Rt Hon Jacqui Smith MP
Secretary of State for the Home Department
2 Marsham Street
London SW1P 4DF
Rt Hon David Miliband MP
Secretary of State for Foreign and Commonwealth Affairs
Foreign and Commonwealth Office
King Charles Street
London SW1A 2AH
8 October 2008
Dear Home Secretary and Foreign Secretary,
We are writing to call your attention to the conclusions of two recent reviews of the United Kingdom's human rights record by authoritative international human rights bodies. In July, the United Nations Human Rights Committee conducted a comprehensive review of the UK's compliance with the International Covenant on Civil and Political Rights (ICCPR). In April, the UK was one of the first countries to be reviewed under the new Universal Periodic Review procedure at the UN Human Rights Council. Both processes involved rigorous questioning of the compatibility of UK counterterrorism law and policy with its international human rights obligations.
Human Rights Watch has been monitoring the development of counterterrorism laws and policies in the UK since the late 1990s. The concerns expressed by the Human Rights Committee, as well as by peer countries during the Universal Periodic Review (UPR), reflect many of our own findings. We urge you to act on the recommendations formulated in the Concluding Observations of the Committee and the Report of the Working Group on the UPR of the UK in order to bring its law and practice into full compliance with international human rights law.
Extended Pre-charge detention. The Human Rights Committee expressed its concern over the Counter-Terrorism Bill 2008-with its "potentially far-reaching effects on the rights guaranteed in the Covenant"-and in particular on the proposed extension of pre-charge detention. The Bill would give the Home Secretary a reserve power to temporarily authorize 42 days of pre-charge detention in terrorism cases. The Committee stressed that while it was "disturbed" by a 28-day period, it was "even more disturbed" by the proposed 42-day period. Reminding the UK government that ICCPR article 9 guaranteeing the right to liberty and security of the person is fully applicable, the Committee recommended that terrorist suspects be promptly informed of any charges and tried within a reasonable time or released (emphasis in the Concluding Observations).
This issue was taken up also in the UPR of the UK at the Human Rights Council. Indeed, no fewer than eight countries asked questions about or directly criticized extended pre-charge detention during the review. The Report of the Working Group on the UK review noted the recommendations that the UK "strengthen guarantees for detained persons" and "introduce strict time limits on pre-charge detention of those suspected of terrorism."
The comments of the Committee are further confirmation that the current 28-day period already violates the right to liberty under the ICCPR [and therefore also the European Convention on Human Rights (article 5)]. A further extension is unnecessary, disproportionate and counterproductive. The proposed safeguards are inadequate to protect against arbitrary detention, and the government has failed thus far to provide convincing evidence that such lengthy pre-charge detention is necessary. Human Rights Watch issued a briefing paper detailing its concerns with the Counter-Terrorism Bill 2008, including extended pre-charge detention, in July 2008.
Control orders. While several countries asked questions of the UK about control orders in the context of the UPR, the Human Rights Committee expressed its explicit concern about the imposition of a wide range of restrictions on individuals who have nonetheless not been charged with a criminal offence, the fact that breach of control orders can give rise to criminal liability, and about the use of secret evidence in closed sessions in the judicial proceedings to challenge the imposition of a control order.
The Committee concluded that these aspects of the control order regime are incompatible with ICCPR articles 9 and 14 (guaranteeing the right to a fair trial). Consequently, the Committee stipulated that the UK should ensure that the judicial procedure for imposing a control order comply with the principle of equality of arms, in particular with respect to access of the concerned person and his or her legal counsel to all the evidence. It added that the UK government should take steps to ensure that criminal charges are brought promptly against those subject to control orders.
Human Rights Watch first expressed its concerns about control orders when the Prevention of Terrorism Act 2005, which created the regime, was still under debate. The Act gives the executive branch the authority to impose serious restrictions on a range of protected rights for an indefinite period of time on the basis of a low standard of proof and secret evidence. These concerns, and our recommendations to improve the safeguards in the procedure for imposing control orders, are laid out in a March 2005 commentary on the Prevention of Terrorism Bill 2005 as well as in a June 2007 briefing paper, Hearts and Minds: Putting Human Rights at the Center of United Kingdom Counterterrorism Policy.
Access to a lawyer. Mindful that the right to access to a lawyer immediately upon detention constitutes a fundamental safeguard against ill-treatment, the Human Rights Committee expressed its concern that Schedule 8 of the Terrorism Act 2000 allows the police to delay a terrorism suspect's access to a lawyer for up to 48 hours. The Committee said the UK government had "failed to justify this power," and urged the government to ensure that anyone arrested on criminal charges have immediate access to a lawyer.
