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Human Rights Watch Submission to the Home Office Review of Counterterrorism Powers

Human Rights Watch welcomes the Home Office's July 2010 decision to conduct a review of six key areas of UK counterterrorism powers, and we are grateful for the invitation to provide input into the review.  We further welcome the decision to appoint Lord Ken Macdonald to ensure independent oversight of the review, given his experience and insights in effectively countering terrorism while respecting human rights. 

Human Rights Watch has long expressed serious concerns about some of the powers under review, and we made many of our concerns clear while the legislation enacting them was under consideration by Parliament.  We have particular concerns about the stop and search power under section 44 of the Terrorism Act; the duration of, and safeguards present in relation to, extended pre-charge detention for terrorism suspects; the use of control orders; the offence of "encouragement of terrorism"; and the use of diplomatic assurances as means of removing national security suspects to places where they face a risk of torture ("deportation with assurances.") Our concerns and recommendations are set out below.

Consolidated Recommendations

Stop and Search under Section 44 of the Terrorism Act 2000

  • Repeal section 44 of the Terrorism Act 2000
  • Combat terrorism using stop and search powers that require reasonable suspicion, including section 43 of the Terrorism Act 2000.
  • Amend section 43 of the Terrorism Act 2000 to include searches of vehicles, where and officer has a reasonable suspicion that the driver or passenger is involved in terrorism.
  • Amend Code A of the Police and Criminal Evidence Act 1984 to make it clear that there are no circumstances in which it is permissible to take into account a person's ethnic origin when determining whom to stop. Such an amendment would not prohibit the police from stopping a person where that person matched the physical description of an individual wanted by the police.

Pre-Charge Detention

  • Reduce the maximum period of pre-charge detention. The starting point should be a reduction to 14 days and serious consideration should be given to a 7 day maximum.
  • Improve safeguards for pre-charge detention beyond the maximum 96-hour period allowed for other serious criminal offences, including by:
  • o Requiring a judge extending pre-charge detention beyond 7 days to be satisfied that reasonable grounds exist to believe the detainee may have committed a terrorism offence;
  • o Requiring the Director of Public Prosecution to approve all applications by Crown Prosecutors for detention beyond seven days.
  • o Require that the person subject to detention has the opportunity effectively to contest the evidence on which the application for extended pre-charge detention is based.

Control Orders

  • Repeal the Control Order regime and rely instead on the criminal justice system to respond to the threat of terrorism.

Encouragement of Terrorism Offence

  • Repeal the offence of encouragement to terrorism and rely on ordinary common law powers to combat direct incitement to violence.

Diplomatic Assurances against Torture

  • Halt negotiations with governments on new memoranda of understanding.
  • Halt pending deportations and extraditions in cases where there is a risk of torture or inhuman or degrading treatment.
  • Where there is sufficient evidence of criminal wrongdoing, prosecute suspects in the United Kingdom.
  • Work with countries with poor records on torture on system-wide anti-torture reform efforts with the long-term goal of eliminating the risk of torture and ill-treatment.

Stop and Search under Section 44 of the Terrorism Act 2000

Human Rights Watch welcomes the Home Secretary's decision, announced on July 8, 2010, to suspend the use of the stop and search power under section 44 of Terrorism Act 2000 against pedestrians and to permit its use for vehicle stops only where it is necessary and where the officer conducting the stop has reasonable suspicion. The decision follows the recent final ruling by the European Court of Human Rights upholding its January judgment that the use of the power violates the right to a private life.[1]

Human Rights Watch published a report in July 2010 entitled "Without Suspicion: Stop and Search under the Terrorism Act 2000."[2] A copy is annexed to this submission. The report contains a critical assessment of the safeguards in section 44 intended to prevent its misuse, including the need for authorisation by the Home Secretary, a duty to assess the impact of its use on community relations, and guidance to the police on proper use. It concludes that those safeguards have proved to be ineffective and that the power has violated human rights and damaged community relations.

Human Rights Watch's research indicates that the power is being used improperly-including to stop railway enthusiasts, photographers, and even children. As the Home Secretary told Parliament in June, the power was used prior to 2008 without proper authorization to stop hundreds and possibly thousands of members of the public.

Analysis of the stop and search statistics indicates that people of south Asian origin and blacks are more likely to be stopped than whites, suggesting that police may be engaging in ethnic profiling in deciding whom to stop. There is also anecdotal evidence that in some locations whites are being stopped to balance the statistics, masking the extent to which ethnic minorities are being targeted.  

