Memorandum submitted by Liberty
Established in 1930 as the "National Council
for Civil Liberties", Liberty began its long tradition of
research on anti-terrorist legislation with its first commentary
on special powers in Northern Ireland in 1936.
Liberty is grateful for the opportunity to contribute
to the Committee's deliberations and does so with the following
three principles in mind:
The horrific events of 11 September
are of the gravest concern.
Any legislative response must be
rational, necessary and proportionate. Ultimately, liberal democracies
do not defend their way of life by dismantling the very rights
and freedoms which distinguish them from their enemies.
Any legislation (particularly more
draconian measures) must be effective rather than counter-productive.
Do the events of September necessitate changes
in the law?
The very notion of specific "counter-terrorism
legislation" is questionable in principle. The ordinary criminal
law of this country is more than equipped to balance the competing
interests of individual rights and public protection via its mechanisms
for impugning criminal acts, attempts and conspiracies and for
allowing pre-trial detention (subject to appropriate thresholds
and other safeguards). The obvious danger of any distinct anti-terrorist
law is that of creating a second-class criminal justice system
affording lesser protections to the individual (either in terms
of the conduct for which he may be criminalized
or in the procedure under which his case will be heard).
In any event, we already have a highly developed
and recently revised body of counter-terrorism law in this country
(principally contained in the Terrorism Act 2000 and the Immigration
Acts). This sits alongside an expansive body of criminal law (including
offences over which our courts enjoy extra-territorial jurisdiction).
Some of the more notable elements of that present
The Secretary of State's power to
proscribe organisations and offences relating to association with
Extended pre-charge detention in
the anti-terrorist context.
Offences relating to inciting and
funding terrorism (terrorism being very broadly defined).
The Special Immigration Appeals Commission
("SIAC") procedure which attempts to balance national
security and natural justice concerns by allowing the sensitive
aspects of an immigration/ asylum appeal to be tested by a vetted
"special advocate" in closed session.
Exclusion provisions under the 1951
UN Refugee Convention.
Our experience is not that of counter-terrorist
experts. However we have as yet, heard nothing in government statements
pointing to specific gaps in current U.K legislation which have
been exposed by the recent U.S experience.
We are conscious of the understandable instinct
of lawyers and legislators to see amendments to the statute book
as an obvious means of achieving policy and operational outcomes.
Crucially however, legislation will not answer questions of resources
or of intelligence. Further, any legislation which alienates minority
communities, could make the task of obtaining counter-terrorist
intelligence more difficult.
Is there anything to be learnt from the experience
in Northern Ireland or is the present situation different?
There are many obvious differences between the
predicament of successive UK Governments in relation to Northern
Ireland and the threat which is currently under discussion. Nonetheless,
it seems to us that there is at least one obvious lesson to be
Injusticewhether actual or perceived
or both, can lead to the alienation and radicalisation of particular
communities. Departure by the executive from the ordinary rule
of law would seem to be one of the surest ways of sending otherwise
moderate and law abiding people into the arms of organisations
who see armed struggle as a legitimate and effective means for
the achievement of political ends.
The anti-terrorism laws in this country have
led to some of the worst human rights abuses in this country over
the last 25 years, contributed to miscarriages of justice and
have led to the unnecessary detention of thousands of innocent
people, mainly Irish. Only a tiny percentage of those detained
have ever been charged and almost without exception they could
have been detained under ordinary criminal laws.
Are the new proposals likely to be effective?
Of course, we have yet to see any draft legislation
or even policy papers. Our understanding of the proposals is based
upon a patchwork of Ministerial speeches, interviews and press
releases etc. We apologise in advance, for any misconceptions
about the detail of the Government's proposals.
However, in our view, some of the principal
proposals (and the most controversial measuresas we understand
them) are unlikely to be effective. Indeed, they may be positively
counter-productive to the crucial enterprise of unifying the country
during this extremely difficult time.
Is this different to internment?
