28 March 2012
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Liberty (the National Council for Civil Liberties)
ANTI-TERRORISM, CRIME AND SECURITY BILL 2001
BRIEFING FOR THE SECOND READING IN THE HOUSE OF COMMONS
Established in 1930 as the "National Council for Civil Liberties", Liberty began its long tradition of research and lobbying on anti-terrorist legislation with its first commentary on special powers in Northern Ireland in 1936.
Liberty's comments are made with the following three principles in mind:
· The horrific events of September 11 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.
In the time available between publication of this Bill and the Second Reading in the House of Commons we have had to concentrate on those measures we believe are the most important and therefore we have not dealt with all parts of the bill.
The anti-terrorism bill has now been finally published after weeks of hints, partial revelations and spin. It is being pushed as emergency legislation and, says the government, must be rushed through Parliament as quickly as possible, to be law by Christmas. To oppose it is to wish to live in an "airy-fairy" world according to the Home Secretary and evidence of support for terrorism.
Liberty's concerns about terrorism measures are reflected in the fact that of the more than 7,000 people detained in Britain (i.e. not including Northern Ireland) under the Prevention of Terrorism Act, the vast majority have been released without charge and only a tiny fraction have ever been charged with anything remotely resembling terrorism.
To take an example in 1992, when the activities of the IRA and others were still at their height, 160 people were arrested under the Act in Britain. Of these eight were charged with murder, conspiracy or possession of explosives, three were deported or excluded, twelve were charged with theft or fraud and eight with other minor offences. There is no evidence to suggest that these people charged could not have been arrested under the ordinary criminal law. However all of the others arrested, none of whom were convicted of any crime, were subjected to unnecessary arrest and detention.
The anti-terrorism laws in this country have led to some of the worst human rights abuses in this country over the last 30 years, contributed to miscarriages of justice and have led to the unnecessary detention of thousands of innocent people, mainly Irish.
We are particularly concerned to see a number of measures smuggled into this Bill which either have nothing to do with terrorism or the events of 11th September or are very much more wide-ranging in their remit. These measures should be removed from the Bill and be added to next Home Office measure so that they can be properly considered and debated outside of the current crisis.
The most dangerous measure being proposed will give the authorities the power to intern on the basis of suspicion, to imprison not on the basis of what a person has done but what some intelligence expert thinks they might do.
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 criminalised 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 along side 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 law include:
· The Secretary of State's power to proscribe organisations and offences relating to association with such organisations .
· 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.
DISCLOSURE OF INFORMATION: PART 3
This Part of the Bill appears to be unconnected with terrorism or the events of 11th September. It must be assumed these new powers have been requested by the authorities and this is seen as suitable vehicle for delivering them. This part should be removed from the Bill or restricted to terrorist related activities.
These measures allow personal and private information to be obtained by the police and others without any controls checks or safeguards. It will allow the police to trawl through the files held by other government departments.
The police will not need reasonable suspicion that the file contains evidence of a crime merely that it is useful in an investigation. The police will not need to go to a magistrate of court for authorisation and they will be able to access files without subsequent checks or audits. The subject of these investigations is unlikely ever to be told the police have rifled through their files and there will be no real remedy if the police are mistaken, over-zealous or plain malicious.
IMMIGRATION AND ASYLUM: PART 4
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 jurisdiction).
In deciding who to detain 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 and or asylum seekers. This will add to the sense of injustice.
There will be an appeal but the person and his or her lawyer will not be entitled to see all the evidence and the appeal panel will have to exclude them when they hear that secret material. The case will not have to be proved beyond reasonable doubt, the presumption of innocence will not apply and the usual quality checks on the evidence will be missing.
These measures will only apply to foreigners and in particular those who cannot be deported because they are likely to be tortured or killed in the country that they are sent to. These people could be detained for long periods and possibly indefinitely.
There are difficult decisions to be made but there are other alternatives. Those who are planning or committing criminal offences in the United Kingdom can be prosecuted here.
