Memorandum submitted by The AIRE Centre
The AIRE Centre (Advice on Individual Rights
is a human rights organisation based in London. The AIRE Centre
provides expert advice on International Human Rights law and in
this context it is frequently called upon by international bodies
such as the Council of Europe as experts on the implementation
of the European Convention on Human Rights (ECHR).
The AIRE Centre welcomes the opportunity to
give evidence to the Home Affairs Committee. The Home Secretary's
proposals as set out in his speech to Parliament on 15 October
2001 are wide ranging and potentially have huge consequences for
civil liberties in the United Kingdom. This has to be taken in
the context of the fact that the UK has the most extensive anti-terrorism
legislation in the world at present. It is therefore questionable
whether the Home Secretary has any need to increase his powers
in this field. The AIRE Centre considers that the proposals are
an unnecessary infringement on fundamental human rights and any
proposed legislation should be extremely carefully scrutinized
to ensure that liberties are not curtailed in the name of political
The two areas of greatest concern, although
by no means the only, are the proposal to reject asylum claims
where the Secretary of State certifies the person to be a threat
to public security and the proposal to use prolonged detention
and derogate from Article 5 ECHR under Article 15 ECHR. Whilst
the detail of these proposals is not yet known there are certain
principles which must guide the adoption of any legislation in
Rejection of Asylum Claims and Expulsion or Extradition
of Suspects and the Certification of Claims
1. The proposals by the Secretary of State
to reject an asylum claim where he certifies that a person is
a threat to national security would not be consistent with the
UK's obligations under Article 13 ECHR taken together with Article
3, given that an asylum claim is likely to raise issues under
Article 3 ECHR. In any event there is no provision under the 1951
Convention which entitles the Secretary of State to withhold recognition
of refugee status other than for past crimes as set out in Article
1F. Article 33(2) sets out procedural safeguards to be observed
if the Secretary of State wishes to expel someone on national
security grounds. The jurisprudence of the Strasbourg Court can
not justify an expulsion where there is real risk of treatment
contrary to Article 3.
2. The United Kingdom's obligations under
the ECHR and 1951 Convention demand that claims for international
protection are considered on their merits and are given due process.
Any attempts to streamline procedures or curtail appeal rights
should bear in mind the obligation to "secure" rights
within its territory and provide an effective remedy for actual
or potential breach.
3. It is the AIRE Centre's understanding
from the Home Secretary's statement that he intends to honour
the United Kingdom's obligations under Article 3 ECHR and under
the 1951 Convention
in so far as he does not intend to return a person where they
will be tortured or killed. However the AIRE Centre is extremely
concerned at any qualification of that commitment.
4. To fail to provide protection against
expulsion for all persons facing torture or inhuman or degrading
treatment is to entirely misunderstand the nature of the UK's
obligations under Article 1 ECHR which requires States to "secure"
the rights all persons in its territory. It would entirely undermine
the Convention and the absolute nature of Article 3 if a State
were prevented from subjecting a person to ill-treatment within
its own territory but could simply send them elsewhere to subject
them to that kind of treatment.
Derogation to Article 5 of the Convention under
5. Article 15 of the Convention permits
a Contracting State to derogate from its obligations under the
Convention, excepting Articles 2, 3, 4 and 7 in time of war or
other public emergency threatening the life of the nation. There
are two general considerations in assessing whether the breach
of a Convention right is justified by the right of derogation:
1. Is there a public emergency threatening
the life of the nation?
2. Are the measures proposed strictly required
by the exigencies of the situation?
State of emergency threatening the life of a nation
6. This refers to an exceptional situation
of crisis or emergency which presently affects the whole population
and constitutes a threat to the organised life of the community.
The Strasbourg Court will examine whether the facts and circumstances
which lead a Contracting Party to enter a derogation come within
this conception. The Strasbourg Court, in exercising its supervision,
will give appropriate weight to relevant factors such as the circumstances
leading to and the duration of the emergency situation.
