Memorandum by JUSTICE
1. JUSTICE, the all-party law reform and
human rights organisation, is the British section of the International
Commission of Jurists. For many years, it has had a particular
interest in criminal justice and procedures, as a result of many
years of work on miscarriages of justice. It is now assisting
government, public authorities such as the police, practitioners
and non-governmental organisations to prepare for implementation
of the Human Rights Act.
2. JUSTICE accepts that, in the context
of terrorist activity, there is an imperative to protect public
safety that may, on occasion, require special measures. JUSTICE
also accepts that the majority of the provisions in the Terrorism
Bill do on their face comply with the European Convention on Human
Rights (ECHR). However, we do have concerns that the powers envisaged
in the Bill could be exercised, or implemented, in breach of the
Human Rights Act (HRA).
3. The purpose of this paper is to highlight
a number of key areas in the Terrorism Bill where serious issues
are raised in relation to compliance with the HRA, and with the
substantive rights in the ECHR which the HRA incorporates.
It is JUSTICE's view that, in the absence of amendments to the
Bill, the section 19 statement made in relation to it will need
to be reconsidered.
4. JUSTICE's submissions are based in part
upon an advice received from Professor Conor Gearty on the Consultation
Paper Legislation Against Terrorism and two separate legal opinions
received from Tim Owen and Nadine Finch, both barristers at Doughty
Street Chambers. These notes and the advice, and a note prepared
by JUSTICE on relevant Article 10 and 11 jurisprudence, are available
from JUSTICE's office and have been sent to the whips' office
and to the Clerk of the Delegated Powers and Deregulation Committee
Inquiry into Legislation Against Terrorism 1996
5. Lord Lloyd of Berwick concluded in Inquiry
into Legislation Against Terrorism 1996
that permanent anti-terrorist legislation was necessary. He recognised,
however, that the creation of permanent measures, which did not
accord suspects their usual rights and created offences which
were additional to existing criminal ones, could breach human
rights standards. He therefore adopted four principles which he
believed would need to be adhered to in creating such legislation.
- that permanent anti-terrorist legislation should
approximate as closely as possible to ordinary criminal law and
- that it should create additional offences and
powers only where necessary to meet an anticipated threat, and
should balance the need for security with respect for individual
- that it should impose additional safeguards alongside
- that it should comply with the UK's international
JUSTICE endorses these principles.
Section 19 of the Human Rights Act
6. Under section 19 of the Human Rights
Act 1998, which is already in force, the relevant Minister is
under a duty to make a human rights statement on a Bill before
Second Reading. The Home Secretary has made a statement under
section 19(1)(a) indicating that in his view the provisions of
the Terrorism Bill are compatible with Convention rights. It would
seem clear therefore that it is the Government's intention that
this legislation and its implementation should be compatible with
the rights protected in the Human Rights Act 1998.
7. This paper focuses on four key difficulties
which JUSTICE has identified in the Terrorism Bill. These are:
- The broad definition of terrorism included in
the Bill (paras.2.1-2.16)
- The restrictions placed on freedom of expression
and assembly, by clause 12 of the Bill (paras.3.1-3.12)
- The use of reverse onus of proof clauses (paras.
- The extensive delegated powers granted to the
Secretary of State by the Bill (paras.5.1-5.8)
II: The Definition of Terrorism
8. The proposed definition of "terrorism"
in the Bill is wider than that employed in the Prevention of Terrorism
(Temporary Provisions) Act 1989 ("PTA"). That Act stated
that "terrorism" "means the use of violence for
political ends, and includes any use of violence for the purpose
of putting the public or any section of the public in fear"
9. The new definition in the Terrorism Bill
will apply to terrorism connected to matters in Northern Ireland,
international terrorism and, for the first time, actions by domestic
groups in Great Britain. Additionally, the purpose necessary for
actions to be defined as terrorist has been widened beyond the
merely political to include religious or ideological causes. The
definition of violence has also been extended to "serious
violence against any person or property".
