Human Rights Watch Concerns and Recommendations on the United Kingdom

Human Rights Watch welcomes the upcoming review of the United Kingdom (UK) by the Human Rights Committee. This briefing provides an overview of our main concerns with regard to the UK’s compliance with the International Covenant on Civil and Political Rights (ICCPR). We hope it will inform the Committee’s review of the UK and that the areas of concern highlighted here will be reflected in the Committee’s concluding observations and recommendations to the UK.

Attacks against human rights (Article 2, paragraph 2 of the list of issues)

Plans by the UK government to repeal the UK’s Human Rights Act, which incorporated the European Convention on Human Rights (ECHR) into domestic law, threaten to seriously undermine human rights protections in the UK. On May 27 the government announced that it would put forward proposals to the current parliament for a “British Bill of Rights” that would replace the Human Rights Act.  Recent statements by Conservative Party politicians suggest the new legislation would be aimed at weakening, not strengthening or expanding human rights protections, including removing the application of human rights law to the acts of UK armed forces and officials outside the territory of the UK.

Senior Conservative politicians have also indicated that they will seek to make the role of the European Court of Human Rights purely advisory in relation to the UK, which would allow UK parliamentarians and judges to ignore rulings with which they disagree. Conservative politicians have argued that the Court has applied the ECHR in a way that extends its scope far beyond what its authors had intended, and that its role should therefore be curtailed. If the UK fails to obtain an agreement from the Council of Europe, they have also threatened to withdraw from the European Convention. Such a move would seriously weaken the Convention and the authority of the Court, and cause significant damage to the human rights protections enjoyed by people in other Council of Europe countries for whom the Court offers the only real chance for justice. It would also gravely damage the credibility of the UK government when raising human rights concerns with others, not least through the UN system.

The Committee should urge the UK to abandon its plans to scrap the Human Rights Act and withdraw from the European Convention and commit to maintaining its membership of the Convention and to implementing the Court’s rulings.

Counterterrorism legislation (paragraph 11 of the list of issues)

The UK’s Counter-Terrorism and Security Act 2015, which became law in February 2015, includes measures that breach the rights to free movement, family life, and free expression under articles 12, 17 and 19, and the UK’s duty to avoid statelessness under the 1961 Convention on the Reduction of Statelessness.

Under Schedule 1 of the Act, police officers can confiscate a person’s passport for up to 14 days, a period that can be extended for a total of 30 days, if they have reasonable grounds to suspect that he or she intends to travel abroad to participate in terrorism-related activities. After 72 hours, the decision to confiscate the person’s passport is reviewed by a senior police officer. A judicial authority must decide whether to grant any extension beyond the first 14 days, but it can exclude the person whose passport has been confiscated or the person representing him or her from any part of the hearing. Under Schedule 1, paragraph 10 of the Act, the judicial authority can also allow for information on which the police have relied on to confiscate a person’s passport to be withheld from that person on several grounds including national security as well as preventing interference with evidence of a terrorism-related activity, or that “a person would be interfered with or physically injured” if that information were disclosed.  Granting the police the power to confiscate a person’s passport, which amounts to a de facto ban on travel outside the country, in the absence of an independent and fair review by a court of law, breaches the right to free movement under article 12.

The Committee should call on the UK to ensure that interferences with the right to free movement through the confiscation of passports only take place when strictly necessary to protect national security, that they are proportionate to achieve that aim, and that a person whose passport has been confiscated can challenge the decision to confiscate his or her passport as well as the decision to extend that confiscation, if relevant, before a court of law. He or she should be able to see, and challenge, evidence on which that decision was taken.

The Counterterrorism and Security Act 2015 also enables the UK government to issue “temporary exclusion orders” against UK residents or citizens suspected of being involved in terrorism related activities, banning them from returning to the UK for two years. Under Part 1, Chapter 2 of the Act, the government must apply to a court for permission to issue such an order. But the court only decides whether the government’s decision to issue a temporary exclusion order is “obviously flawed.” The court can consider the application in the absence of the person subject to the exclusion order, without that person being notified of the application for an exclusion order affecting him or her and even if the person has not been given an opportunity to make a representation before the court.  Temporary exclusion orders have the effect of invalidating a UK citizen’s passport, making them de facto stateless during that period, in breach of the UK’s duty under the UN Convention on the Reduction of Statelessness of 1961. 