Any policy of indefinite detention based upon
suspicions of terrorist association or activity rather then criminal
conviction would be analogous to internment as commonly understood
and in particular, to internment as formerly operated in Northern
Ireland. (See earlier comments as to the likely effect on particular
Is this a proportionate response to the current
Existing legislation allows for the deportation
of non-UK citizens whose presence in our country is "not
conducive to the public good" (including on grounds of national
security). Immigrants may be detained (and have been detained
for long periods) pending examination, appeal and removal.
Some people face torture in the only country
to which they may be returned. Under Article 3 of the European
Convention on Human Rights ("ECHR") (the prohibition
on torture), these people are effectively irremovable from the
UK. However, there is nothing to prevent such people being detained,
charged and prosecuted in the UK for any number of terrorist or
criminal offences (including those over which we assert extra-territorial
Indefinite detention without the prospect or
deportation, extradition or trial (or internment) proved a particularly
inflammatory policy in the context of Northern Ireland. In our
view, it could prove even more ineffective and counter-productive
in the present context:
The current threat is potentially
posed by people from any number of nationalities (including no
doubt - some UK citizens). They will no doubt be based all over
There will be an obvious perception
that the authorities are rounding up people of the Muslim religious
faith. This could have a disastrous effect upon community relations
at a time when the Government is keen to persuade large numbers
of law-abiding Muslims in the UK and beyond, that it is not at
war with Islam.
The authorities will have to be heavily
dependent upon the intelligence of foreign governments as a basis
for suspicion and detention. Some of these governments lack democratic
and human rights credentials and some of the suspects will be
dissidents/asylum seekers. This will add to the sense of injustice.
There is no imminent threat of the
complete breakdown of civil society in the UK.
Neither the US nor any Council of
Europe country (such countries being signatory to the ECHR) appears
to have considered it necessary to adopt a policy of indefinite
Is the proposed derogation from Article 5 of the
See above and annexed
article from the New Law Journal.
A policy of indefinite detention without trial
would indeed require derogation from Article 5. However, Parliament
should view any such derogation with great scepticism. In addition
to the substantive indefinite detention issue, extreme caution
should be exercised before derogating from fundamental human rights.
This is all the more concerning so soon after the implementation
of the Human Rights Act 1998 ("HRA") and before there
has been an a real opportunity for human rights to become embedded
in the political, legal and wider social aspects of our constitutional
culture. Such a derogation could in principle, send a very negative
signal to the country as to the value which the executive places
upon constitutional rights and the rule of law. Even in the present
climate, it is hard to conceive of the US legislature countenancing
an abrogation of American constitutional rights as an appropriate
method of combating terrorism.
Can it be challenged under Article 15/ or on other
See annex as to the potential for legal challenge
in the European Court of Human Rights (under Article 15) and in
the domestic courts (on legality, rationality and proportionality
SIAC Appeals/ Judicial Review
Can access to judicial review be excluded in relation
to SIAC decisions?
Over the years, there have been various attempts
by the legislature to exclude or limit the judicial review and
appellate jurisdictions of the higher courts in relation to executive
decisions or those of lower courts and tribunals. The general
lesson to be learned from the courts treatment of such legislative
attempts is that whilst adopting considerable deference to Parliamentary
intention in terms of which is the appropriate jurisdictional
route for the challenge of administrative decisions,
the courts will not countenance ouster provisions which attempt
to prohibit all judicial scrutiny. Further, the courts are well
equipped (by the common law let alone the HRA).
In any event, Parliament should be slow to attempt
to frustrate judicial scrutiny and the rule of law, particularly
where fundamental rights are at stake and the perception of legitimacy
in administrative/executive action is all the more important.
Those who fear delayed decision-making or an over-interventionist
judiciary should remember that UK courts have a long and thriving
tradition of deference to the Government in matters relating to
national security. A UK Government might well prefer the scrutiny
of domestic courts to that of the Strasbourg court in this context.
Rejection of Asylum claims on grounds of suspected
Will the mechanism of the Secretary of State's
certificate (that X's presence is not conducive to the public
good) be of help?