10. The definition goes even further in
that it also includes acts which create a serious risk to the
health or safety of the public or a section of the public. This
is not qualified by the need to show that violence has been used
to intimidate or coerce a government, the public or a section
of the public. It also includes action taken for the benefit of
a proscribed organisation. There are real concerns that, for example,
road protesters and those opposed to genetically modified crops
will be among those whose activities are branded terrorist.
11. The definition has also removed the
distinction usually made in the criminal law between acts which
injure people and actions which damage property. The rationale
behind such a distinction is the deterrence of acts which threaten
life. Thus crimes that injure or endanger life normally carry
higher penalties than those that damage property. No such distinction
is made in the definition of terrorism adopted by the present
Bill. Therefore, there is a risk that there will be no incentive,
under the scheme of the Bill, for a terrorist to choose targets
which do not endanger other people.
12. One of the principal concerns about
the Bill's definition of terrorism, in relation to the application
of human rights standards, is that it is so broad as to lack certainty.
The definition of terrorism in the Bill is crucial because it
forms the basis for the application of much of the remainder of
the Bill. Since the consequences of the definition are so great,
it is important that the scope of the definition should be clearly
ascertainable, and justifiable, so as to ensure the credibility
of the legislation and its enforcement mechanisms.
13. In analysing the proposals contained
in the Terrorism Bill against the provisions of the ECHR and the
case law of the European Court of Human Rights (ECtHR), it is
important to bear in mind that hitherto consideration of the laws
of terrorism by the ECtHR has been concerned with particular types
of political violence. The broadening of the definition of terrorism
to include actions undertaken for religious or ideological causes,
and the inclusion as terrorist organisations of domestic groups,
is likely to put the proposed terrorist laws to even more stringent
examination under the Convention, both at the ECtHR and later
in domestic courts when the main provisions of the Human Rights
Act 1998 come into force in October 2000.
14. A number of specific problems of human
rights compatibility arise out of the definition of terrorism
in the Bill. These include:
- The right to liberty, under Article 5 ECHR
- The right to privacy, under Article 8 ECHR
- Rights to freedom of thought conscience and religion
(Article 9), freedom of expression (Article 10) and freedom of
association and assembly (Article 11)
Article 5, ECHR: The Right to Liberty
15. JUSTICE welcomes the fact that the Terrorism
Bill introduces a requirement to obtain judicial agreement before
detention without charge can be extended beyond a period of forty-eight
This reflects the need to reconcile national law with the requirements
of the European Convention on Human Rights.
However the lack of certainty in relation to the definition of
terrorism and its extension to certain domestic groups will give
rise to human rights challenges, despite the guarantee of judicial
supervision of detention after 48 hours.
16. Article 5, which guarantees the right
to liberty, regulates powers of arrest in relation to terrorist
offences. In order to comply with Article 5(1)(c) of the Convention,
an arrest must be on suspicion of committing an "offence".
Where the grounds for arrest are not sufficiently specified, there
may not be an "offence" such as to justify detention
under Article 5(1)(c). This calls into question clause 41 (1)
of the Terrorism Bill, which provides that a constable may arrest,
without a warrant, a person whom he reasonably suspects to be
17. In Brogan v United Kingdom
a similar provision was found by the ECtHR to be compatible with
Article 5(1)(c). However the facts of the case are important.
The ECtHR accepted that the applicants were not simply suspected
of involvement in terrorism in general (our italics) but of membership
of a proscribed organisation and involvement in specified acts
of terrorism, which were acts of political violence and which
were offences under the law of Northern Ireland. Since Brogan,
there would appear to be no power to permit the wide-ranging arrest
of persons in respect of whom no specific suspicions exist.
18. JUSTICE considers that, as a result
of the broad definition of terrorism, the grounds on which an
arrest can be made, under clause 41, are too wide to ensure compliance
with Article 5(1)(c). It is not clear why the arrest powers used
in non-terrorist offences by police officers under the Police
and Criminal Evidence Act 1984 ("PACE"), requiring the
identification of a particular offence before making an arrest
(ss. 24 and 25 PACE) are considered inadequate. In JUSTICE's view,
clause 41 should be amended so as to require the identification
of a particular offence, before making an arrest.