The Committee should clearly state the UK’s responsibilities to respect freedom of movement, under article 12, in particular the right of any citizen to enter his or her country and urge the UK to repeal the provisions of the Counterterrorism and Security Act 2015 that allow it to ban its citizens from returning to the UK.

The Act also allows the government to require terrorism suspects subject to restrictions on their movement and association under Terrorism Prevention and Investigation Measures (TPIM) to live as far as 200 miles from their current home. This can interfere with the person’s work and family life and with the life of their family members who could include children at school.

The Committee should recommend that the UK ensure that requirements on a person to relocate do not have a disproportionate impact on their right to private and family life, and the rights of family members who could be affected by such a decision.  (For more information, please see https://www.hrw.org/news/2014/12/01/uk-new-counterterrorism-bill-curbs-rights).

On May 27, the government also announced it would propose an “extremism bill” to “stop extremists promoting views and behaviour that undermine British values.” The Committee should urge the UK to ensure that such measures do not breach its obligation to respect freedom of expression, and do not stigmatise people from a particular community or religion.

Deportations with assurances (Article 7, paragraph 27 of the list of issues)

The UK continues to rely on “diplomatic assurances” against torture as a means of deporting foreign nationals suspected of terrorism-related offenses to countries where they face a real risk of torture and or other ill-treatment. The UK has agreed “memoranda of understanding” (MoUs) with Jordan, Lebanon, Ethiopia, and Morocco, which provide “diplomatic assurances” that the person deported on national security grounds will receive humane treatment in the country to which he or she has been transferred as well as post-return monitoring. A similar agreement with Libya is now deemed inactive by the UK government. The UK has also exchanged letters to that end with Algeria.

Diplomatic assurances are an ineffective safeguard against the risk of torture and other ill-treatment in countries where torture and ill-treatment are practised routinely, whether or not they are formalized in a memorandum of understanding and irrespective of any post-return monitoring mechanisms that may be in place. The use of such assurances to remove a person to a country where he or she is at real risk of torture constitutes a breach of Article 7 of the ICCPR.

Following a 10-year legal battle in the UK and before the European Court of Human Rights to avoid deportation from the UK, the Jordanian preacher Omar Othman, often known as Abu Qatada, returned to Jordan in July 2013. Abu Qatada agreed to return after the UK ratified a treaty with Jordan promising that Jordanian courts would not admit evidence obtained through torture or other ill-treatment in the trial of a person returned from the UK. In January 2012, the European Court of Human Rights ruled against his deportation from the UK due to the risk that testimony from another suspect that had been obtained under torture would be admitted in the trial against him.

In July 2014, Jordan’s State Security Court acquitted Abu Qatada of involvement in a 1998 terrorism plot and on September 24 the same court exonerated him for alleged involvement in a separate 2000 plot. However, in the first case the Jordanian court admitted as evidence a 1998 confession by a former co-defendant implicating Abu Qatada in the terrorism plot. The confession was later recanted by the co-defendant, who said that Jordanian intelligence officers tortured him prior to his confession, and the European Court of Human Rights held that there was a real risk that the confession had been obtained by torture. Abu Qatada was only acquitted because the torture-tainted evidence was not supported by other statements or evidence. For the 2000 plot, the State Security Court did not evaluate whether the confession of another co-defendant – the primary evidence against him – was obtained under torture, but rather excluded it on the grounds that the confession did not clearly point to Abu Qatada’s involvement in the plot.

Both cases show the ineffectiveness and inappropriateness of diplomatic assurances from countries with poor records on torture. The Committee should urge the UK to abandon this practice.

Accountability for complicity in overseas torture (Article 7, paragraph 16 of the list of issues)

Despite having previously promised to establish an independent judicial inquiry into the UK’s involvement in renditions and complicity in overseas torture, in December 2013, the UK government announced that the matter would instead be investigated by the Intelligence and Security Committee (ISC). The ISC is a parliamentary body that has repeatedly failed to hold the government to account for failings of the security services. It was also criticized by the UK Parliament Human Rights Committee for a previous 2007 investigation into UK involvement in renditions, which had exonerated the UK government.