The use of the section 44 power violates the UK's human rights obligations. In addition to the finding of the European Court of Human Rights in January 2010 that the use of section 44 violates the right to a private life, upheld by the Grand Chamber in June 2010, the higher rate of stops of ethnic minorities provides evidence that use of the power violates the principle of non-discrimination. There is also evidence that use of the power violates the right to liberty and to protest.

Since 2007, use of this stop and search power has ballooned. In England, Scotland, and Wales, the number of recorded stops rose almost seven-fold in just two years (from 37,000 in the year ending April 2007 to over 256,000 for the year ending April 2009). With Northern Ireland included, the total for the year ending April 2009 is 269,244.   

Numbers have since fallen, in part because of reforms introduced by some police forces.  But the fact remains that in the last 12 months for which complete data is available (January 2009 to December 2009), section 44 powers resulted in more than 148,000 people being stopped in England, Scotland, and Wales, without any suspicion they were engaged in terrorism or other criminal wrongdoing. With Northern Ireland included, the figure rises to 173,339.

Proponents of the power have failed to demonstrate that section 44 serves its stated purpose.  Senior police officers say that the power is intended to be preventive, making it harder for terrorists to operate and easier for police to disrupt their plots. But despite almost 450,000 section 44 stops and searches throughout the UK between April 2007 and April 2009, no one was successfully prosecuted for a terrorism offence as a result, and according to Britain's independent reviewer of terrorism legislation, little if any useful intelligence about terrorist plots was obtained.

The Metropolitan Police Service (MPS) and British Transport Police (BTP)-the two forces that carry out most stops and searches-have made genuine efforts to reform their use of section 44. In 2009, the MPS significantly narrowed the circumstances in which the power can be used and greatly reduced the geographic scope of the authorization, so that it now covers around a tenth of geographic London. The BTP also reduced the geographic scope of the power. Hampshire Police went even further: after almost 3,500 stops in 12 months failed to result in a single terrorism arrest, the force announced in April 2009 that it was suspending use of section 44.

The MPS and BTP deserve credit for taking these initiatives, as does Hampshire Police for halting its use of section 44 entirely. Human Rights Watch has given considerable weight to these reform efforts, and to the view of senior officers in the MPS and BTP that the power is necessary to combat terrorism (although we note that senior officers in other parts of the UK evidently take a different view in relation to their own forces). We have also given serious consideration to the possibility of restricting the power to major transport hubs in London.

However, we believe that even if the law were improved-if its geographic scope were permanently narrowed, its use restricted to specialist officers and authorizations limited to situations of necessity-the reforms would not entirely address the risk of arbitrary use, including profiling of ethnic minorities or stops of children. It is impossible to give clear guidance to officers on the use of a power that requires no reasonable suspicion. The risk of arbitrary use also makes the power incompatible with the traditional discretion given to UK police officers in course of their duties. The use of section 44 compromises the UK's human rights obligations and is counterproductive. In our assessment, section 44 cannot be reformed.

Recommendations

  • Repeal section 44 of the Terrorism Act 2000
  • Combat terrorism using stop and search powers that require reasonable suspicion, such as section 43 of the Terrorism Act 2000.
  • Amend section 43 of the Terrorism Act 2000 to include searches of vehicles, where and officer has a reasonable suspicion that the driver or passenger is involved in terrorism.
  • Amend Code A of the Police and Criminal Evidence Act 1984 to make it clear that there are no circumstances in which it is permissible to take into account a person's ethnic origin when determining whom to stop. Such an amendment would not prohibit the police from stopping a person where that person matched the physical description of an individual wanted by the police.

Extended Pre-Charge Detention

Human Rights Watch opposed the extension of pre-charge detention for terrorism suspects to 28 days under the Terrorism Act 2006. We also opposed proposals under the Counterterrorism Act 2008 to further extend pre-charge detention to 42 days. In our assessment, the current 28-day period violates human rights law. We believe that the maximum period of pre-charge detention in terrorism cases should be rolled back. The starting point should be a reduction to 14 days and serious consideration should be given to a 7 day maximum, as was the case from 2000 until January 2004. Moreover, we believe that the judicial review mechanisms for extended periods of pre-charge detention are inadequate.

There are several convincing arguments against the current 28 day period. The first is that detaining suspects for 28 days without charge (equivalent to a two-month prison sentence) violates the UK's obligations under the European Convention on Human Rights and the International Covenant on Civil and Political Rights (ICCPR). 

When reviewing the UK's compliance with the ICCPR in 2008, the UN Human Rights Committee said it was "disturbed" by the 28 day period. In its concluding observations, the Human Rights Committee recommended that "terrorist suspects be promptly informed of any charges and tried within a reasonable time or released."[3] That language is a clear indication that the Committee regards the current 28 day limit as incompatible with the UK's obligations under the ICCPR.