The Right to Privacy: Article 8, ECHR
19. A further problem arising out of the
definition of terrorism under the Bill relates to Article 8, the
right to privacy. Article 8 states that everyone has the right
to respect for his private and family life, home and his correspondence.
20. Under Article 8(2), any interference
with these rights must be "in accordance with the law"
and "necessary in a democratic society". This latter
phrase has been interpreted by the ECtHR as requiring a "pressing
social need" and an appropriate degree of proportionality
between the privacy infringement and the aim pursued by the public
21. Both the current and the proposed laws
on the investigation of terrorist funding can involve the infringement
of the right to privacy of third parties and suspects and financial
institutions. Under the Convention, this interference will have
to be justified. Such investigations may be considered disproportionate
to the end that is desired. This will be particularly so in relation
to the extension of terrorist law to certain types of domestic
dissent, which will bring within reach of the legislation an increased
body of new suspects whose accounts will be capable of being investigated.
The "pressing social need" for such investigations will
be less obvious than in the past when political violence in Northern
Ireland was self-evidently a problem. Equally, the proportionality
of some police operations will be questionable from an Article
8 perspective where the persons being investigated do not have
the same track record as the organisations that have been the
traditional focus of anti-terrorism laws.
Additional Concerns under the ECHR
22. In addition, the definition of terrorism
and its application to certain organisations may not be justifiable
in relation to other human rights standards such as an individual's
right to freedom of thought, conscience and religion under Article
9, freedom of expression guaranteed by Article 10 and freedom
of assembly and association protected by Article 11. Furthermore,
no additional safeguards have been incorporated into the Bill
to counter-balance the huge potential inroad being made in the
civil liberties of those at the fringes of political, religious
or ideological movements, as was firmly advocated by Lord Lloyd
in his report. In fact, the procedures to be employed when dealing
with suspected terrorists will not even have to meet the basic
standards established by PACE and its Codes of Practice.
23. JUSTICE is therefore concerned that
the wide definition of terrorism in the Bill, coupled with its
broad powers, may create human rights problems in practice. JUSTICE
is concerned that the legislation is not sufficiently approximate
to the ordinary criminal law and procedure and therefore there
is a danger that it does not strike the right balance between
the needs of security and the rights and liberties of the individual.
III: Restrictions on Freedom of Expression and
Assembly Under Clause 12 of the Bill
24. JUSTICE's most serious concern in relation
to the Terrorism Bill's compliance with the HRA is the restrictions
placed on freedom of expression and assembly by clause 12 of the
Bill. To this extent JUSTICE considers that the Bill is in breach
of the HRA and that a section 19(1)(a) statement of compatibility
cannot be safely made in respect of it.
25. Clause 12 of the Bill makes it an offence
to organise or to speak at a meeting, in the knowledge that the
meeting is to be addressed by a member of a proscribed organisation.
Under Clause 12, a person commits an offence where he or she either
organises or addresses a meeting, knowing that the meeting is
to be addressed by a person who belongs or professes to belong
to a proscribed organisation. By Clause 12(4) a meeting for these
purposes means a gathering of three or more persons, whether or
not the public is admitted.
26. A person guilty of an offence under
Clause 12 is liable on conviction on indictment to imprisonment
for a term not exceeding ten years, to a fine, or both. On summary
conviction a person is liable to imprisonment for a term not exceeding
six months, to a fine not exceeding the statutory maximum, or
27. To be liable to prosecution under clause
12, it is not necessary to support any terrorist cause - merely
addressing or organising a meeting is enough. In JUSTICE's
view, the restrictions imposed by these provisions on the freedom
of expression and freedom of assembly of persons who themselves
have no involvement in proscribed or terrorist organisations breach
the Convention. We recognise that, in contrast, the rights
of those actually involved in terrorist activity may either be
legitimately removed under Article 17 ECHR, in order to prevent
the destruction of the rights of others, or restricted in accordance
with the grounds for restricting rights identified in the ECHR.