The UK government launched a first inquiry, led by retired judge Sir Peter Gibson, in 2010. The inquiry was shelved by the government in January 2012 before it had concluded its work or questioned any witnesses, after nongovernmental organizations (NGOs) strongly criticised its inadequate powers and lack of independence, and because of concerns that it could not pursue its work until new criminal investigations into UK complicity in torture had been concluded.

The inquiry presented its preliminary report to the government in June 2012, but the report was not published until December 19, 2013. The Gibson report contains many questions that the inquiry believes must be answered, but was unable to, and relate to the interrogation and treatment of detainees, rendition, training, and guidance for UK personnel. While the report does not reach any firm conclusions, it strongly suggests that UK security services, at least in some cases, were aware that detainees were being tortured by foreign governments yet continued to engage with them.

Significant evidence that UK authorities were complicit in torture and rendition to torture is already available. In 2009, Human Rights Watch documented complicity by the UK security services in torture in Pakistan. In September 2011, our research also revealed that the UK security services were complicit in the rendition of two prominent opponents of the Gaddafi regime, Sami al-Saadi and Abdul Hakim Belhadj, to Libya under Muammar Gaddafi, despite knowledge that they were likely to be tortured. Criminal investigations into both cases have been ongoing for several years with no public statements as to when they will be concluded and if anyone will be prosecuted. The UK government has opposed Belhadj's civil claim for compensation. In December 2013, a court of first instance ruled he had no right to compensation on the grounds that the court could not rule on the conduct of US officials outside the US, under the principle of 'act of state,' but in October 2014 the Court of Appeal overruled that decision, having found that “the risk of displeasing [the UK’s] allies or offending other states” is no grounds to prevent justice. The UN Special Rapporteur on torture and the Chair-Rapporteur of the UN Working Group on Arbitrary Detention are interveners in the case.

The Committee should call on the UK to honour its commitment of an independent judicial inquiry into the UK’s involvement in renditions and overseas torture without further delay.

Accountability for abuses by UK forces in Iraq (Article 7, paragraph 16 of the list of issues)

Allegations of torture and cruel, inhuman, and degrading treatment by UK forces in Iraq from 2003 to 2009 have continued to increase, particularly since the departure of UK armed forces. Over 180 allegations of abuse have been submitted to the UK courts. Successive UK governments have continued to resist a full public inquiry and have failed to take steps to ensure genuine independent criminal investigations and prosecutions into torture and ill-treatment by UK forces, including possible command responsibility for senior political and military figures. The “Iraq Historic Allegations Team” was set up to investigate all allegations of abuse, but has been criticized by a UK court as lacking independence because it included military police. It now includes naval police, who are still subject to the military chain of command. It is striking that this process has not led to a single prosecution. There is no indication that senior military and political figures have been investigated under command responsibility, let alone faced prosecution. Following a submission of evidence to the International Criminal Court's Office of the Prosecutor, the prosecutor announced in May 2014 she was opening a preliminary examination into the allegations of war crimes.

One public inquiry was forced on the government following a court ruling into the death of an Iraqi hotel receptionist in British custody, Baha Mousa. The inquiry found that his death in UK military detention in 2003 occurred after serious abuse by members of the UK armed forces. Yet only one soldier, Corporal Donald Payne, was convicted of crimes related to this abuse and sentenced to just one year in prison. No prosecutions took place after the public inquiry had documented the criminal abuse that led to the killing of Baha Mousa. A second inquiry investigated the so-called “Danny Boy” incident in Iraq in 2004, concerning allegations of abuse of Iraqis following a gunfight between British troops and fighters for the Mahdi Army. This inquiry opened in early 2013, again after the government had been ordered to do so by a UK court. It published its findings in December 2014. Although it rejected the allegations of murder of Iraqi detainees, it did find evidence of serious mistreatment of Iraqi detainees, including deliberate deprivation of food and sleep and blindfolding of detainees for the purposes of interrogation.

