a situation, under the Convention, there must continue to be a high level of protection given to the open debate of political issues. JUSTICE considers that the restrictions on freedom of assembly contained in clause 12 have the potential to hinder political debate and freedom of assembly to an extent that would breach Article 11 ECHR.

IV: Reverse Onus of Proof

  41.  Further issues of compatibility with Convention rights are raised in relation to the provisions imposing a reverse onus of proof on defendants, in clauses 56 and 57 of the Bill. These clauses, which create possession offences, allow a person to be convicted despite the existence of reasonable doubt as to guilt. Clauses 56 and 57 of the Bill are respectively based on Sections 16A and 16B of the Prevention of Terrorism (Temporary Provisions) Act 1989 ("PTA"), which were added to the PTA by the Criminal Justice and Public Order Act 1994[27].

Article 6(2): The Presumption of Innocence

  42.  Article 6(2) of the Convention states that everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law. As a consequence of this provision, the burden of proof is on the prosecution[28], with two qualifications. Firstly, where a defendant seeks to establish a specific defence, the burden of proof may be transferred to the defendant[29]. Secondly, certain rules under which presumptions of law or fact operate are not incompatible with the ECHR[30]. However, the ECtHR has ruled that states are required to keep such presumptions within "reasonable limits" which take into account the importance of what is at stake, and which maintain the rights of the defence[31].

  43.  In respect of the standard of proof required in criminal proceedings, the ECtHR has not stated explicitly that the standard required by the ECHR is that of proof beyond reasonable doubt. However, in Barbera, Messegue and Jabardo v Spain[32], the ECtHR noted that "any doubt should benefit the accused". Further, in Goodman International and Goodman v Ireland[33], the Court rejected the suggestion that a Tribunal of Inquiry involved the determination of criminal charges because the tribunal had not stated that the burden of proof throughout the proceedings would be that for a criminal trial, namely beyond reasonable doubt.

Clause 56

  44.  By Clause 56 (1) of the Terrorism Bill, it is an offence to possess articles in circumstances which give rise to a reasonable suspicion that their possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism. By Clause 56 (3) the presence of the accused at any premises at the same time as such an article is enough to prove possession of it, unless the accused can prove lack of knowledge or control. It is also enough to prove possession if an article is on premises of which the accused is the occupier or which he uses otherwise than as a member of the public unless, again, he can prove he had no knowledge or control.

  45.  There is a presumption of guilty intent under Clause 56 (1) and (3). What is required for proof, prior to the raising of a defence, is possession, widely defined in subsection (3), and then further "reasonable suspicion" of a terrorist purpose. This does not approximate to the criminal standard of proof beyond reasonable doubt. This is especially problematic in the context of the broad definition of terrorism in the Bill, which could lead to a departure from the normal criminal standard of proof in a significant number of cases.

  46.  By subsection (2) it is a defence for a person to prove that the item possessed was not for purposes connected with an act of terrorism. Here the burden of proof is on the accused to prove his defence on the balance of probabilities. Thus in circumstances where the prosecution has established possession on grounds of a presumption of fact under subsection (3) and has made out that there is reasonable suspicion of a particular purpose for possession, the accused could attempt a defence which raises a reasonable doubt as to the fact or purpose of possession. In a standard criminal trial this would entitle the defendant to an acquittal. However, under this clause, the defendant has to prove that there is more than a reasonable doubt, namely that his defence succeeds on the balance of probabilities. Otherwise he has not adduced sufficient evidence to satisfy the standard needed to succeed.

  47.  Both subsections (1) and (3) involve presumptions of fact and law as to what will enable possession to be established and what is required to establish the purpose of such possession. As was noted above, the compatibility or otherwise of provisions with Article 6(2) depends on whether the presumptions of fact are within "reasonable limits" and take into account the importance of what is at stake and which maintain the rights of the defence.

Clause 57

  48.  By Clause 57 (1) it is an offence to collect or record information of a kind likely to be useful to a person committing or preparing an act of terrorism, or to possess a document or record containing information of that kind. Thus the fact of possession establishes the offence if it is judged as likely to be useful to someone committing or preparing an act of terrorism. This test for purpose is very opaque. Material caught by its provisions could include lists of people and details of where they live and work, a matter of concern for journalists.

  49.  The statutory defence under Clause 57 (3) states that the defendant has to provide a reasonable excuse for his action or possession. Thus it would appear that the prosecution do not have to discharge their burden of proving their case to the criminal standard but only on the balance of probabilities. Furthermore, there must be concern that the term "likely to be useful to a person committing or preparing acts of terrorism" is open to very broad interpretation, which could raise difficulties in relation to Article 6(2). Again, the broad definition of terrorism included in the Bill must increase the potential of this provision to interfere with human rights.