28. It may well be that clause 12 will be
applied selectively so that prosecutions will not be regularly
instituted in respect of persons who are not involved in or supportive
of terrorist causes. However, there is nothing in the Bill itself
to impose such a limitation. The threat of prosecution and substantial
penalty under clause 12 will in itself hinder effective democratic
debate and interfere with the freedom of expression and assembly
rights of a wide range of individuals. The blanket nature of this
restriction on freedom of expression and assembly and its inevitable
chilling effect is at odds with the Convention requirement that
any restrictions on such freedoms should be proportionate, even
in the context of a terrorist threat.
Freedom of Expression: Article 10 ECHR
29. Article 10 guarantees the right to freedom
of expression. Convention law requires that, "as a matter
of general principle" the "necessity" for any restriction
of freedom of expression must be "convincingly established".
Furthermore, a restriction will not be compatible with the ECHR
unless it is prescribed by law, pursues a legitimate aim such
as the prevention of disorder or crime, and is necessary in a
30. It is likely that criminal proceedings
under clause 12 would be found to be "prescribed by law"
and to have a legitimate aim such as the protection of national
security or the prevention of disorder or crime. However, to establish
that criminal charges were "necessary in a democratic society"
it must also be shown that there was a "pressing social need"
to restrict freedom of expression and that the action taken was
a proportionate response to such a need. The courts would have
to examine whether there were relevant and sufficient reasons
for the restriction and whether less restrictive measures existed.
31. Many scenarios could lead to criminal
proceedings under Clause 12 being the subject of a challenge under
Article 10 of the ECHR. Five examples are noted here.
32. A person who belongs to the same social
milieu as the members of a proscribed organisation, but does not
belong to the organisation, attends a meeting of that organisation
to persuade them to abandon violence as a tool for political change.
He or she could be charged under Clause 12 with terrorist offences.
33. A government official, or a speaker
from a non-governmental organisation that campaigns for human
rights, addresses a public meeting knowing that the meeting is
to be addressed by a person who professes to belong to a proscribed
organisation. He or she could also be charged under Clause 12.
34. Three members of a proscribed organisation
gather in private to discuss decommissioning weapons. They too
could be liable to criminal charges under Clause 12.
35. A journalist organises an interview
with a number of members of a prescribed organisation, to inform
the public and contribute to debate. Under the Bill, he or she
could also be liable to prosecution.
36. A victim of terrorist violence attends
and addresses a meeting, knowing that members of the terrorist
organisation will be present, in an attempt to persuade them to
abandon violence, also incurring the risk of prosecution under
37. In all five scenarios it may well be
difficult for the State to establish that there was a pressing
social need to restrict freedom of expression by bringing criminal
charges, and that such charges were a proportionate response.
Furthermore, the effect of a criminal charge under Clause 12 might
be to create a chilling effect whereby dialogue with proscribed
organisations by those committed to non-violence was discouraged
for fear of criminal prosecution. The stifling of free expression
on issues of public importance in this way would risk breach of
Whilst, in theory, clause 12 does not entirely extinguish the
freedom of expression of someone wishing to debate a terrorist-related
issue, in that he or she may still express views outside a meeting
with a proscribed organisation, it does seriously restrict expression
rights in preventing such a person engaging in debate with members
of a proscribed organisation, on issues related to terrorism or
indeed even on completely unrelated issues. To this extent the
right to freedom of expression is effectively extinguished.
38. The jurisprudence of the ECtHR clearly
establishes that, even in the face of a terrorist threat, freedom
of expression must be accorded a high value, particularly where
political debate on matters of public interest is concerned.
Even in a situation such as the Kurdish conflict in Turkey, the
Court has found that there is little scope for restrictions on
political speech that concerns matters of public interest.
In particular, where restrictions are placed on the freedom of
expression of those who do not themselves hold terrorist views,
this may breach Article 10.
On the basis of the jurisprudence of the Court, it would appear
that restrictions on freedom of expression, of the type put in
place by clause 12, would not satisfy the requirement that any
restrictions on freedom of speech be "necessary in a democratic
society" and proportionate to the aims pursued.
