Joint Committee On Human Rights Second Report


The Joint Committee on Human Rights has agreed to the following Report:—



1. On 15 October 2001, the Home Secretary[4] and the Chancellor of the Exchequer[5] announced proposals to bring forward urgent measures to give the Government additional powers "necessary to counter the threat from international terrorism".[6] These announcements were, of course, made as part of the response to the terrorist attacks in Washington and New York on 11 September.[7]

2. This Committee has re-affirmed our predecessors' declared intention in the last Parliament to examine legislation brought before Parliament under the terms of reference of the Committee to examine 'matters relating to human rights in the United Kingdom'.[8] We therefore resolved at our meeting on 22 October to give the first priority in this Session to the examination of the emergency anti-terrorism measures proposed. In choosing to do so, we were conscious that it is precisely in such circumstances as the aftermath of the attacks of 11 September that the protection of human rights will come under the greatest pressure from the demands of the state (and of public opinion) for greater security, and the demands placed upon Government and its agencies to be seen to be 'doing something'.

3. The Anti-Terrorism, Crime and Security Bill was introduced to the House of Commons on 12 November. We took oral evidence from the Home Secretary on 14 November. It is published with this report.[9] We have taken the view that we should make our preliminary consideration of the legislation available as early in the Bill's proceedings as possible.

4. In this report we highlight the key areas of concern relating to the protection of human rights in the legislation which is proposed. It may not be our last word on the subject.

5. As general background to our considerations, we have borne in mind that any novel powers which are proposed should be clearly directed to words combatting a novel threat, and should not be used to introduce powers for more wide-ranging purposes which would not have received parliamentary support but for current concerns about terrorism and fear of attack. The international and national law of human rights, and in particular the provisions of the Human Rights Act 1998, for which we were appointed as the parliamentary guardians, represent core values of a democratic society such as individual autonomy, the rule of law, and the right to dissent, and these must not lightly be compromised or cast away. It is precisely those values which terrorists seek to repudiate and undermine.

6. We also note that the powers of the police and other agencies to deal with terrorism were thoroughly overhauled and extended in the Terrorism Act 2000. That Act makes it a criminal offence triable in the United Kingdom to do anything to finance, prepare for or carry out acts of terrorism (very widely defined) anywhere in the world.[10]

7. We also note that the powers of the police and the security and intelligence services to carry out intrusive and other kinds of surveillance were thoroughly re-examined and extended in the Regulation of Investigatory Powers Act 2000; and that the duties of telecommunication service providers and Internet service providers to keep information about the use of their services and make it available to investigative bodies were also re-examined and extended only last year in that Act and the Electronic Communications Act 2000.

8. The Terrorism Act 2000 also imposes extensive duties (backed by serious criminal sanctions) on financial services professionals to keep records and to disclose suspicions that assets are intended to be used to finance terrorism, and includes provisions allowing such assets to be frozen by a court order. These duties are in addition to the extensive duties imposed on everyone carrying on financial services business by the Money Laundering Regulations 1993 (as amended)[11] and the Money Laundering Regulations 2001.[12]

9. Therefore, when assessing the necessity for any new measure which may interfere with human rights, it will be important to establish what, if anything, it usefully adds to the powers already available to the state, and duties already applying to individuals and organisations, to protect and enhance the security of the state and its citizens.

The Original Proposals of 15 October

10. The Home Secretary's statement of 15 October set out some of the measures he expected to include in his Bill. These included—

11. In the event, the Bill as published[13] includes provisions relating to all these areas except the European arrest warrant and the retrospective application of penalties for hoaxes.

12. We had already considered the possibility of such retrospective legislation to increase penalties. Our preliminary conclusion was that retrospectively increasing a penalty would unavoidably violate Article 7 of the ECHR. Article 7.1 prohibits the imposition of a heavier penalty than the one that was applicable at the time the criminal offence was committed. None of the relevant qualifications to that would appear to have applied to the proposed increase in the penalty for hoaxes, and no derogation from Article 7 is possible. There is no evidence that either the Commission or the Court has in the past been prepared to introduce any flexibility into this part of Article 7. We are therefore relieved that no such proposal found its way into the Bill as introduced.