  50.  The compatibility of Sections 16A and 16B of the PTA, the precursors of Clauses 56 and 57, with Article 6(2) was considered in R v Director of Public Prosecutions, Ex Parte Kebilene and Others[34]. In the Divisional Court it was held that if a provision of domestic legislation, properly construed, infringed the presumption of innocence, then any conviction based on that provision was likely, judged by the yardstick of the ECHR, to be unsafe. The Divisional Court found that both sections of the PTA under consideration undermined, in a "blatant and obvious" way, the presumption of innocence.

  51.  The House of Lords did not reach a conclusion on the issue of reverse onus clauses, when overturning the decision of the Divisional Court on unrelated grounds. However, two judgments did address the issue of the compatibility of reverse onus clauses with Article 6. Lord Cooke and Lord Hope both drew a distinction between shifting the "persuasive burden" (the threshold test for guilt or innocence) and shifting the "evidential burden" (the necessity to produce evidence in support of a case). Section 16A, on its face, appears to shift the persuasive burden of proof. Lord Cooke considered that the Human Rights Act might require such provisions to be read as evidential burdens in order not to undermine the presumption of innocence. Lord Hope considered that the question of compatibility, and the balance to be struck between the protection of the individual and of society, would depend upon the facts of each case. He found that the specific issue of the compatibility of the section 16A provisions was still open to argument.

  52.  It is clear that these reverse onus clauses raise important human rights issues which the courts will need to consider on the facts of cases brought under these provisions. It is also clear that such clauses, and the way that they are implemented, carry serious risks of breaching the presumption of innocence and being found in breach of the HRA.

  53.  JUSTICE is of the view that the presumptions of guilty intent contained in clauses 56 and 57 may, in practice, raise difficulties in regard to Article 6(2), and are likely to be the subject of human rights challenges. It is JUSTICE's view that these clauses, in their present form, should therefore be removed from the Bill.

V: Delegated Powers

  54.  One prominent feature of the Terrorism Bill is the considerable delegated power given to the Secretary of State. The extent of these powers introduces a significant uncertainty as to the way in which the Terrorism Bill will operate in practice. Given the extent of the delegated powers in the Bill, and the lack of constraints on these powers in certain circumstances, their potential for breach of Convention rights contained in the Human Rights Act is increased. JUSTICE considers that in order to ensure that the Bill is fully human rights compliant, parliamentary oversight of the delegated powers in the Bill should be extended, and the scope of certain of the powers should be circumscribed.

  55.  Many of the delegated powers under the Bill are subject only to a negative resolution procedure of either House of Parliament under clause 122 of the Bill. Regulations that may be made under this procedure include regulations under clause 72 relating to the time limits applying in preliminary proceedings for scheduled offences. This includes regulations determining maximum periods for holding a suspect in custody, and making provision as to bail, matters which have substantial human rights implications. Regulations may also be made, without prior parliamentary scrutiny, regarding the right of a suspect to have a solicitor present, in the course of an interrogation relating to a terrorist offence (Schedule 7, para.16)[35]. JUSTICE considers that, where measures may have human rights implications, and particularly where the liberty of the subject is involved, they should, as a matter of principle, be subject to a positive resolution procedure. In the light of this, the Terrorism Bill should be amended to significantly limit the number of delegated powers subject to a negative resolution procedure.

  56.  Secondly, in regard to those orders and regulations which are subject to prior approval by both Houses of Parliament under clause 122 (3), all but one of these may be made without the approval of parliament where "the Secretary of State is of the opinion that it is necessary by reason of urgency" (clause 122 (4)). The order must contain a declaration by the Secretary of State of his opinion as to urgency, and it will cease to have effect after a period of 40 days, unless an approving resolution is passed by both Houses of Parliament during the 40 day period.

Delegated Powers under Clause 96

  57.  One of the order-making powers which is normally subject to parliamentary approval, but which may be made without such approval in cases of urgency, is the power contained in clause 96. By this section "[t]he Secretary of State may by regulations make provision for promoting the preservation of the peace and the maintenance of order" (clause 96 (1)) and "[t]he regulations may authorise the Secretary of State to make orders or give directions for specified purposes" (clause 96 (2)). Under clause 96 (3) and (4), it is an offence to contravene or fail to comply with regulations or orders made under the section, punishable on summary conviction by six months' imprisonment, or a fine.

  58.  This provision would allow the Secretary of State to make sweeping regulations, and create criminal offences, where he considered that there was "urgency", without parliamentary approval or scrutiny, the regulations remaining valid for a period of 40 days. The powers under clause 96 are not confined by even the broad definition of terrorism included in the Bill, or by reference to proscribed organisations. If regulations were to authorise the Secretary of State to give directions for the purpose of "promoting the preservation of the peace and the maintenance of order" there might well be an issue as to whether any restriction this involved on qualified Convention rights, such as the right to freedom of expression, to freedom of assembly or to privacy, would be sufficiently precise to be "prescribed by law." Care would also have to be taken to ensure that any limitations on rights involved in such regulations were strictly necessary and proportionate.