British soldiers have come forward with information that “[p]ersonnel from two RAF [Royal Air Force] squadrons and one Army Air Corps squadron were given guard and transport duties” at Camp Nama, a secret prison at Baghdad International airport, where US military and civilian interrogators subjected detainees to electric shocks, hooding, and other physical abuse, according to a report in the Guardian published in April 2013.

In 2006, Human Rights Watch documented extensive abuse against detainees at Camp Nama, where they were regularly stripped naked, subjected to sleep deprivation and extreme cold, placed in painful stress positions, and beaten. The UK Ministry of Defence has refused to acknowledge whether ministers knew of human rights abuses taking place at the prison or to reveal how British airmen and soldiers were helping to operate the secret prisons.

Following the report of the inquiry into the death of Baha Mousa, the UK government announced it would accept all the inquiry's recommendations, bar one. One recommendation it did accept would be that military detention centres overseas (i.e. in Afghanistan) would receive independent inspections by HM Inspectorate of Prisons, the UK's national preventative mechanism. However, in March 2014, the UK minister for the armed forces told parliament that such inspections would not take place.

The UK ruling Conservative party has suggested that its proposals for replacement of the Human Rights Act with a British bill of rights would also remove the application of human rights law to the activities of UK armed forces and officials outside the territory of the United Kingdom.

The Committee should recommend to the UK that it ensure a full and general inquiry into all allegations of serious human rights violations committed by UK forces in Iraq. The Committee should also urge the UK to ensure that where evidence exists of serious crimes being committed by UK forces, including unlawful killing, torture and cruel, inhuman or degrading treatment or punishment, all individuals responsible are prosecuted, including those with command responsibility. The UK should drop any proposals to remove the application of human rights law to UK armed forces and officials for acts committed outside UK territory

Abuses against migrant domestic workers (Articles 2 and 8, paragraph 26 of the list of issues)

Research by Human Rights Watch and others has shown serious abuse against many migrant domestic workers by their employers in the UK. Workers described being made to work extremely long hours without breaks, not being fed properly, being confined to their employer’s home, having their passport confiscated by their employer, physical and psychological abuse, and being paid very little wages or not at all.

Those who are subject to abuse face the difficult choice of leaving their employer and becoming undocumented migrants; returning to their home country, where they are often under pressure from their families to provide for them by working abroad; or remaining with their employer. The UK removed the right for migrant domestic workers to change employer in April 2012 as part of a broader effort to limit migration into the UK.

By denying migrant domestic workers entering the UK on “Overseas domestic worker” visas the possibility of changing employer, the UK is failing to protect them from forced labour under Article 8 and other abuses.

Section 53 of the UK’s Modern Slavery Act 2015 only allows a migrant domestic worker to work as a domestic worker for another employer if a public authority has determined that they are a victim of slavery of trafficking and only for a maximum of six months. The new provision fails to adequately address the problems posed by the UK’s overseas domestic worker visas as it does not protect victims of abuse who have not reported the abuse to the authorities. Research by Human Rights Watch has shown that fear of being sent back to their home country, where family members often rely on them for their livelihood, deters many domestic workers who face abuse from contacting the authorities. Restricting the right to change employer to those who successfully make an application as victims of slavery or human trafficking fails to protect the majority of migrant domestic workers and to prevent such abuse by depriving them of a right to decide to leave an abusive employer. The six month limit is inadequate given the nature of domestic work, which often involves caring for children and/or elderly or sick people, and could deter potential employers from hiring a person who would have to leave the country after such a short amount of time.

An independent review of the overseas domestic worker visa is being conducted at the time of writing and is due to report to the government by July 2015. The terms of reference of the review include whether the terms of the visa, including the prohibition on changing employer, have led to slavery or trafficking.

