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U.K.: Proposed Anti-Terrorism Measures Threaten Fundamental Rights

Proposals Risk Complicity in Torture, Unfair Trials, and Criminalizing Expression

Counter-terrorism measures presented by Prime Minister Tony Blair last week, coupled with this week’s proposal for special anti-terrorism courts, are deeply worrying, said Human Rights Watch. Some of the measures under discussion appear to be in outright breach of the U.K.’s human rights obligations and others are so ill-defined and overbroad that they risk criminalizing valid forms of dissent and undermining freedom of religion, said the group.

The proposed measures include the deportation of foreigners deemed “extremist” to places where they might be at risk of torture; a new offence criminalizing speech that amounts to “indirect incitement,” including speech that justifies or glorifies terrorism; extended time periods for pre-trial detention without charge; and the closure of places of worship used to “foment extremism.” A proposal is also under consideration to establish special anti-terrorism courts with some proceedings held in secret, court-appointed advocates to represent a suspect, and no access to evidence by the suspect.

“The U.K. government must protect the public from acts of terrorism,” said Holly Cartner, executive director of Human Rights Watch’s Europe and Central Asia division. “But the government assumes that the public and the courts will readily accept measures that could implicate the U.K. in torture, arbitrary detention, unfair trials, and stripping people of their right to voice dissenting opinions and practice their religion. The authorities are grasping at straws, instead of setting a rational and effective course that provides security and protects rights at the same time.”

Deporting a person to risk of torture violates U.K. and international law. The prohibition is absolute and permits no exceptions, even on national security grounds. The government has said it will seek “diplomatic assurances” from governments in countries where torture is practiced to effect such transfers. In a June 23 letter to Prime Minister Blair, Human Rights Watch warned that experience has shown that diplomatic assurances from regimes where torture is routine do not provide an effective safeguard against such abuse. Blair has said that, “should legal obstacles arise,” he will seek to amend the U.K. Human Rights Act to accommodate such transfers. The former home secretary David Blunkett has publicly warned judges “in the strongest terms” that the government would not tolerate any judicial attempt to overturn the new anti-terrorist measures outlined last week.

“A human rights act amended to permit complicity in torture makes a mockery of the very notion of rights protection,” said Cartner. “The threat of terrorism does not give senior politicians carte blanche to substitute their views for the rule of law. It would appear that the government has forgotten the very values it says it is fighting for.”

The proposed measures also call for the criminalization of some forms of speech, including “justifying or glorifying terrorism” and the expression of “extreme views that are in conflict with the U.K.’s culture of tolerance,” whether uttered or penned in the U.K. or abroad. The government has proposed that persons within the U.K. would be subject to deportation for such a speech offense and those seeking access to the country would be excluded from entry if their speech was deemed to pose a threat to national security, public order, or the U.K.’s relations with a third country. Such vague definitions of prohibited speech raise serious concerns that the measure is overbroad and could criminalize valid dissent. Moreover, the absence of a geographical limit would make it extremely difficult to draw a link between offending speech and any violence suspected of having resulted from it outside the U.K.

“As it stands, this speech offense casts an unacceptably broad net,” said Cartner. “There must be a link between words that incite and acts of violence for speech to be criminal. The government risks choking free expression.”

The proposal to establish special anti-terrorism courts raises serious concerns about the erosion of fundamental fair trial standards, including access to counsel and evidence, and arbitrary detention. Security-cleared “special advocates” could hear evidence against the accused in closed hearings, but would not be able to reveal any of that evidence to the accused or to his or her chosen counsel. A single judge would decide whether and how long a person could be held in preventive detention without charge or trial based on the evidence.

“The U.K. government has already been brought to book for its indefinite detention regime,” said Cartner. “Secret hearings, based on secret evidence, with little access to effective counsel harken back to the Belmarsh debacle. Hasn’t the British government learned a lesson?”

Other proposals that implicate fundamental human rights protections include a new power to order the closure of a place of worship used as a “centre for fomenting extremism” and the exclusion of certain Muslim clerics outside the U.K. who are deemed “not suitable to preach” and who will be excluded from the U.K. in the future. These proposals implicate the freedom to manifest one’s religion or beliefs in worship, practice, or teaching. The U.K. government can only impose limits on such rights in very narrow circumstances prescribed by international law. Collective punishment is not only illegal, but also particularly divisive in the current climate. The government should take into consideration the profoundly negative impact that such measures could have on the affected communities.

“The punishment of an entire community is not the answer. If there is evidence that a person has committed a crime, specific charges should be brought against him or her,” said Cartner. “The closure of mosques or other houses of worship could be perceived as labeling an entire community as somehow involved in terrorism. This is hardly the way to inspire confidence in certain communities, the Muslim community in particular.”

A consultation paper on the deportation and exclusion measures is currently open for public review and comment. Draft proposals reflecting all the measures are scheduled to be presented to parliament in September.

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