13. The European arrest warrant is not included in the Bill but powers to introduce it by way of subordinate legislation are. The proposal is currently under examination by the Scrutiny Committees of both Houses. However, Ministers from the Home Office in evidence to Sub-Committee E of the Lords European Union Committee[14] and to the Commons Home Affairs Committee[15] appeared to indicate that it would in fact be made by way of primary legislation. We would welcome it if the European arrest warrant were introduced by way of primary legislation rather than under the powers envisaged in clause 109 of the Bill. We may return to these proposals ourselves in due course.

The Bill as introduced

14. The Anti-Terrorism, Crime and Security Bill [Bill 49] was introduced to the House of Commons on 12 November 2001 and published the following day. It contains significant provisions relating to security and terrorism, but it also includes a range of unrelated proposals, some of which have previously been the subject of critical comment by this Committee.

15. On the same day (12 November) the Human Rights Act (Designated Derogation) Order 2001[16] was laid before Parliament, coming into effect the following day. This paves the way to the introduction of the measures contained in Part 4 of the Bill. We discuss it at some length below.

16. The Committee considers that the following aspects of the Bill do not raise human rights concerns which need to be brought to the attention of either House at this stage.

    -  Part 1 (terrorist property);
    -  Part 2 (freezing orders);
    -  Part 6 (weapons of mass destruction);
    -  Part 7 (security of pathogens and toxins);
    -  Part 8 (security of the nuclear industry), other than clause 76;
    -  Part 9 (aviation security);
    -  Part 12 (bribery and corruption); and
    -  Part 14 (supplemental provisions).

17. Other parts of the Bill raise human-rights issues which we consider to be more significant. They relate particularly to—

    -  the decision to give notice of a derogation from the right to liberty under Article 5 of the European Convention on Human Rights (ECHR);
    -  the proposals in Part 4 to detain certain suspected terrorists without trial and to restrict their rights to legal due process;
    -  the re-introduction in Part 3 of the Bill of provisions on information gateways which was criticised by this Committee in the last session of Parliament;
    -  the implications of the creation by Part 5 of an offence of incitement to religious hatred; and
    -  the introduction in clause 76 and Parts 10, 11 and 13 of powers (particularly for the police) which are not directed wholly or mainly towards any threat to security from terrorism.

In that order, we report on those matters and our main concerns relating to them. In order to produce the report in time for it to inform debate on the Bill in the House of Commons, we have concentrated on what seem to us to be the most pressing human rights issues. We may report more fully on some aspects of the Bill when there has been more time to consider them.

18. First, however, we consider the derogation order.

The Derogation from Article 5 of the ECHR

19. The derogation from the ECHR which is proposed relates to the treatment of certain foreign nationals who are present in the UK and whom the Home Secretary judges to be a threat to national security. The relevant provision of the ECHR relating to derogation is Article 15. It provides that—

The Government cannot therefore derogate from Article 3 without 'denouncing' the Convention as a whole and then re-entering with a reservation relating to Article 3. If it took this course, the Home Secretary would be able (under powers he already possesses) to deport foreign nationals without regard to their possible fate in the country to which they were returned. This the Government is not prepared to do. It has therefore adopted a different route, but one which still appears to necessitate derogation—but in this case the derogation is from Article 5, which is permissible under Article 15.

20. Part 4 of the Bill amends the law on immigration and asylum. It provides for the indefinite detention of certain suspected international terrorists who are not brought to trial in this country, and whom the Secretary of State would wish to deport or remove from the United Kingdom, but who for legal or practical reasons (for example, because no country can be found to take them in which they would be free from the risk of torture or the death penalty) cannot be deported or removed. Part 4 also limits the availability of judicial review and habeas corpus, providing instead a restricted appeal process.

21. These provisions raise serious issues of compatibility with the right to liberty under Article 5(1) of the ECHR, issues which the Government has chosen to tackle by way of the derogation from Article 5. Article 5, so far as relevant to a person who is not to intended be charged with an offence, provides—

1. Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...

    (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taking with a view to deportation or extradition.

22. The Government have taken the view that it would probably not be compatible with Article 5(1)(f) to detain suspected international terrorists indefinitely until such time as a country where the suspects would be safe from torture and death, or a country acceptable to the suspects (a safe third country) could be found to take them. Seeking to avoid the risk of incompatibility, the Government have prepared the ground for derogating from Article 5(1)(f) by making the derogation order. If a derogation is made (by giving notice to the Secretary General of the Council of Europe under Article 15(3) of the ECHR) and is held to be valid, the European Court of Human Rights will interpret rights under Article 5 as being restricted in international law to the extent set out in the notice of derogation.