The second argument is that power is not necessary. At the time that the 28 day period was introduced and again in 2008, proponents of longer periods of pre-charge detention argued that the complexity of terrorism investigations meant that police might in the future need longer pre-charge detention powers in order to be able to process all the evidence and determine whether charges were appropriate.

According to Home Office statistics, in the year ending March 2009: "45% of those arrested under s41 of the Terrorism Act 2000 were held in pre-charge detention for under one day and 78% for under 7 days, after which they were charged, released or further alternative action was taken. During this period no individuals were held for longer than 14 days and since the extension of the pre-charge detention period in 2006; 11 suspects have been held for over 14 days and 6 for the full period of 28 days."[4]

According to the Home Office, of the 11 suspects detained for more than 14 days, seven were subsequently charged and four were released without charge.[5]  Three of the suspects were detained for the full 28 day period and then released without charge. Ten of the eleven suspects detained for more than 14 days were held in the year ending March 2007 and one of the suspects was held in the year ending March 2008.[6]

Given these statistics, Human Rights Watch believes that the 28-day period is unnecessary, particularly given that it is open to prosecutors to apply lower charging standards temporarily in a terrorism case (the threshold test), provided that they are satisfied that additional evidence will subsequently come to light to support the charge.

The third argument is that extended pre-charge detention is counterproductive. While we recognize that among the small number of those held for more than 14 days, the majority were charged, the use of extended pre-charge detention carries a significant risk of unjust extended detention, as there was in the case of three suspects detained in 2007/8.

A power that allows terrorism suspects-many if not most of whom would doubtless be British Muslims-to be detained for an extended period, and then released without charge, risks undermining the willingness of Muslim communities to cooperate with the police and security services.

Extended pre-charge detention also runs counter to the Prevent strand of the UK's Counterterrorism Strategy (CONTEST II). As Lord Paul Condon, former Metropolitan Police commissioner, warned in December 2005, the risks of extended pre-charge detention go beyond damaged cooperation and community relations:

If we now go back and make it look as though we are going to challenge yet again the point of 28 days that we have reached, I fear that it will play into the hands of the propagandists, who will encourage young men and women-to all other intents and purposes, they are good people-to be misguided, brainwashed and induced into acts of martyrdom.[7]

Human Rights Watch is also concerned that the current safeguards in place for extended pre-charge detention are inadequate to ensure that the rights of the suspect are protected. We shared the concern of the Joint Committee on Human Rights that in order to renew detention, a judge need only be satisfied that the investigation is being conducted with diligently and expeditiously.[8] 

We believe that in order to comply with the UK's obligations under human rights law, a higher standard should be applied-namely that the judge authorizing continued detention should be satisfied that reasonable grounds exist that the suspect may have committed a terrorism offence and that it is necessary to continue to detain them without charge.  The burden must be clearly on the police or prosecutors to justify why such exceptional detention is needed.

To ensure that extended pre-charge detention is not used as a means of holding persons who are not themselves suspected of an offence in furtherance of a terrorism investigation, where charges could be brought or where detention is otherwise not necessary, we believe that the Director of Public Prosecutions should authorize all applications by Crown Prosecutors for pre-charge detention beyond 7 days.

Recommendations

  • Reduce the maximum period of pre-charge detention. The starting point should be a reduction to 14 days and serious consideration should be given to a 7 day maximum.
  • Improve safeguards for pre-charge detention beyond the maximum 96-hour period allowed for other serious criminal offences, including by:
  • o Requiring a judge extending pre-charge detention beyond 7 days to be satisfied that reasonable grounds exist to believe the detainee may have committed a terrorism offence;
  • o Requiring the Director of Public Prosecutions to approve all applications by Crown Prosecutors for detention beyond seven days.
  • o Require that the person subject to detention has the opportunity effectively to contest the evidence on which the application for extended pre-charge detention is based and that the burden should be clearly on the police/CPS to justify the necessity of detention without charge in each case.

Control Orders

Human Rights Watch has repeatedly expressed concern about the UK's system of "control orders" that restrict the day-to-day activities of terrorism suspects, because of the system's inadequate procedural safeguards and the reliance on secret evidence as a basis for issuing such orders. Despite improvements to the system as a result of rulings by the UK courts and European Court of Human Rights, we remain of the view that the use of such orders violates the UK's obligations under human rights law.