Since leaving their employer makes them undocumented and liable to removal from the UK, migrant domestic workers are unlikely to pursue criminal charges against their employer. The UK is failing in its obligation to provide migrant domestic workers who suffer abuse with an effective remedy under Article 2 and to respect their right to a fair hearing under Article 14. Should they wish to file a complaint with the police or pursue a civil case against their employer, their lack of immigration status means that they cannot work legally in the UK and support themselves while the case goes forward. Cuts in legal aid since April 2013 for employment and immigration cases restrict such aid to trafficking victims, excluding migrant domestic workers who face abuse such as unpaid wages or excessive working hours. While the government announced in June 2014 that victims of modern slavery offenses would be entitled to civil legal aid, they would have to qualify as victims of one of those offenses.

The Committee should urge the UK to restore the right for migrant domestic workers to change employer in the UK regardless of whether they have reported abuse to the authorities. The right to change employer should apply for a period of time that reflects the nature of their work, such as a one year renewable period. It need not give rise to a route to permanent residence in the UK. We would also welcome a recommendation by the Committee for the UK to ratify the International Labour Organization (ILO) Domestic Workers Convention, which recognizes that domestic workers are entitled to the same rights and protections as other workers.

Women in the detained fast track asylum procedure (Articles 2, 7, and 9, paragraph 27 of the list of issues)

The UK’s “detained fast track” is an accelerated procedure for assessing asylum claims, intended for claims by men or women that, according to the UK Border Agency—replaced by the Home Office Visas and Immigration in April 2013—can be decided “quickly.” Human Rights Watch found in research in 2009 that at the time, asylum seekers in the detained fast track were denied adequate legal representation and access to medical or other experts to help them build their case. Complex asylum cases require time for lawyers to build the asylum case and gather the necessary evidence, and Human Rights Watch research showed that such cases are being processed through the fast track system, even though it was designed for much simpler claims. On July 9, 2014, the UK High Court ruled that the fast track asylum system did not provide the applicants in the case with adequate and timely legal representation to prepare their case. [1] Following the ruling, the UK Home Office announced measures to allocate lawyers to asylum applicants no later than two days after they are placed in the detained fast track, and to allow four working days between the allocation of a lawyer and the asylum interview.

Unable to put their claims forward effectively, the system puts people at risk of being removed from the UK to countries where they may face persecution under the refugee convention, torture, or other ill-treatment, in breach of Article 7. The lack of an effective remedy available to them under the detained fast track constitutes a breach of Article 2. Asylum-seekers and their representatives who wish to appeal a negative decision under the detained fast track have only seven working days to prepare their case. On June 12, 2015, the High Court ruled that the system is unlawful.[2] The judge in the case described the fast track rules as “structurally unfair” due to what he termed the “serious procedural disadvantage which comes from the abbreviated timetable and curtailed case management powers together with the imposition of this disadvantage on the appellant by the respondent to the appeal.” At this writing, the UK government had indicated it intended to appeal.

Human Rights Watch research has also found that asylum claims of women who suffered sexual violence, domestic abuse, female genital mutilation, or were victims of trafficking were in effect denied a fair hearing through the detained fast track, which constitutes a breach of Article 14.

We also documented cases where women whose asylum claim had been rejected, but could not be returned to their country, were detained for several months, in breach of their right to liberty under Article 9.

A parliamentary report on the use of immigration detention in the UK in March 2015 found that “the failures of the screening process and the inherent stressful environment of being detained are not generally conducive to allowing asylum seekers to receive they need and are entitled to and are counter-productive to high quality decision making.”[3]

Human Rights Watch recommends that the Committee call on the UK to abolish the “detained fast track.” In the interim, the UK should ensure that detention of asylum seekers is only used as a last resort when all alternatives are unsuitable, and that it is for the shortest period of time possible. The UK should also ensure that asylum applicants are provided with adequate legal representation and sufficient time to prepare and put forward their asylum claims effectively.

The UK has yet to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), which it signed in 2012. Under that convention, states must develop gender-sensitive reception procedures for women seeking asylum and gender-sensitive asylum procedures. Human Rights Watch would welcome a recommendation by the Committee for the UK to ratify and implement the Istanbul Convention. 