23. The Government's analysis may be correct, and the precautionary derogation may therefore be necessary to its purposes. We take no definite view on this question. However, we note that clause 23 of the Bill does not in itself make it clear that the purpose of detaining the suspect is solely to find a safe country to which to remove him or her. A suspect might be very willing to go to a country which supports, or at any rate does not oppose, terrorism. The question would then arise as to whether the Government would be prepared to remove a suspected international terrorist to a place where he or she would be free to resume terrorist activity. If it was not prepared to do so, the proposed arrangements for detention look more like a form of indefinite internment than detention pending removal. This would make it more likely that the detention would be held to violate Article 5(1)(f).[18] We asked the Secretary of State in oral evidence whether, for example, he would be prepared to let someone go to Iraq, Syria or Libya. We were reassured when he responded—

    If a country is prepared to take someone, then we would release them under these particular powers, because we are talking about immigration powers here ...[19]

24. Before giving notice to the Secretary General, the Government have made an Order in Council under section 14 of the Human Rights Act 1998 to designate the proposed derogation as one which is to have immediate effect for the purposes of the 1998 Act.[20] The effect of this, assuming that the derogation is held to be valid, is that domestic public authorities (including courts and tribunals) will interpret rights under Article 5 as being immediately subject to the qualification made in the derogation for the purposes of the 1998 Act. On this basis, the Home Secretary, when introducing the Bill to the House of Commons, felt able to make a statement under section 19(1)(a) of the 1998 Act that in his view the provisions of the Bill were compatible with the Convention rights.

25. The Schedule to the Order in Council (in the form of a draft letter to the Secretary General of the Council of Europe) argues that there is a public emergency within the meaning of Article 15(1) of the Convention. It recites that the United Nations Security Council has recognized the attacks of 11 September 2001 as a threat to international peace and security, and in resolution 1373 required all States to take measures to prevent commission of terrorist attacks, including by denying safe haven to those who finance, plan, support or commit them. The threat is said to exist in the United Kingdom, particularly because there are foreign nationals here who are suspected international terrorists and who threaten the national security of the United Kingdom. The Schedule goes on to assert that the measures in Part 4 of the Anti-Terrorism, Crime and Security Bill are strictly required by the exigencies of the situation.

26. In this context, we note that the Human Rights Committee at the United Nations, when considering the United Kingdom's fifth periodic report under the International Covenant on Civil and Political Rights (ICCPR), said—

    The Committee notes with concern that the State Party, in seeking inter alia to give effect to its obligations to combat terrorist activities pursuant to Resolution 1373 of the Security Council, is considering the adoption of legislative measures which may have potentially far-reaching effects on rights guaranteed in the Covenant, and which, in the State Party's view, may require derogations from human rights obligations.

    The State Party should ensure that any measures it undertakes in this regard are in full compliance with the provisions of the Covenant, including, when applicable, the provisions on derogation contained in Article 4 of the Covenant.[21]

27. Article 4 of the ICCPR allows States to derogate from some provisions (including the right to liberty under Article 9), 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. The derogation must be limited 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.' There is little guidance on the meaning of these provisions either in the General Comments of the Human Rights Committee or in the caselaw under the First Optional Protocol. What can be said is that the Human Rights Committee treats the State as bearing the burden of proving to its satisfaction that there is a public emergency threatening the life of the nation, and that any interference with rights is only as extensive as is strictly required by the exigencies of the situation (imposing a strict test of proportionality) and must not outlast the emergency or be arbitrary in its application.[22] It would appear that a derogation from Article 9 of the ICCPR would also be necessary.

28. Similar principles inform the caselaw of the European Commission and Court of Human Rights on derogations under Article 15 of the ECHR, with the additional consideration that a state has a substantial but not unlimited margin of appreciation when making judgments as to the existence of a state of emergency and the adequacy of existing laws or arrangements to cope with it.[23]

29. We have considered the derogation in the light of these principles—those enunciated by the United Nations Human Rights Committee as well as the Council of Europe. We were concerned about the lack of specificity in the reasons given in the Order in Council for asserting that there is a public emergency threatening the life of the nation. At the same time, we accept that such judgments may depend heavily on assessing information derived from sources which must properly be kept secret. We examined the Home Secretary closely in oral evidence about the grounds for his belief that the threat to national security and to the public is different in kind or in degree from that which faced the country last year when the Terrorism Act 2000 was enacted. His responses are contained in the evidence appended to this report.[24] The essence of his position is that the threat is variable, but is generally greater at present than, for example, that from the IRA from the 1970s onwards because today's terrorists are believed to have access to weapons of mass destruction.