The 1951 Refugee Convention effectively provides
2 grounds for denying protection which are potentially relevant
to the present context:
Article 1F provides that the Convention "shall
not" apply where a refugee has committed:
A war crime or a crime against humanity
as defined in relevant international instruments.
An act contrary to the purposes and
principles of the UN or
A serious non-political crime committed
outside the country of refuge prior to admission to the country
Article 1F is to be interpreted restrictively.
Further, in any event, this test of disapplication is far more
limited than any test of "suspected terrorism" or of
exclusion or expulsion being "conducive to the public good"
(eg on grounds of national security). Significant jurisprudence
from courts around the western world suggests both the limited
scope of the exclusion and that the burden rests upon the state
attempting to maintain the exclusion.
Secondly, Article 33(2) allows for the expulsion
of a refugee who:
May on reasonable grounds, be regarded
as a danger to the security of the country of refuge
Or who has been convicted of a particularly
serious crime in the country of refuge and constitutes a danger
to the community.
Unlike Article 1F, Article 33(2) is not mandatory.
Thus issues of proportionality (ie the threat posed by the refugee
balanced against the risk to him if expelled) must be relevant
to the legality of expulsion.
Whilst the personal certificate of the SSHD
that the expulsion of Refugee X is "conducive to the public
good" on grounds of national security may be a convenient
start to the consideration of expulsion under the state security
head. However, this cannot be the end of the matter as far as
the courts are concerned, when the public good must be balanced
against fundamental rights under the Refugee Convention.
Neither relevant article of the 1951 Convention
can override the absolute rights of a refugee under Article 3
of the ECHR not to be expelled to a country where he will face
Re: the definition of "national security"are
there national security issues going beyond those relating to
terrorism? Does this matter?
Whilst the traditional concept of "terrorism"
is highly controversial to stateless groups in particular, the
general approach of much of the international community has been
to regard classic "terrorism" in terms of violent acts
by politically motivated non-state actors aimed at influencing
states (by way of harm or threats to civilians in particular).
By contrast, any classic understanding of "national
security" will also cover threats to a state's security by
an enemy state (as in the context of war).
In our submission, the important thing is that
Parliament ensures the maintenance of the rule of law and adequate
judicial scrutiny in the present context. If this is achieved,
and the rights of individuals are adequately protected, the distinction
between state and non-state actors may not be vital in the domestic
context (though the associated controversy will no doubt continue
Will there need to be specific minimum evidence
in relation to certificates?
There can be little doubt that certificates
based upon factual assumptions (with no or scant evidence) will
not stand up to judicial scrutiny:
"...the factual basis for the executive's
opinion that deportation would be in the interests of national
security must be established by evidence."
Lord Hoffmann (at para 54 of the House of Lords
decision in SSHD v Rehman).
What are the implications of SSHD v Rehman?
Most commentators agree that in this decision,
the House of Lords has allowed a great degree of deference to
the executive in terms of:
Allowing the executive the primary
judgment as to the parameters of "national security"
and its demands.
Allowing various grounds of being
"non-conducive to the public good"
to be read conjunctively rather than disjunctively so that eg
"national security" threats may not be directly aimed
at the United Kingdom itself.
However, in the present context, it must be
remembered that the Rehman case concerned the executive's
broad powers to deport in the absence of a competing Refugee Convention
Issue or other significant concern as to fundamental rights.
It is far from safe to assume that the Courts
will take the same generous approach in an Asylum or serious ECHR
Will the new proposed offence be effective?
We are far from convinced that this new criminal
offence (aimed at speech rather than threats or harm to persons
or property) will be effective in the significant struggle to
end religious discrimination (eg by employers and institutions)
and build a cohesive and tolerant liberal society. Indeed, in
our view, the criminal law is rarely the appropriate device for
achieving such pluralistic social outcomes. In any event, the
struggle is likely to be made far harder by draconian measures
which mark out minority communities (see above).