Secondly the new draconian Terrorism Act, which only came into force earlier this year, extends the possibilities of prosecution here for offences committed in other countries.
Thirdly, in some cases, it will be possible to send people to face trial for offences that they have committed in other countries back to those other countries. Fourthly the security services here could keep people under surveillance given all their new powers in the Regulation of Investigatory Powers Act and ensure that they commit no offences here.
Internment has been tried before. It was tried in Northern Ireland and the consequence of intelligence being wrong was that hundreds of innocent nationalists were locked up. Its only "success" was to drive many more people into the arms of the terrorists. It was tried more recently during the Gulf War when again innocent people were locked up for no good reasons, fortunately the War did not last long and they were all released.
This time those interned are likely all to be Moslems. Some of them will be not have been convicted of any crimes and 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.
Is this a proportionate response to the current situation?
So significant is this measure that the government, only one year after enshrining the European Convention on Human Rights into our law, is having to opt out or "derogate" from one of its fundamental provisions, the prohibition on arbitrary detention. Such derogations are supposed to be reserved for "war or other public emergencies threatening the life of the nation".
There is no imminent threat of the complete breakdown of civil society in the UK. We have not reached this point as yet and although there are threats, the nation itself is not in jeopardy. That is why of the forty or so countries signed up to the Convention we are the only country indicating we want to opt out. Not even in the US where the atrocities happened has the government considered it necessary to adopt a policy of indefinite
Is the proposed derogation from Article 5 of the ECHR necessary?
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 grounds?
What is being proposed relates to circumstances where a non-British National is suspected of involvement in terrorism and the government is contemplating deportation because the person's presence in the United Kingdom is "not conducive to the public good". Some such people will not be able to be deported because, if sent to the only country that will accept them, they are likely to be subjected to treatment there that violates Article 3 of the
In such circumstances the proposal is that these people will be detained until they are no longer a threat or a country can be found to accept them which will protect them against Article 3 violations. Such indefinite detention is likely to violate Article 5 of the Convention. The relevant parts of provision state:
"5(1) …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 against whom action is being taken with a view to deportation or extradition."
Any such detention is limited in time because it requires active steps to be taken to deport or to extradite. As a result any unlimited period of detention would be unlawful under the Convention and therefore contrary to the Human Rights Act.
A derogation from parts of the obligations under the Convention can be made in specified circumstances and the Home Secretary is exercising this option. Article 15(1) states:
"In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its obligations under international law."
Certain Convention rights are however non-derogable
No protection under the Human Rights Act from unlawful derogations?
The Human Rights Act 1998 (HRA) which incorporated the Convention into domestic law also deals with the issue of derogations. The Articles of the Convention which are incorporated are subject to any 'designated derogation' or reservation but there is no requirement on the face of the Act that the derogation be lawful.
In order for a derogation to be a 'designated' derogation for the purposes of the HRA two things need to have happened. The United Kingdom must formally notify the derogation to the Council of Europe and the Secretary of State must also make an order designating the derogation.
It is arguable that section 3 of the HRA might allow the courts to attach the word "lawful" to these provisions allowing a challenge to a derogation in domestic proceedings. Further any designation order would, after all, be secondary legislation and therefore could be scrutinised by the courts on basic rationality and vires grounds, perhaps against the standard of proportionality.
However all such challenges are denied by Clause 30 except by using the Special Immigration Appeals Commission.
Challenge in the European Court of Human Rights
It seems likely that if the Government were to make a derogation from the Convention that a challenge to the lawfulness of that derogation would eventually reach the courts. It is therefore important to examine the approach the Strasbourg Court has taken to applying Article 15 and the conclusions reached.
In Lawless v Ireland (No 3) the Court stated that the words "other public emergency threatening the life of the nation" "refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed."
In an earlier case the European Commission of Human Rights took the view that the test in Article 15 had not been satisfied despite giving the State the benefit of the margin of appreciation. This case concerned applications by a number of Scandinavian countries against the regime set up by the "Greek Colonels" in 1967.