The UK delegation was asked about delayed access to a lawyer for terrorism suspects during the UPR question and answer session, and the Report of the Working Group noted the recommendation that the UK "enshrine in legislation the right of access of detainees to a lawyer immediately after detention."
Encouragement of terrorism. The Human Rights Committee criticized the definition of "encouragement of terrorism" in section 1 of Terrorism Act 2006 as "broad and vague," particularly because an individual can commit the offence in the absence of any intent, insofar as statements are understood by some members of the public to constitute encouragement to commit acts of terrorism. The Committee said the government should amend the language on this offense in Terrorism Act 2006 to avoid "disproportionate interference with freedom of expression" guaranteed in ICCPR article 19.
The Report of the Working Group on the UK UPR included a recommendation that the UK "harmonize its legislation with its human rights obligations towards individual protesters exercising their freedom of expression and opinion."
Human Rights Watch opposed the introduction of the criminal offense of ‘encouragement of terrorism" when it was under discussion as part of Terrorism Bill 2005 on numerous grounds. The offense is unnecessary, ill-defined, and carries an unacceptable risk of undue infringement on legitimate free speech. The unclear mental requirement for the commission of the offense and the lack of a causal link to violence are of particular concern. Our briefing paper on the 2005 bill is available here.
Stop and search powers. The Human Rights Committee expressed concern about the use of racial profiling in the exercise of stop and search powers and "its adverse impact on race relations." It recommended that the UK government undertake a review of stop and search powers under section 44 of Terrorism Act 2000 with a view to ensuring that these powers are exercised in a non-discriminatory manner. The Working Group report on the UPR of the UK reflects the concern expressed by several peer countries about stop and search powers. Section 44 of Terrorism Act 2000 gives the police the authority to stop anyone within a specified area even in the absence of reasonable suspicion of any wrongdoing.
Absolute prohibition on returns to torture and prohibited ill-treatment. The Human Rights Committee noted with concern the UK's position that persons suspected of terrorism could under certain circumstances be returned to countries without appropriate safeguards to prevent treatment prohibited under ICCPR article 7 (prohibiting torture and cruel, inhuman, or degrading treatment or punishment). The Committee recommended that the UK government "ensure that all individuals, including persons suspected of terrorism, are not returned to another country if there are substantial reasons for fearing that they would be subjected to torture or cruel, inhuman or degrading treatment or punishment."
The Committee also said that the Memoranda of Understanding concluded by the UK government in order to deport terrorism suspects with assurances "do not always in practice" ensure that the affected individuals will not be subjected to torture or prohibited ill-treatment.
Human Rights Watch, as well as a number of international experts, such as the UN special rapporteur on torture and the Council of Europe human rights commissioner, take the view that diplomatic assurances are never an effective safeguard where there is an acknowledged risk of torture or ill-treatment. Our extensive research on the use of diplomatic assurances is available here. Our concerns about the UK policy of pursuing Memoranda of Understanding are detailed in various documents, including the briefing papers Hearts and Minds and Dangerous Ambivalence: UK Policy on Torture since 9/11.
Extraordinary Rendition flights. The Human Rights Committee criticized the use of Diego Garcia as a transit point for rendition flights of terrorism suspects to countries where they were at risk torture or ill-treatment, and urged the UK to investigate allegations of the use of UK territory for rendition flights and establish an inspection system to avoid use of UK airports for such purposes. Since the Committee's Concluding Observations were published, press reports have revealed that the US may have detained and interrogated one or more terrorism suspects on Diego Garcia in 2002 and possibly in 2003.
Human Rights Watch supports the recommendations of the Committee. We urge the UK government to initiate an independent public inquiry into the use of UK territory for renditions, and to cooperate fully with the Parliamentary Foreign Affairs Committee's inquiry into British Indian Ocean Territory, which includes Diego Garcia.
Counterterrorism measures that violate human rights are not only illegal under international law but are also counterproductive. Abusive measures undermine the UK's moral legitimacy at home and abroad, damaging its ability to win the battle of ideas that is central to long-term success in countering terrorism. We therefore urge the British government to implement all the recommendations emanating from the Human Rights Committee and the Universal Periodic Review.
We thank you for your attention and look forward to a continuing dialogue on these important matters.
Europe and Central Asia Division
Human Rights Watch
Human Rights Watch
Michael Wills MP, Minister of State, Ministry of Justice
Members of the Parliamentary Joint Committee on Human Rights
H.E. Peter Gooderham CMG, Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations, Geneva