Our understanding is of a widely held feeling
amongst minority ethnic communities that the existing offence
of "inciting racial hatred"
has often been used against the ethnic communities it was intended
In any event, the concepts of "inciting
racial hatred" and "inciting religious hatred"
are not analogous. The former is aimed at the hatred of a group
of people. The latter may be categorised by the hatred of a body
of ideas. In this respect, such a new offence could amount to
the extension of the outmoded and illiberal law of blasphemy via
the back door.
Will it be divisive?
In our view, the creation of the new offence
could be particularly divisive and counter-productive at a time
when free religious discourse (both within and between faiths)
may be more important than ever. In our view, a climate of religious
freedom and tolerance will not be created by criminal censorship.
It could be extremely dangerous to provide martyrdom for religious
extremists of whatever faith by driving their speech underground.
Further, the possibility of Muslims themselves facing prosecution
(at the complaint of other Muslims or members of other faiths)
cannot be ruled out. In any event, perceptions of prosecution
contrary to free speech would be extremely counter-productive
to the aim of social cohesion.
What are the alternatives?
It is already a crime (indictable at common
law) to solicit or incite another to commit a crime. Thus, those
who incite eg violence, harassment or damage to property of members
of particular religious groups are already breaching the criminal
law. Further, the common law has recognised "incitement"
on a fairly broad basis (eg including those who advertise products
with an obvious criminal use). If the Government has any real
concerns about the effectiveness of such prosecution, we would
advocate, consideration of resources, community liaison and if
necessary, legislating to clarify the general common law of inciting
substantive criminal offences.
Further, Parliament should take prompt action
to deal with the anomaly in our anti-discrimination law (religious
minorities being excluded from the piece-meal legislative protection
provided in relation to sex and race discrimination).
On Saturday 20 October 2001, there were sporadic
media reports that "as of mid-night (20-21 October)",
those who raised false alarms in relation to the anthrax virus
would face custodial penalties of up to seven years (as opposed
to the present custodial maximum of 6 months).
Our understanding is of Government sources briefing
newspapers on Friday 19 October as if a new law were in fact coming
into force the next day.
In our view, this action displays both a profound
disrespect for Parliamentary process and a fundamental misunderstanding
of the old common law tradition against retrospective punishment
(as now enshrined in Article 7 of the ECHR).
Article 7.1 provides that:
"No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute
an criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed."
Article 7.2 makes clear that the provision shall
not prejudice the trial and punishment of acts or omissions which
(when committed) were criminal according to the general principles
of law as recognised by civilised nations. The War Crimes Act
1991 created retrospective criminal liability under our domestic
law. However, crimes against humanity are the very types of offences
contemplated by the Article 7.2 proviso. We find it very hard
to see any basis for squaring the announcement of 20 October with
the requirements of Article 7 and the ordinary rule of law.
No doubt there may be some advisers to Government
who feel that the pre-announcement in the media may discharge
the above-mentioned obligation or mitigate any illegality in relation
to eventual sentencing. We would point out, that developments
in the military campaign in Afghanistan drowned any widespread
media exposure of this announcement. In any event, we feel sure
that the Committee will be well placed to remind the Government
of the crucial difference between the legal and constitutional
effects of media announcements as to Government legislative intention
on the one hand, and the parliamentary passage of legislation
on the other.
We have no objection to the aspiration of speeding
up the extradition process or that of allowing closer EU co-operation
in this area. However, to be taken from once's home and family
to face detention and trial far away under foreign laws (perhaps
in a foreign language) is a very serious matter. Parliament should
ensure that adequate domestic judicial safeguards (for testing
the basic evidence against an accused and the fairness of foreign
legal regimes) remain.
The Government appears to be suggesting that
those companies that provide telephone and communication systems
should keep communications information for long periods just in
case that information might be helpful in the investigation of
terrorist offences. Currently such companies collect this information
for billing purposes and destroy the material once it is no long
necessary (once the bill has been paid). This practice is in line
with the data protection principle that "personal data held
for any purpose or purposes shall not be kept for longer than
is necessary for that purpose or those purposes."
