Select Committee on European Scrutiny Twenty-Fifth and Twenty-Sixth Report


INTERNAL SECURITY AND INTERNATIONAL PROTECTION COMMITMENTS


(23084)
15520/01
COM(01)743

Commission working document — the relationship between safeguarding internal security and complying with international protection obligations and instruments.


Legal base:
Deposited in Parliament: 17 January 2002
Department:Home Office
Basis of consideration: Minister's letter of 25 March 2002
Previous Committee Report: HC 152-xx (2001-02), paragraph 10 (6 March 2002)
To be discussed in Council: None planned
Committee's assessment:Politically important
Committee's decision:Not cleared; further information requested



Background

  5.1  This working document is the Commission's direct response to the request[20] by the Extraordinary Justice and Home Affairs Council Meeting of 20 September 2001 that the Commission should examine urgently the relationship between safeguarding internal security and complying with international protection obligations and instruments.

  5.2  When we considered the paper in March we recognised that it was simply a working document. However, as we had serious concerns about some of the issues raised in the document, we kept it under scrutiny and asked the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) for her views.

The Minister's letter

  5.3  The Minister begins with some general points about the document, saying:

    "I believe we need to ensure that we are doing all we can to prevent abuse of our protection systems by individuals who present a risk to our community and I consider that the Commission paper is a helpful tool in our ongoing discussions in this area. I agree that Statewatch go too far in their criticism of the Working Document but I do not share your impression that the Commission is seeking to 'find a way round' some of the Articles of the European Convention on Human Rights (ECHR). As I understand it, the Commission is not suggesting that the existing legal protection commitments are necessarily inappropriate but rather that Member States do not always apply them in a rigorous enough way to adequately protect the asylum and subsidiary protection systems from abuse. I support the Commission and the UNHCR[21] in seeking to encourage a better and more uniform implementation of the exclusion clauses of the Geneva Convention and agree that further discussion and exchange of best practice with our European partners would be helpful.

    "In your report you recognise that there is an inevitable tension between safeguarding internal security and honouring international protection commitments. At a time of heightened security concerns I believe that we do need to review the legal structures already in place but we should do so primarily to ensure that they are being implemented properly and to find the most effective way of using them at a European level. We also need to ensure that new European legislation contains adequate safeguards to prevent any claim for international protection being abused by criminals and terrorists."

  5.4  The Minister then addresses our particular concern about the Commission's suggestion that there might be a "balancing act" between individual protection needs and the security interests of a state in relation to the prohibition in Article 3 ECHR[22] against torture or inhuman or degrading treatment or punishment. We asked the Minister whether she shared the Commission's view, and, if so, to explain her reasons for so doing.

  5.5  The Minister replies:

    "The 'balancing act' between individual protection needs and the security interests of a Member State that the Commission refers to in relation to Article 3 ECHR is highlighted specifically as being a matter for the European Court of Human Rights. I do not think the Commission is suggesting that we should be seeking to avoid any obligations under Article 3 but neither does it rule out the potential for future reinterpretation.

    "Without seeking to bypass the core principles of the ECHR, which remain undisputed, I consider that it is vital that we minimise the scope for its misuse and maintain the credibility of our protection systems. I therefore share the Commission's interest in scrutinising future rulings by the European Court and remain open to discussion with European partners on the potential merits of examining any scope for reinterpretation of the Article 3 requirements. The threshold for treatment contrary to Article 3 is a high one and it is important that the Court recognises this when considering whether a State would be in breach of its ECHR obligations in removing a person reasonably suspected of being involved in terrorism.

    "I acknowledge that it is unacceptable to return anyone to face death or torture but believe it may be useful to examine ways of safeguarding Article 3 protection outside the UK. For example, by obtaining robust, verifiable assurances from a receiving country as to the future well being of a terrorist or serious criminal deported there. Moreover, in cases where removal is not possible it remains open to Member States to grant conditions of stay to such people which are less generous than terms granted to others."

Conclusion

  5.6  We do not find the Minister's letter reassuring.

  5.7  Of course we share her desire to prevent abuse of the UK's protection systems by individuals who present a risk to the community. We also agree that further discussion and exchange of best practice with our European partners on the implementation of the exclusion clauses of the Geneva Convention would be helpful, especially if the UNHCR were involved.

  5.8  We cannot, however, accept the concept of a "balancing act" in relation to Article 3 ECHR. We repeat our reminder that Article 15 ECHR expressly provides that no derogation may be made from Article 3 ECHR, even in time of war or other public emergency threatening the life of the nation. Moreover, Article 3 is expressed in absolute terms and does not allow for any exceptions or qualifications. We are therefore concerned by the Minister's comments about "examining any scope for reinterpretation of the Article 3 requirements" and her suggestion that the "threshold for treatment contrary to Article 3 is a high one and it is important that the Court recognises this." These comments appear to us to be giving support to the Commission's criticisms of the Court's case-law under Article 3, which criticisms we find misplaced and tending to undermine the authority of the Court.

  5.9  With regard to the Minister's comments about sending individuals to a receiving country, we would require more detail about what she means by "robust, verifiable assurances " before we could consider this a satisfactory recourse.

  5.10  We ask the Minister to appear before the Committee to address these serious concerns and to explain further the extent to which she supports the Commission in its comments on the functioning of Article 3 ECHR.


20  Conclusion 29. Back

21  UN High Commissioner for Refugees Back

22  Article 3 ECHR provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. It does not admit of exceptions, and may not be derogated from. Article 3 ECHR also applies to the extradition or expulsion of a person who would face a real risk of exposure to inhuman or degrading treatment in the receiving state cf Soering v UK, Chahal v UK

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