30. The tests against which a derogation must be judged to be valid are very stringent. They require that there is an emergency which threatens the life of the nation. The test for the extent of measures taken under a derogation is equally stringent—that the measures are strictly required by the exigencies of the situation. In this context we also note that the United Kingdom's armoury of anti-terrorism measures is already widely regarded as among the most rigorous in Europe, and yet no other Member State of the Council of Europe has so far felt it to be necessary to derogate from Article 5 in order to maintain their security against terrorist threats.[25] Having considered the Home Secretary's evidence carefully, we recognise that there may be evidence of the existence of a public emergency threatening the life of the nation, although none was shown by him to this Committee. As no court in this country will be able to decide whether the derogation is justified against the criteria of Article 15 of the ECHR, it is especially important for each House to decide whether they are satisfied of the existence of a public emergency threatening the life of the nation. But even if it is accepted that there is such an emergency, the lack of safeguards built into the Bill, particularly in relation to detention powers, causes us to doubt whether the measures in the Bill can be said to be strictly required by the exigencies of the situation.

The Bill

31. It is in the light of that conclusion that we now turn to consider the human rights implications of the related Part 4 of the Bill.


Definition of international terrorist

32. As we recounted above, Part 4 of the Bill would significantly alter the treatment of certain immigrants and intending immigrants, including those who seek asylum in the United Kingdom under the Convention relating to the Status of Refugees[26]. People who have no unconditional right to enter or remain in the United Kingdom, and whom the Secretary of State suspects of being international terrorists whose removal would be conducive to the public good, would have their rights significantly altered, and might in some circumstances be detained indefinitely without being charged with any offence.

33. Under clause 21(1) of the Bill, the Secretary of State would be allowed to issue a certificate identifying a person subject to immigration control as someone whom the Secretary of State believes to be a risk to national security, and suspects to be an 'international terrorist'. International terrorists are very widely defined in clause 21(2). They include people who (a) are or have been concerned in the commission, preparation or instigation of acts of international terrorism,[27] or (b) are members of or belong to an international terrorist group,[28] or (c) have links with a person who is a member of or belongs to an international terrorist group.

34. We consider it important that the class of people liable to be regarded as international terrorists should be sufficiently clearly defined, because a certificate under clause 21 would have significant effects on the person's right to liberty under Article 5 of the ECHR. Where a person is certified as a suspected international terrorist, that person could be subject to a deportation order or to a decision to refuse entry or to vary the conditions under which he or she was previously admitted so as to lead to his or her removal. There may be circumstances in which deportation is not an available option. For example, there might be no country to which the person could be sent where they would not be at risk of torture, inhuman or degrading treatment or punishment, or the death penalty. Removing the person in those circumstances could violate the United Kingdom's obligation not to subject him or her to death (including capital punishment) or torture or inhuman or degrading treatment or punishment.[29] If the person cannot be deported or removed because it would either be impractical to do so or contrary to the United Kingdom's international legal obligations the Secretary of State would then be able to detain the person either temporarily or indefinitely under the provisions of clause 23 of the Bill.

35. Both under Article 5(1) of the ECHR (assuming that the derogation, discussed above, is valid) and under the broadly equivalent provisions of Article 9 of the ICCPR, the lawfulness of the detention would depend in part on being able to show that it was not arbitrary. The key issue here is whether the definition of 'international terrorist' in the Bill is sufficiently clear and non-discriminatory to avoid arbitrariness. In this context, we are particularly concerned about two questions.

36. First, including people who have 'links with' terrorist groups or with those connected with such groups seems to us potentially over-inclusive. We are aware of no other legislation in the United Kingdom which authorizes detention on the basis of a criterion as vague as the person's 'links with' other people or groups. The Bill does not in any way define the notion of such links.

37. We examined the Home Secretary in oral evidence on the case for including the provision of clause 21(2)(c) relating to terrorist links in the Bill.[30] His answers did not persuade us that the risk of arbitrariness in its application could be avoided in practice. We therefore draw this matter to the attention of each House.

