Submitted by The Law Society
The Society welcomes the scrutiny of the Government's
anti-terrorism proposals by the Home Affairs Select Committee,
but is concerned that the Bill itself will not be published until
after the deadline for written and oral evidence. It is essential
that the detail of the Bill is properly examined and debated to
make certain that it strikes the right balance between dealing
with the threat of terrorism, whilst ensuring that there is due
process and that fairness and justice are maintained.
The Society has particular concerns regarding
the practicalities of some of the Home Secretary's proposals so
far announced, which we highlight below.
A particularly difficult issue thrown up by
the Government's proposal to amend the Immigration and Asylum
Act 1999 with regard to those suspected or convicted of terrorist
involvement relates to the definition of terrorism. Consideration
of how the definition of "terrorist" will be framed
begs the question of whether individuals such as Nelson Mandela,
or democracy campaigners in China, Tibet or Burma would come within
its ambit. The Home Secretary must spell out the definition of
terrorism and the standards of proof in relation to this very
clearly. Whilst we accept that the decision as to which organisation
should be categorised as a terrorist group is properly a political
decision, the decision making process itself must be open and
transparent, and subject to Parliamentary debate.
Furthermore, whether or not the Home Secretary
has reasonable grounds for concluding that an individual is a
member of a specified terrorist group or suspected of terrorist
involvement must be a decision for the courts. A proper judicial
process is crucial to ensure scrutiny of the otherwise unchallenged
view of the security service as to who is a threat to national
security. This is particularly necessary in view of experiences
during the Gulf War, when British immigration laws were used to
detain hundreds of innocent men from the Middle East on the misconceived
basis that they were Iraqi agents or army officers. At the end
of the war, none of the detainees were deported and some were
paid compensation as a result of having been wrongly detained.
2. DUE PROCESS
Under Article 14 of the Universal Declaration
of Human Rights, everybody has the right to seek asylum, and those
suspected of terrorism should not therefore be excluded from accessing
the asylum determination process. Each case should be considered
on an individual basis and according to facts and evidence, not
suspicions. In order to comply with international law, including
the Refugee Convention, the process should begin with the determination
of the claim for refugee status, and only then should the question
of exclusion from the protection of the Convention be considered.
All asylum seekers must have access to good
quality legal advice throughout their case, both to protect their
human rights and to ensure the efficient operation of the decision
making process. Early access to good quality legal advice will
improve the quality, fairness and integrity of the process as
a whole and will facilitate good quality decision making from
the outset, which would in turn lead to fewer appeals.
We have very serious concerns about proposals
to accelerate the court process and to streamline the existing
judicial review procedure. Undue emphasis on speed militates against
good and thorough decision making especially if not balanced by
proper and good representation. Judicial review is a very important
tool in practice, which ensures that the state does not exceed
its powers. It has proved to be an essential safety net, protecting
the rules of natural justice and ensuring the proper operation
of the rule of law. It need not amount to a re-hearing of the
facts, or to the courts substituting their judgment for the Home
Secretary'sbut it does ensure that if the Home Secretary
were to take a decision for which there was no reasonable basis,
the courts could provide a remedy.
Whilst we appreciate the wish to deal with cases
as efficiently and expeditiously as possible, this must not be
done without proper safeguards and representation. There is a
clear need for the courts to have scrutiny of issues relating
to detention and exclusion, to ensure compliance with international
law and due process in practice. There must be due process, particularly
as the quality of initial decision making by the Home Office is
far from satisfactory.
We naturally welcome the fact that the Government
does not propose to remove people in violation of Article 3 ECHR.
However, we have concerns about the proposal to derogate from
Article 5 ECHR to allow the indefinite detention of those who
cannot be removed without violating Article 3. Not only are we
concerned about the removal of the human rights of asylum seekers,
the Government must be mindful of the need for the derogation
to be approved by the EU organs. In Brannigan and McBride v
UK (1994) 17 EHRR 117 the European Court accepted the validity
of a derogation from Article 5, but said the derogation must be
viewed by the Court as "strictly required by the exigencies
of the crisis". There is no room for a wide margin of appreciation
in relation to this test. Whether or not the Government's proposed
derogation meets the test will be a matter for the European Court.
Whatever the outcome of the question of the
legality of the proposed derogation, and whilst we recognise the
difficulties inherent in the current need to deal with terrorism,
a transparent system which is properly open to judicial scrutiny
must be put in place.
We welcome in principle the proposal to create
an offence of religious hatred. However, it is essential that
the law is drafted with immense care to ensure that freedom of
speech is not unduly inhibited or infringed.
5. SUNSET CLAUSE
In view of the wide-ranging proposals in the
Bill, a sunset clause should be included to ensure that its provisions
can be debated and reviewed at a later stage.