Mass surveillance (Articles 17 and 19, paragraph 28 of the list of issues)

Revelations by former United States National Security Agency (NSA) contractor Edward Snowden included credible evidence that the UK’s Government Communications Headquarters (GCHQ) is engaged in cooperation with the NSA in mass surveillance of people in the UK and overseas and breaching the rights of millions of people to privacy and to freedom of expression under Articles 17 and 19 respectively. Instead of engaging in a constructive debate on its involvement in mass surveillance, the UK government has introduced legislation that further extends the scope of surveillance by its intelligence agencies without adequate safeguards against abuse.

The Data Retention and Investigatory Powers Act, a government-sponsored law presented to parliament in July 2014 under an emergency procedure, enables the government to require telephone and internet companies in the UK and abroad to collect metadata on their customers’ communications and store it for up to 12 months. The legislation was presented to parliament over three months after the Court of Justice of the European Union (CJEU) ruled that blanket data retention breaches the right to privacy. Parliament was only given three days to review it.

The new law fails to address the concerns raised by the CJEU in its ruling, which found that blanket data retention requirements disproportionately interferes with the rights to privacy and to the protection of personal data.  The new law also goes further than the regulations it was purported to replace by expanding the government’s surveillance powers extraterritorially. The new law subjects a range of internet and telecommunications companies outside the UK to orders for intercepting the content of communications, considerably extending the government’s surveillance capabilities and reach.

In November 2014, the UK government disclosed the existence of policies allowing UK intelligence agencies to intercept confidential lawyer-client communications on national security grounds. In February 2015 the UK government admitted that it had been monitoring privileged communications between lawyers and their clients in the case brought by Sami al-Saadi and Abdel Hakim Belhadj - two Libyan opponents to the Gaddafi regime rendered to Libya in 2004 with the UK’s complicity - before the Investigatory Powers Tribunal (IPT), a judicial body that can hear complaints from persons who believe they have been subjected to unlawful surveillance. Undermining the confidentiality of privileged lawyer-client communications not only breaches the right to privacy under article 17, it also puts at risk the rights to an effective remedy under article 2 and to a fair trial under article 9.

In July 2013, UK officials forced the Guardian newspaper, which had published articles based on Snowden’s revelations, to destroy hard drives containing copies of some of the files leaked by Snowden—even after being told by the Guardian that it kept copies of the data outside the UK. In August 2013, David Miranda, the partner of the former Guardian journalist Glenn Greenwald who reported on the material disclosed by Snowden, was held for nine hours at Heathrow airport without charge, the maximum time allowed under the UK Terrorism Act of 2000 Schedule 7, and his laptop, mobile phone, DVDs, and camera were confiscated. His treatment appeared to be aimed at intimidating journalists reporting on surveillance in the UK and was criticised by the UN Special Rapporteurs on freedom of opinion and expression and on human rights and counter-terrorism. Forcing the Guardian to destroy their hard drives and the detention of David Miranda raise serious concerns about the UK’s respect of the right to freedom of expression under Article 19.

On May 27, 2015, the government announced that it would propose a new “investigatory powers bill” that could expand the scope of UK surveillance even further.  This announcement also follows statements from Prime Minister David Cameron on January 12, 2015 that suggest such legislation might require Internet companies to weaken the security of their services to enable law enforcement access to encrypted communications.  Yet as recently documented by the UN Special Rapporteur on freedom of expression in his 2015 report on the use of encryption and anonymity in digital communication, intentionally compromising encryption, even for legitimate purposes, weakens everyone’s security online. 

As provided by the Data Retention and Investigatory Powers Act, an independent review of UK legislation governing surveillance was conducted by David Anderson QC, the Independent Reviewer of Terrorism Legislation. In his report published on June 11, 2015, Anderson called for a new surveillance law to replace the existing legislation which he described as “incomprehensible, unnecessary” and “undemocratic.” He also urged for all interception warrants to be subjected to judicial authorization.

The Committee should urge the UK to ensure that any new legislation strictly complies with the UK’s obligations under the Covenant including the rights to privacy and to free expression. The UK should also review its existing laws governing surveillance and bring them in line with international human rights standards, in particular the principles of necessity and proportionality of any interference with private communications. It should also introduce a system of judicial authorizations for all interception warrants.