38. Second, by relying on immigration legislation to provide for the detention of suspected international terrorists, the Bill risks discriminating, in the authorization of detention without charge, between those suspected international terrorists who are subject to immigration control and those who have an unconditional right to remain in the United Kingdom. We are concerned that this might lead to discrimination in the enjoyment of the right to liberty on the ground of nationality. If that could not be shown to have an objective, rational and proportionate justification, it might lead to actions which would be incompatible with Article 5 of the ECHR either taken alone or in combination with the right to be free of discrimination in the enjoyment of Convention rights under Article 14 of the ECHR. It could also lead to violations of the right to be free of discrimination under Article 26 and the right to liberty under Article 9 of the ICCPR.

39. We raised this matter with the Home Secretary in oral evidence.[31] Having considered his response, we are not persuaded that the risk of discrimination on the ground of nationality in the provisions of Part 4 of the Bill has been sufficiently taken on board.

4   HC Deb., 15 October 2001, cc 924-939 Back

5   HC Deb., 15 October 2001, cc 940-953 Back

6   HC Deb., 15 October 2001, c 923 Back

7   Similar announcements were made in the House of Lords on the same day, see HL Deb., 15 October 2001, cc 375-384 Back

8   See House of Commons S.O. No. 152B, Lords Sessional Order of 3 July 2001, and First Special Report, Session 2000-01, Criminal Justice and Police Bill, HL Paper 42/HC 296 Back

9   We also received written submissions from a number of sources including Liberty, the Information Commissioner and Amnesty International. Pressure of time has prevented us from publishing these with our report. We hope to do so with any further report we make. Back

10   Terrorism Act 2000, ss. 15-18, 54-61 on acts committed in the United Kingdom relating to terrorism elsewhere, and ss. 62 and 63 on liability in the United Kingdom for acts done elsewhere relating to terrorist explosions, use by terrorists of biological or chemical weapons, or the funding of terrorism, anywhere in the world. Incitement and conspiracy in the United Kingdom to commit statutory offences are also triable here: conspiracy to commit an offence is a common-law crime, and incitement is an offence contrary to the Criminal Law Act 1977, s. 1, as substituted by the Criminal Attempts Act 1981, s. 1 Back

11   S.I. 1993, No. 1933, giving effect to Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering (O.J. No. L166, 28 June 1991, p. 77) Back

12   S.I. 2001, No. 3641, made on 9 November 2001 to extend the regulatory regime to bureaux de change and similar money service operators Back

13   Bill 49 of this Session Back

14   On 7 November 2001 Back

15   On 14 November 2001 Back

16   S.I, 2001, No. 3644 Back

17   In addition, Protocol No. 6, Article 3 prohibits derogation from the provisions of Articles 1 and 2 of Protocol No. 1 (prohibition of death penalty except in time or war or imminent threat of war) Back

18   Cp. the decision of the European Commission of Human Rights in Ali v. Switzerland (1997) 28 E.H.R.R. 304. Back

19   Q 8 Back

20   Human Rights Act (Designated Derogation) Order 2001, S.I. 2001 No. 3644, which came into force on 13 November 2001 Back

21   The Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland. 05/11/2001. CCPR/CO/73/UK, CCPR/CO/73/UKOT. (Concluding Observations/Comments), para. 6 Back

22   See M. Nowak, CCPR Commentary (Kehl: N. P. Engel, 1993), p. 70; Landinelli Silva v. Uruguay, App. No. 34/78, HRC; S. Joseph, J. Schulz and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford: Oxford University Press, 2000), pp. 623-633 Back

23   See D. J. Harris, M. O'Boyle and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995), ch. 16 Back

24   QQ 3 to 7 and 9 Back

25   France, Lithuania and the Ukraine have entered reservations or derogations to allow their public prosecutors to continue to be responsible for authorizing detention in some cases, not specifically linked to terrorism Back

26   Geneva, 1951, hereafter 'the Refugee Convention' Back

27   I.e. terrorism which is not concerned only with the affairs of part of the United Kingdom Back

28   I.e. a group subject to the control or influence of persons outside the United Kingdom, which the Secretary of State suspects to be concerned in the commission, preparation or instigation of acts of international terrorism Back

29   ECHR, Arts. 2 and 3 and Protocol No. 6; Soering v. United Kingdom (1989) 11 E.H.R.R. 439; Chahal v. United Kingdom (1996) 23 E.H.R.R. 413 Back

30   QQ 27 to 28 Back

31   Q 29 Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2001
Prepared 16 November 2001