  59.  There is a further issue regarding the creation of criminal offences under clause 96 (3), and compliance with Article 7 ECHR. Article 7 ECHR forbids retroactive criminal offences and penalties, but has also been held, more generally, to incorporate the principle of legality, that a person should only be convicted and punished on the basis of law. This principle is seen as implicit in the idea of the rule of law, referred to in the preamble to the Convention. Article 7 has been held to require that offences be clearly defined in law, so that the individual must be able to ascertain, from the wording of the relevant provision, or from the courts' interpretation of it, what acts and omissions will make him liable to criminal penalties[36]. Clause 96 of the Bill would certainly permit the creation of offences that would fall short of the standard of specificity required by Article 7. Where an offence is created by order of the Secretary of State, based on general regulations, it is likely that it would not reach the standard of precision required by the standard of legality.

  60.  Clause 95 may also give rise to conflicts with Article 5 of the Convention, which sets out the right to liberty, and prohibits arbitrary detention. Clause 96 (4) allows for imprisonment for a period of six months, on conviction for any offence created under clause 96 (3). Where the regulations made under clause 96 were general in their wording, and where offences were then created and sentences of imprisonment imposed, on foot of orders or directions made by the Secretary of State, this might amount to arbitrary detention such as would breach Article 5.

  61.  JUSTICE considers that, in the context of permanent anti-terrorist legislation, the powers to make delegated legislation under this provision are too broad and ill defined, and therefore risk infringing Convention rights. This would pose a particular danger where such powers were exercised under the urgency provision.

VI: Conclusions

  62.  In conclusion, JUSTICE considers that several areas of the Bill raise significant human rights difficulties. In particular, JUSTICE is concerned that:

  • The broad definition of terrorism in the Bill means that the implementation of the Bill could, in practice, give rise to breaches of the human rights standards contained in the Human Rights Act.

  • The restrictions on freedom of expression and assembly imposed by Clause 12 represent a clear breach Convention rights, which will necessitate further consideration of the section 19 statement of compatibility that has been made in respect of the Bill.

  • The inclusion of reverse onus of proof clauses in the Bill and their implementation in practice raises difficulties in regard to Article 6(2) and may give rise to human rights challenges.

  • The delegated powers granted by the Bill are too broad, and are subject to insufficient parliamentary scrutiny.

17   (Cm 3420) Back

18   Clause 41 and Schedule 7 of the Terrorism Bill Back

19   Brogan v United Kingdom (1988) 11 EHRR 117 Back

20   (1989) 11 EHRR 117 Back

21   Sunday Times v UK (No 2) (1992) 14 EHRR 123 Back

22   Measures creating a "chill" effect on freedom of expression have been held to breach the ECHR, in the absence of exceptional circumstances: Goodwin v UK(1996) 22 EHRR 123; Jersild v Denmark (1994) 19 EHRR 1 Back

23   Surek v Turkey (No 2) 24122/94, 8 July 1999; Incal v Turkey, 22878/93, 9 June 1998 Back

24   Ceylan v Turkey, 23556/94 July 8, 1999; the court has found in some cases that restrictions on freedom of expression are permissable within a state's margin of appreciation in the face of a terrorist threat: but this has been in the context of particularly virulent speech amounting to hate speech: see Surak v Turkey (No 1) 26682/95, 8 July 1999; Surek v Turkey (No 3), 24735/94, 8 July 1999. Back

25   See Surek and Ozdemir v Turkey 23927/99, 8 July 1999. Back

26   United Communist Party of Turkey v Turkey; 26 EHRR 121; Socialist Party v Turkey 21237/93, 25 May 1998. Back

27   Sections 16A and 16B were in turn based on Sections 30 and 31 of the Northern Ireland (Emergency Provisions) Act 1991. Back

28   Barbera, Messegue and Jabardo v Spain (1989) 11 EHRR 360. Back

29   Lingens v Austria (1981) 26 DR 171. In that case the European Commission of Human Rights also looked at the legal purpose behind the defence before deciding that there has been no violation of Article 6(2). Back

30   Salabiaku v France A/141-A (1991) 13 EHRR 379. Back

31   ibidBack

32   (1989) 11 EHRR 360. Back

33   (1993) 16 EHRR CD 26. Back

34   Judgment was handed down on 30th March 1999 in the Queen's Bench Divisional Court and then on appeal in the House of Lords, on 29th October 1999. Back

35   In contrast, codes of practice issued under PACE are subject to an affirmative resolution procedure. Back

36   Kokkinakis v Greece A 260-A (1993) Back

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