The Regulation of Investigatory Powers Act regulates
the process whereby law enforcement agencies obtain access to
this information. There is no independent check on the decision
to access material and the agency does not, for instance, need
to obtain a warrant from a court.
To require or allow this information to be stored
will violate the data protection principle and does in effect
mean that millions of innocent users of communications systems,
including email and the internet will have there private communications
information stored on the off chance that it might be of use in
the future. The absence of any adequate safeguards before this
material can be accessed by the police and others creates real
threats to privacy.
We are particularly concerned to see the report
in The Guardian (7 November 2001) that this proposal, although
promoted as a response to the terrorist threat, will not be so
In some reports it has been suggested that the
ban on the use in evidence of conversations recorded as a result
of telephone intercept warrant might be lifted. The reason that
this material cannot be used in court was because of a strict
rule imposed by the Interception of Communications Act 1985 and
re-imposed only last year in the Regulation of Investigatory Powers
Act. The apparent reason for this policy had nothing to do with
civil liberties or human rights but resulted from a fear by the
police and the Security Service that if the full extent and nature
of the use of telephone taps became known criminals and terrorists
would alter their practice and be more cautious in their use of
Liberty would not be opposed to changing this
policy provided at the same time the procedure for authorising
warrants was changed at the same time. At present authorisation
is the responsibility of the Secretary of State. We believe that
politicians should have no role in making such potentially intrusive
decisions and that the responsibility should rest with the courts.
Apart from the obvious ability of the courts to consider issues
of fairness and human rights in deliberation (especially if some
variation of the SIAC special advocate role was built in) we cannot
see how any Home Secretary can properly give the time necessary
to assess each application. The numbers of warrants, excluding
those issued on the basis of national security, issued by the
Home Secretary was over 1,400.
We believe that the UK has some of the most
draconian anti-terrorism measures anywhere in the Western World
and further measures are likely to violate fundamental principles,
be counter-productive in the long term and at the same time are
unlikely to be effective. We would therefore urge caution before
new laws are put in place. Any new proposals should be subject
to proper consideration by Parliament and should not be rushed
through. Lastly we believe that such proposals should be time
limited with "sunset clauses" and should create systems
for an independent review of the measures by an independent person
of integrity respected within the human rights community.
59 eg guilt by association such as by membership of
a proscribed organisation. Back
eg reversing the burden of proof, national security certificates
Including murder, offences on aircraft, torture and many others. Back
Sections 3 and 11-13 of the Terrorism Act 2000. Back
Section 41 of and Schedule 8 to the Terrorism Act 2000. Back
Section 1 of the Terrorism Act 2000. Back
The Special Immigration Appeals Commission Act 1997. Back
Not printed. Back
See eg R v DPP, ex p Kebilene (HL) 28 October 1999 as
to judicial deference to section 29(3) of the Supreme Court Act
As to attempted ouster of JR, see Anisminic v Foreign Compensation
Commission  2.A.C.147 and R v SSHD, ex p Fayed 
1WLR. As to overcoming restrictions upon statutory appellate jurisdiction
in the context of human rights, see eg R v Lichniak v Pyrah
(Divisional Court/Court of Appeal-Crim Division) 2 May 2001. Back
68 See UNHCR Handbook, "Macdonald's Immigration Law and Practice"
(5th Edition 2001, pp 523 et seq.) and Goodwin-Gill-"The
Refugee in International Asylum Law" (2nd Edition 1996). Back
A ground for deportation under section 3(5) of the Immigration
Act 1971 (as amended), or exclusion under the Immigration Rules. Back
As to the Courts ability to scrutinize the balance between public
policy and human rights whilst respecting the role of elected
Government, see eg Brown v Stott  2WLR 817 and R
v SSHD, ex p Daly  2 WLR 1622. Back
 UKHL 47 (11 October, 2001). Back
eg "national security", "the relations between
the UK and any other country" and "other reasons of
a political nature" under section 15(3) of the Immigration
Act 1971. Back
Section 18 of the Public Order Act 1986. Back
Our emphasis. Back