In that case the government argued that there had been a decline in public order over a number of months bringing the country to near anarchy. Between 1944 and 1967 there had been forty-one successive governments:
"the Parliamentary system had virtually broken down, with party corruption and violent incidents in the chamber. The machinery of the State was paralysed. There were daily strikes and warnings that the economy was on the verge of bankruptcy."
"vehicles and houses under construction were set on fire and barricades were erected in the centre of Athens…hundreds of policemen were killed or injured. In July 1965, 299 civilians and 250 policemen were injured."
"the Communists began in 1966 to prepare for armed insurrection. Their "clandestine apparatus" included shock brigades and groups which observed officers of the Army and security forces. The Communists were assembly weapons and disposed of hiding places and depots for equipment. A paramilitary organisation had secretly been set up."
When the HRA came into force there was one derogation in place concerning the length of pre-trial, pre-charge detention under prevention of terrorism legislation. This derogation was entered following the decision in Brogan v UK in which the European Court of Human Rights held the UK to be in breach of Article 5. The validity of the derogation was subsequently challenged in Brannigan and McBride v UK. In that case the Court decided that the national authorities are
"[b]y reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it."
It therefore afforded the Government a wide margin of appreciation. However it retained a supervisory role for itself in holding that "[I]t is for the Court to rule on whether inter alia the States have gone beyond the "extent strictly required by the exigencies" of the crisis." However the Court was not unanimous in its support for the government's position.
Although the atrocities in the United States were shocking and substantial and although some groups have identified the United Kingdom as a legitimate target of similar attacks, it is not clear whether the Court would accept that there is an "emergency threatening the life of the nation". The circumstances as they apply to the UK are not the same as the situation in the United States and the emergency is not of the same order as previously existed in Northern Ireland and as pleaded by the government in Brannigan. For instance the Home Secretary stated on 15 October that "[there] is no immediate intelligence pointing to a specific threat to the United Kingdom."
The second question that the Court must consider in any challenge is the extent to which the provisions that violate Article 5 are "strictly required" by this emergency and designed, in this case, to avoid further terrorist incidents. The European Commission of Human Rights in Ireland v UK stated:
"There must be a link between the facts of the emergency on the one hand and the measures chosen to deal with it on the other. Moreover, the obligations under the Convention do not entirely disappear. They can only be suspended or modified "to the extent that is strictly required" as provided in Article 15."
This requires, as Judge Martens states, a consideration of the second question as to whether "the derogation is to "the extent strictly required by the exigencies of the situation". The wording clearly calls for a closer scrutiny than the words "necessary in a democratic society" which appear in the second paragraph of Article 8-11. Consequently, with respect to this second question there is, if at all, certainly no room for a wide margin of appreciation."
Lastly, given the nature of terrorist threats to European countries generally, the question will need to be asked as to why is it that the vast majority of the other forty or so countries signed up to the Convention do not feel that similar measures are so "strictly required" in their countries. Overcoming this hurdle will be particularly difficult given that the assessment of the lawfulness of the measure will be by a majority of judges who come from those other countries who have not found it necessary to design provisions which involve indefinite detention without trial and which breach a fundamental right of the Convention.
Specific clauses in Part 4
In Clause 21(1)(b) the Secretary of State only has to suspect a person rather than believe a person is a terrorist (cf. 21(1)(2)). In clause 21(2) the definitions are very wide ranging allowing a person to be detained if they merely have "links" with another person. Thus the Secretary of State only has to suspect that they have links with another person to trigger the provision. There is no definition of "links". Thus a person might have "links" with another because of professional and innocent dealings (as a lawyer or doctor).
Furthermore the Secretary of State only has to suspect that the group, or that the person involved, in is concerned with the commission, preparation or instigation of acts of terrorism.
This degree of "flexibility" is in addition to the problematic and vague definition of terrorism in the 2000 Act which is defined as: the use or threat, for the purpose of advancing a political, religious or ideological cause, of action which-
(a) involves serious violence against any person or property,
(b) endangers the life of any person, or
(c) creates a serious risk to the health or safety of the public or a section of the public."