39. JUSTICE considers that there is a need
to remodel clause 12 in order to take account of the principle
of proportionality and to adequately safeguard freedom of expression.
In order to ensure the compatibility of clause 12 with the Convention,
the provision would need to address the distinction between expressions
of support for terrorist action or for proscribed organisations
on the one hand, and expression which merely takes place in the
same forum as a speaker from a proscribed organisation, on the
other. In order to comply with the Convention, only the first
type of speech should be liable to prosecution. In JUSTICE's view,
clause 12 (3) (b) should be deleted. Clause 12 (2) (c) should
either be deleted, or amended to clarify that an offence is only
committed where the member of the proscribed organisation addressing
the meeting uses the meeting to seek support for terrorist activity
or for the proscribed organisation.
Freedom of Association and Assembly: Article 11
40. Further issues of the compatibility
of clause 12 are raised by Article 11 ECHR, which guarantees the
right to freedom of peaceful assembly and to freedom of association
with others. JUSTICE considers that Clause 12 of the Terrorism
Bill risks conflict with Article 11 of the Convention, since it
places restrictions on the freedom of assembly as well as the
freedom of expression of those speaking at meetings with members
of proscribed organisations. It is clearly established in the
jurisprudence of the Court that restrictions on Article 11 rights
must be strictly necessary and proportionate even in a situation
where there is a terrorist threat.
Even in such a situation, under the Convention, there must continue
to be a high level of protection given to the open debate of political
issues. JUSTICE considers that the restrictions on freedom
of assembly contained in clause 12 have the potential to hinder
political debate and freedom of assembly to an extent that would
breach Article 11 ECHR.
IV: Reverse Onus of Proof
41. Further issues of compatibility with
Convention rights are raised in relation to the provisions imposing
a reverse onus of proof on defendants, in clauses 56 and 57 of
the Bill. These clauses, which create possession offences, allow
a person to be convicted despite the existence of reasonable doubt
as to guilt. Clauses 56 and 57 of the Bill are respectively based
on Sections 16A and 16B of the Prevention of Terrorism (Temporary
Provisions) Act 1989 ("PTA"), which were added to the
PTA by the Criminal Justice and Public Order Act 1994.
Article 6(2): The Presumption of Innocence
42. Article 6(2) of the Convention states
that everyone charged with a criminal offence shall be presumed
innocent until proven guilty according to law. As a consequence
of this provision, the burden of proof is on the prosecution,
with two qualifications. Firstly, where a defendant seeks to establish
a specific defence, the burden of proof may be transferred to
Secondly, certain rules under which presumptions of law or fact
operate are not incompatible with the ECHR.
However, the ECtHR has ruled that states are required to keep
such presumptions within "reasonable limits" which take
into account the importance of what is at stake, and which maintain
the rights of the defence.
43. In respect of the standard of proof
required in criminal proceedings, the ECtHR has not stated explicitly
that the standard required by the ECHR is that of proof beyond
reasonable doubt. However, in Barbera, Messegue and Jabardo
the ECtHR noted that "any doubt should benefit the accused".
Further, in Goodman International and Goodman v Ireland,
the Court rejected the suggestion that a Tribunal of Inquiry involved
the determination of criminal charges because the tribunal had
not stated that the burden of proof throughout the proceedings
would be that for a criminal trial, namely beyond reasonable doubt.
44. By Clause 56 (1) of the Terrorism Bill,
it is an offence to possess articles in circumstances which give
rise to a reasonable suspicion that their possession is for a
purpose connected with the commission, preparation or instigation
of an act of terrorism. By Clause 56 (3) the presence of the accused
at any premises at the same time as such an article is enough
to prove possession of it, unless the accused can prove lack of
knowledge or control. It is also enough to prove possession if
an article is on premises of which the accused is the occupier
or which he uses otherwise than as a member of the public unless,
again, he can prove he had no knowledge or control.