It seem unlikely that the Strasbourg court would accept the use
of so serious an invasion of human rights as indefinite detention
in anticipation of an emergency particular as the fear of terrorism
will no doubt continue long into the future.
7. The Secretary of State undoubtedly presently
considers that there is such a state of emergency. However it
is worth bearing in mind that firstly there have been no publicised
attacks on the United Kingdom; that if the threat is "global
terrorism" the United Kingdom is in no different position
than the rest of the world; that if the matter came before the
Strasbourg Court it would be entitled to demand evidence as to
the state of emergency affecting the United Kingdom which might
be difficult to provide and the Government may not wish to have
that evidence examined.
Whether the measures taken in derogation from
obligation under the Convention were "strictly required by
the exigencies of the situation"
8. In the determination of the "strictly
required" character of the derogating measures various elements
may play a role, notably the necessity of the derogations to cope
with the threat and the proportionality of the measures in view
of the threat. The Strasbourg Court will require that the Contracting
State proves that the existing legislation and the normal procedures
for the maintenance of the legal order are not sufficient to respond
to the situation.
9. In the present situation the rational
for the derogation to Article 5 appears to be the need to indefinitely
detain those who can not be expelled because to do so would be
a breach of Article 3. In this sense it is a derogation to Article
5(1)(f) rather than a derogation to Article 5(1)(c.).
In the past the UK has entered derogations for the purposes of
prolonging detention for a limited period of time in order to
obtain information from terrorist suspects from Northern Ireland.
10. The UK has also derogated in very exceptional
circumstances involving extensive loss of life such in Kenya for
prolonged detention. Such indefinite detention is obviously more
of an infringement and would require clear justification and the
detention of an individual would have to be on the basis of clear
evidence. It is therefore entirely questionable why the Secretary
of State would seek to detain rather than prosecute, particularly
given the wide powers to prosecute under the Terrorism Act 2000.
If the failure to prosecute is a consequence of lack of evidence
against a person, that evidence would be unlikely to satisfy the
need to detain.
11. The evidence of the past, without exception,
indicates that security organisations invaribly make serious errors
when given a power of indefinite detention, much to the embarrassment
of Governments which use them.
1 This submission has been prepared with the assistance
of A W Brian Simpson, Charles F and Edith J Clyne Professor of
Law at the University of Michigan Law School, author of "In
the Highest Degree Odious: Detention without trial in wartime
Britain" Clarendon Press, 1992 and "Human Rights and
the End of Empire" Britain and the Genesis of the European
Convention", Oxford University Press, 2001. Back
The reflection on the measures used in wartime Britain including
detention without trial reveals a tendency to do "whatever
seems necessary at the time ... or politically expedient"
but that does not answer the question whether it was necessary
or achieved its aim; see "In the Highest Degree Odious",
op. cit., pp. 409-413. Back
Articles 1 & 13 ECHR. Back
1951 UN Convention on the Status of Refugees, Geneva. Back
This is our understanding from a meeting on Developments in Europe
we attended at the Home Office on 31 October 2001 where officials
reported that discussions were being initiated at European level
as to the absolute nature of Article 3 ECHR and whether the same
protection should apply to persons being expelled and who face
ill-treatment as that applied to persons in the territory of the
Contracting States and that those facing less severe forms of
ill-treatment than torture might not require protection. Back
Brannigan and McBride v the United Kingdom, 26 May 1993, paras.
It was the Colonial Office in the early '50s which expressed
concern as to use of detention without trial before an emergency
had been declared in Malaya for instance; The then Lord Chancellor
and others considered such measure quite unacceptable; see A W
B Simpson "Human Rights and the End of Empire", pp.
830-1 and pp. 1065-68. Back
Article 5 provides
1. Everyone has the right to
liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure
prescribed by law:
. . .
(c ) the lawful arrest or detention
of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed
an offence or when it is reasonably considered necessary to prevent
his committing an offence or fleeing after having done so.
. . .
(f) the lawful arrest or detention
of a person to prevent his effecting an unauthorised entry into
the country or of a person against whom action is being taken
with a view to deportation or extradition. Back