This goes beyond the previous definition in the following ways:
(1) By the addition of religious or ideological causes to that of "political ends".
(2) By including threats. Would threats to overturn the regime of Saddam Hussein by politicians be sufficient?
(3) By including "violence" to property. The terrorism provisions in the past have been reserved for the most serious cases. In particular where the offences might involve death or serious injury. To dilute this to involve "violence" to property is wrong. It is also surprising to find no definition of this. Usually damage to property is described as criminal damage.
(4) By including health or safety. Again this is a further dilution of the definition.
The difficulty with this definition is that it is capable of encompassing activities which whilst unlawful cannot properly be regarded as terrorism, e.g. animal rights activism or even in certain circumstances civil disobedience, e.g. the tree protesters, animal export protesters, or even some forms of industrial action.
We have argued before that a more focused definition is provided by the Reinsurance (Acts of Terrorism) Act 1993 (providing for the payment of monies by the Secretary of State in respect of loss or damage to property resulting from or consequential upon acts of terrorism): section 2 provides that:
"'acts of terrorism' means acts of persons acting on behalf of, or in connection with, any organisation which carries out activities directed towards the overthrowing or influencing, by force or violence, of Her Majesty's government in the United Kingdom or any other government de jure or de facto."
This definition better captures the essence of terrorism as the use of violence by or against the State in order to intimidate or coerce, cf OED, 2nd Ed, 1989.
The scope of appeals to the Special Immigration Appeals Commission have been recently restricted by the House of Lords in the case 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.
Clause 27(4) also prevents appeals from the Commission to the courts in "derogation matters" (see above).
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 terrorism
The 1951 Refugee Convention effectively provides two 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 of refuge.
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
· 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.
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, as 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 torture.
Destruction of fingerprints
Whilst we accept that in relation to those asylum seekers suspected of involvement in terrorism keeping fingerprints may be justified we do not accept that it is justified in relation to the other 99% of innocent refugees. This clause should be restricted to those to which Clause 21 applies.
INCITEMENT TO RELIGIOUS HATRED: Part 5
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.
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 very ethnic communities it was intended to protect.
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 a form of 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 having been excluded from the piece-meal legislative protection provided in relation to sex and race discrimination).
POLICE POWERS: PART 10
Clause 89 is a further provision which is not specifically related to the terrorist threat and which should form no part of this "emergency measure".
Since the Criminal Justice and Police Act 2000 the fingerprints of those acquitted or not prosecuted for offences are no longer destroyed but instead can be retained indefinitely. The provisions in this Bill substantially extend the circumstances under which fingerprints can be taken and this will lead to substantial numbers of people who have been mistakenly arrested to have their fingerprints kept.
These powers are not needed in practice because if the person if charged with a serious offence one of the factors that will be taken into account before they are released on bail will be whether the police are convinced about their identity. If they are not then bail will not be granted.
The provisions in clause 91 to take photographs by force if necessary is a new general power not related to the terrorist threat. The power for the police to take pictures for identification purposes is already available in the Terrorism Act 2000 (Schedule 8, paragraph 2).
Clause 93 provides a power for the police to demand the removal of items of clothing which the officer believes are designed to conceal identity. Failure to do so constitutes a criminal offence and one which can result in imprisonment for up to one month. This provision is not directed at suspected terrorists or even those suspected of crime but will apply automatically to all those in the designated locality. This provision should not be in this Bill.
The provision should be restricted to where the person is a suspect of terrorism. The offence does not provide a defence of "reasonable excuse" for refusal and in the context of the Bill we are concerned that this provision will be targeted at the Islamic community.
There are no apparent safeguards to ensure such religious groups are protected and that relations which such communities are not damaged further. Thought should be given to more sensitive arrangements where those who are required to remove such clothing are given the opportunity of doing so in private and in the presence of a police of the same sex.