45. There is a presumption of guilty intent
under Clause 56 (1) and (3). What is required for proof, prior
to the raising of a defence, is possession, widely defined in
subsection (3), and then further "reasonable suspicion"
of a terrorist purpose. This does not approximate to the criminal
standard of proof beyond reasonable doubt. This is especially
problematic in the context of the broad definition of terrorism
in the Bill, which could lead to a departure from the normal criminal
standard of proof in a significant number of cases.
46. By subsection (2) it is a defence for
a person to prove that the item possessed was not for purposes
connected with an act of terrorism. Here the burden of proof is
on the accused to prove his defence on the balance of probabilities.
Thus in circumstances where the prosecution has established possession
on grounds of a presumption of fact under subsection (3) and has
made out that there is reasonable suspicion of a particular purpose
for possession, the accused could attempt a defence which raises
a reasonable doubt as to the fact or purpose of possession. In
a standard criminal trial this would entitle the defendant to
an acquittal. However, under this clause, the defendant has to
prove that there is more than a reasonable doubt, namely that
his defence succeeds on the balance of probabilities. Otherwise
he has not adduced sufficient evidence to satisfy the standard
needed to succeed.
47. Both subsections (1) and (3) involve
presumptions of fact and law as to what will enable possession
to be established and what is required to establish the purpose
of such possession. As was noted above, the compatibility or otherwise
of provisions with Article 6(2) depends on whether the presumptions
of fact are within "reasonable limits" and take into
account the importance of what is at stake and which maintain
the rights of the defence.
48. By Clause 57 (1) it is an offence to
collect or record information of a kind likely to be useful to
a person committing or preparing an act of terrorism, or to possess
a document or record containing information of that kind. Thus
the fact of possession establishes the offence if it is judged
as likely to be useful to someone committing or preparing an act
of terrorism. This test for purpose is very opaque. Material caught
by its provisions could include lists of people and details of
where they live and work, a matter of concern for journalists.
49. The statutory defence under Clause 57
(3) states that the defendant has to provide a reasonable excuse
for his action or possession. Thus it would appear that the prosecution
do not have to discharge their burden of proving their case to
the criminal standard but only on the balance of probabilities.
Furthermore, there must be concern that the term "likely
to be useful to a person committing or preparing acts of terrorism"
is open to very broad interpretation, which could raise difficulties
in relation to Article 6(2). Again, the broad definition of terrorism
included in the Bill must increase the potential of this provision
to interfere with human rights.
50. The compatibility of Sections 16A and
16B of the PTA, the precursors of Clauses 56 and 57, with Article
6(2) was considered in R v Director of Public Prosecutions,
Ex Parte Kebilene and Others.
In the Divisional Court it was held that if a provision of domestic
legislation, properly construed, infringed the presumption of
innocence, then any conviction based on that provision was likely,
judged by the yardstick of the ECHR, to be unsafe. The Divisional
Court found that both sections of the PTA under consideration
undermined, in a "blatant and obvious" way, the presumption
51. The House of Lords did not reach a conclusion
on the issue of reverse onus clauses, when overturning the decision
of the Divisional Court on unrelated grounds. However, two judgments
did address the issue of the compatibility of reverse onus clauses
with Article 6. Lord Cooke and Lord Hope both drew a distinction
between shifting the "persuasive burden" (the threshold
test for guilt or innocence) and shifting the "evidential
burden" (the necessity to produce evidence in support of
a case). Section 16A, on its face, appears to shift the persuasive
burden of proof. Lord Cooke considered that the Human Rights Act
might require such provisions to be read as evidential burdens
in order not to undermine the presumption of innocence. Lord Hope
considered that the question of compatibility, and the balance
to be struck between the protection of the individual and of society,
would depend upon the facts of each case. He found that the specific
issue of the compatibility of the section 16A provisions was still
open to argument.
52. It is clear that these reverse onus
clauses raise important human rights issues which the courts will
need to consider on the facts of cases brought under these provisions.
It is also clear that such clauses, and the way that they are
implemented, carry serious risks of breaching the presumption
of innocence and being found in breach of the HRA.
53. JUSTICE is of the view that the presumptions
of guilty intent contained in clauses 56 and 57 may, in practice,
raise difficulties in regard to Article 6(2), and are likely to
be the subject of human rights challenges. It is JUSTICE's view
that these clauses, in their present form, should therefore be
removed from the Bill.
V: Delegated Powers
54. One prominent feature of the Terrorism
Bill is the considerable delegated power given to the Secretary
of State. The extent of these powers introduces a significant
uncertainty as to the way in which the Terrorism Bill will operate
in practice. Given the extent of the delegated powers in the Bill,
and the lack of constraints on these powers in certain circumstances,
their potential for breach of Convention rights contained in the
Human Rights Act is increased. JUSTICE considers that in order
to ensure that the Bill is fully human rights compliant, parliamentary
oversight of the delegated powers in the Bill should be extended,
and the scope of certain of the powers should be circumscribed.
55. Many of the delegated powers under the
Bill are subject only to a negative resolution procedure of either
House of Parliament under clause 122 of the Bill. Regulations
that may be made under this procedure include regulations under
clause 72 relating to the time limits applying in preliminary
proceedings for scheduled offences. This includes regulations
determining maximum periods for holding a suspect in custody,
and making provision as to bail, matters which have substantial
human rights implications. Regulations may also be made, without
prior parliamentary scrutiny, regarding the right of a suspect
to have a solicitor present, in the course of an interrogation
relating to a terrorist offence (Schedule 7, para.16).
JUSTICE considers that, where measures may have human rights
implications, and particularly where the liberty of the subject
is involved, they should, as a matter of principle, be subject
to a positive resolution procedure. In the light of this, the
Terrorism Bill should be amended to significantly limit the number
of delegated powers subject to a negative resolution procedure.
56. Secondly, in regard to those orders
and regulations which are subject to prior approval by both Houses
of Parliament under clause 122 (3), all but one of these may be
made without the approval of parliament where "the Secretary
of State is of the opinion that it is necessary by reason of urgency"
(clause 122 (4)). The order must contain a declaration by the
Secretary of State of his opinion as to urgency, and it will cease
to have effect after a period of 40 days, unless an approving
resolution is passed by both Houses of Parliament during the 40
Delegated Powers under Clause 96
57. One of the order-making powers which
is normally subject to parliamentary approval, but which may be
made without such approval in cases of urgency, is the power contained
in clause 96. By this section "[t]he Secretary of State may
by regulations make provision for promoting the preservation of
the peace and the maintenance of order" (clause 96 (1)) and
"[t]he regulations may authorise the Secretary of State to
make orders or give directions for specified purposes" (clause
96 (2)). Under clause 96 (3) and (4), it is an offence to contravene
or fail to comply with regulations or orders made under the section,
punishable on summary conviction by six months' imprisonment,
or a fine.
58. This provision would allow the Secretary
of State to make sweeping regulations, and create criminal offences,
where he considered that there was "urgency", without
parliamentary approval or scrutiny, the regulations remaining
valid for a period of 40 days. The powers under clause 96 are
not confined by even the broad definition of terrorism included
in the Bill, or by reference to proscribed organisations. If regulations
were to authorise the Secretary of State to give directions for
the purpose of "promoting the preservation of the peace and
the maintenance of order" there might well be an issue as
to whether any restriction this involved on qualified Convention
rights, such as the right to freedom of expression, to freedom
of assembly or to privacy, would be sufficiently precise to be
"prescribed by law." Care would also have to be taken
to ensure that any limitations on rights involved in such regulations
were strictly necessary and proportionate.
59. There is a further issue regarding the
creation of criminal offences under clause 96 (3), and compliance
with Article 7 ECHR. Article 7 ECHR forbids retroactive criminal
offences and penalties, but has also been held, more generally,
to incorporate the principle of legality, that a person should
only be convicted and punished on the basis of law. This principle
is seen as implicit in the idea of the rule of law, referred to
in the preamble to the Convention. Article 7 has been held to
require that offences be clearly defined in law, so that the individual
must be able to ascertain, from the wording of the relevant provision,
or from the courts' interpretation of it, what acts and omissions
will make him liable to criminal penalties.