THE COLLECTION, RETENTION AND DISSEMINATION OF COMMUNICATION "TRAFFIC
INFORMATION": PART 12
The Government is telling those companies that provide telephone and communication systems that they need to 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 attempts to regulate the process whereby law enforcement agencies obtain access to this information. However 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 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 their 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. If this material is to be retained, in violation of data protection principles, then access to this material should only be available in respect to targeted suspicion of particular people and with the authority of a magistrate's warrant.
We are particularly concerned to see that again this provision is not restricted to terrorist investigations even though it has been publicly promoted as a response to the terrorist threat.
The proposal to allow European Union law on Home Affairs matters to be implemented by way of secondary legislation we believe is wrong in principle and usurps the key role of Parliament in protecting the rights of citizens. As a result of this measure laws which make substantial changes to our criminal law and criminal justice system will be introduced with very little opportunity for debate and no possibility of amendment.
This measure is of constitutional significance and has no place in this Bill and should not be rushed through on the basis of the fear of terrorist attack.
It is clear that one reason for this provision is to change the extradition process by statutory instrument. 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 one's home and family to face detention and trial far away under foreign laws (usually 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.
Clause 111: Noxious substances
Whilst we understand the concerns that have generated this provision we are concerned that it may be too widely drawn. It appears for instance to cover the following example. If a person wished to campaign against the use of GM crops by threatening to use pesticides on a field of those crops then apparently that action could attract a sentence of 14 years imprisonment.
Clause 112: Hoaxes
We are relieved to see that the attempt to increase the sentences for such offences is not going to be retrospective. However we wonder whether a sentence of seven years, a sentence that ordinarily might be given for a very serious assault or a rape, is a proportionate sentence for a hoax.
Clause 115: Criminal offence for not providing information
This measure, which makes it an offence not to disclose information about terrorism, was contained in the previous Prevention of Terrorism Acts but not put back in the Terrorism Act 2000. It has always been part of our British tradition that although citizens were expected to assist the police it is not a criminal offence not to do so. When this provision existed before it was used oppressively against families of those suspected of terrorism.
We are also concerned given the very wide definition of terrorism in the 2000 Act (see above) that this duty is too vague and at the same time in danger of creating criminals of whole communities.
Professor Walker (an expert on terrorism) has stated:
"In Great Britain, charges under section 18 (the equivalent power in the current PTA) to the end of 1990 have been infrequent, and the results suggest that it has been invoked mostly on weak evidence and against those on the fringes of terrorism."
It has often been used against the families of those involved in terrorism to try to force them to give information about their husbands and other relatives.
Lord Shackleton recommended abolition saying:
"There are genuine doubts about its implications in principle and about the way it might be used in the course of interviewing someone... it has an unpleasant ring about it in terms of civil liberties."
Finally it has been used against journalists and creates a significant chilling effect on journalists who might otherwise decide to investigate issues in or about Northern Ireland.
This may breach Article 10 of the European Convention by limiting press freedom to collect information.
Liberty therefore supports the position that Lord Lloyd takes on section 18 of the PTA. The section changes fundamentally the relation between the citizen and the state and imposes a duty to provide information. The few prosecutions in England and Wales have demonstrated the real problems that this provision creates.
Clause 116: Port controls
This provision provides for a massive expansion in controls of those travelling within the United Kingdom.
The exercise of this power in the past has caused acute problems. The procedure for searching, detaining and examining travellers does not require any suspicion on the part of the authorities. The Terrorism Act, which this extends, provides very wide ranging powers to question individuals at ports at random and without any requirement of reasonable cause.
"An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting…" (Schedule 7, paragraph 2(4)).
These examinations can last anywhere between a few minutes to 9 hours. In 1986, when statistics were still made available by the Home Office relating to these examinations, 59,481 people were examined in that one year alone. Of that number only 147 were detained, which would suggest that the exercise has more to do with information gathering than the apprehension of terrorists.
Clause 117: Passenger manifests
We would hope that measures could be introduced to ensure that information about peoples movements could be destroyed as soon as it is no longer necessary.
Clause 120: Ministerial orders
This provision appears to give the government very wide ranging powers.
We believe that the UK already 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.
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