Clause 96 of the Bill would certainly permit the creation of offences
that would fall short of the standard of specificity required
by Article 7. Where an offence is created by order of the Secretary
of State, based on general regulations, it is likely that it would
not reach the standard of precision required by the standard of
60. Clause 95 may also give rise to conflicts
with Article 5 of the Convention, which sets out the right to
liberty, and prohibits arbitrary detention. Clause 96 (4) allows
for imprisonment for a period of six months, on conviction for
any offence created under clause 96 (3). Where the regulations
made under clause 96 were general in their wording, and where
offences were then created and sentences of imprisonment imposed,
on foot of orders or directions made by the Secretary of State,
this might amount to arbitrary detention such as would breach
61. JUSTICE considers that, in the context
of permanent anti-terrorist legislation, the powers to make delegated
legislation under this provision are too broad and ill defined,
and therefore risk infringing Convention rights. This would pose
a particular danger where such powers were exercised under the
62. In conclusion, JUSTICE considers that
several areas of the Bill raise significant human rights difficulties.
In particular, JUSTICE is concerned that:
- The broad definition of terrorism in the Bill
means that the implementation of the Bill could, in practice,
give rise to breaches of the human rights standards contained
in the Human Rights Act.
- The restrictions on freedom of expression and
assembly imposed by Clause 12 represent a clear breach Convention
rights, which will necessitate further consideration of the section
19 statement of compatibility that has been made in respect of
- The inclusion of reverse onus of proof clauses
in the Bill and their implementation in practice raises difficulties
in regard to Article 6(2) and may give rise to human rights challenges.
- The delegated powers granted by the Bill are
too broad, and are subject to insufficient parliamentary scrutiny.
17 (Cm 3420) Back
Clause 41 and Schedule 7 of the Terrorism Bill Back
Brogan v United Kingdom (1988) 11 EHRR 117 Back
(1989) 11 EHRR 117 Back
Sunday Times v UK (No 2) (1992) 14 EHRR 123 Back
Measures creating a "chill" effect on freedom of expression
have been held to breach the ECHR, in the absence of exceptional
circumstances: Goodwin v UK(1996) 22 EHRR 123; Jersild
v Denmark (1994) 19 EHRR 1 Back
Surek v Turkey (No 2) 24122/94, 8 July 1999; Incal v
Turkey, 22878/93, 9 June 1998 Back
Ceylan v Turkey, 23556/94 July 8, 1999; the court has found
in some cases that restrictions on freedom of expression are permissable
within a state's margin of appreciation in the face of a terrorist
threat: but this has been in the context of particularly virulent
speech amounting to hate speech: see Surak v Turkey (No
1) 26682/95, 8 July 1999; Surek v Turkey (No 3), 24735/94,
8 July 1999. Back
See Surek and Ozdemir v Turkey 23927/99, 8 July 1999. Back
United Communist Party of Turkey v Turkey; 26 EHRR 121;
Socialist Party v Turkey 21237/93, 25 May 1998. Back
Sections 16A and 16B were in turn based on Sections 30 and 31
of the Northern Ireland (Emergency Provisions) Act 1991. Back
Barbera, Messegue and Jabardo v Spain (1989) 11 EHRR 360. Back
Lingens v Austria (1981) 26 DR 171. In that case the European
Commission of Human Rights also looked at the legal purpose behind
the defence before deciding that there has been no violation of
Article 6(2). Back
Salabiaku v France A/141-A (1991) 13 EHRR 379. Back
(1989) 11 EHRR 360. Back
(1993) 16 EHRR CD 26. Back
Judgment was handed down on 30th March 1999 in the Queen's Bench
Divisional Court and then on appeal in the House of Lords, on
29th October 1999. Back
In contrast, codes of practice issued under PACE are subject to
an affirmative resolution procedure. Back
Kokkinakis v Greece A 260-A (1993) Back