That view is clearly shared by the Joint Committee on Human Rights. In its most recent annual review of the control order regime, the committee concluded that the continued operation of the system has led to:

more unfairness in practice, more unjustifiable interferences with people's liberty, more harm to people's mental health and to the lives of their families, even longer periods under indefinite restrictions for some individuals, more resentment in the communities affected by or in fear of control orders, more protracted litigation to which there is no end in sight, more claims for compensation, ever-mounting costs to the public purse, and untold damage to the UK's international reputation as a nation which prizes the value of fairness...[9]

As a result, the Committee stated: "we have reached the clear view that the system of control orders is no longer sustainable."[10]

The Prevention of Terrorism Act 2005 gives the Secretary of State the authority to impose two kinds of control orders. We recognize that the UK government has not sought to derogate from article 5 of the European Convention of Human Rights (ECHR), since the previous derogation order was quashed by the Law Lords in the "Belmarsh" case, as would be required in order to impose "derogating control orders."  But we remain of the view that such orders would violate core human rights obligations even if such a derogation were sought.

The "non-derogating orders" are intended to impose restrictions that fall short of deprivation of liberty and hence do not require the UK to declare a state of emergency and derogate from article 5 of.  Even if the restrictions these orders impose are not treated as deprivation of liberty, which is at least debatable given the severe restrictions that have been imposed, these orders nonetheless seriously restrict the enjoyment of other fundamental ECHR rights, including freedom of movement, freedom of association, freedom of expression, and the right to privacy and family life. 

We recognize that the scope of such orders has been narrowed following the ruling by the European Court of Human Rights and the Law Lords.[11] In practice, it is not now possible for control orders to be based largely or solely on secret evidence, and there are limits imposed on the numbers of hours per day to which controlees can be subject to curfew and other restrictions. Some orders have struck down by the courts, or withdrawn by the government.[12]

But we remain concerned that the Secretary of State can impose such restrictions for an indefinite period of time on the basis of a low standard of proof.  The "reasonable suspicion" standard used for imposing non-derogating control orders fall well short of the criminal standard of "beyond a reasonable doubt."  And despite the limits on the duration of curfews imposed by the UK courts, some controlees remain subject to requirements that when taken together amount to serious restrictions on their human rights. 

It is our view that the serious restrictions on an individual's human rights that can be imposed through control orders make them functionally equivalent to the imposition of punishment upon the determination of a criminal charge. This view is reinforced by the fact that breach of a control order is a criminal offence punishable upon conviction by up to five years imprisonment and/or a fine.

We note the recommendation of the UN Human Rights Committee in its 2008 concluding observation that:

The State party should review the control order regime established under the Prevention of Terrorism Act 2005 in order to ensure that it is in conformity with the provisions of the Covenant. In particular, it should ensure that the judicial procedure whereby the imposition of a control order can be challenged complies with the principle of equality of arms, which requires access by the concerned person and the legal counsel of his own choice to the evidence on which the control order is made. The State party should also ensure that those subjected to control orders are promptly charged with a criminal offence.[13]

While we note that legal challenges have helped to mitigate the control order regime, we remain concerned that the judicial safeguards in relation to the review of individual control orders are inadequate. The scope for judicial review does not allow for a full adversarial proceeding in which the evidence upon which the order was based may be properly contested. And the standard of proof remains far short of that required for criminal conviction. 

Control orders were originally envisioned as a temporary measure, subject to annual renewal. Yet there have repeated renewals of the power, despite the incompatibility of the regime with the UK's human rights obligations and the right to a fair hearing under the common law. The power should be repealed, and the threat of terrorism addressed instead through the use of the criminal justice system.

Recommendations

  • Repeal the Control Order regime and rely instead on the criminal justice system to respond to the threat of terrorism.

Encouragement of Terrorism Offence

Human Rights Watch remains concerned about the criminal offence of "encouragement of terrorism" introduced by the Terrorism Act of 2006. The language of the offence is vague and overbroad, extending beyond the legitimate goal of barring direct incitement to terrorism.  Moreover, in the debates leading to the Act's adoption, the government failed to convincingly demonstrate that this measure is necessary, given the array of offences already at the disposal of crown prosecutors.

Human Rights Watch notes that according to Home Office data, only seven persons have been charged with the offence since the legislation was enacted.[14] Of the seven charged, only two have been convicted. [15] This suggests that the offence is not necessary to combat terrorism.

Prosecutions based on long-standing criminal offences in 2006, after the law was enacted, demonstrate that the ordinary criminal law is capable of sanctioning speech that is said to incite violence. In separate trials, two men were convicted of inciting racial hatred and two other to soliciting murder (one of them was also found guilty of inciting racial hatred) for statements made during February 2006 protest outside the Danish Embassy in London against the "Danish cartoons."[16]  

The definition of the encouragement of terrorism offence is overly broad, raising serious concerns about undue infringement on free speech. The offence covers statements "likely to be understood...as a direct or indirect encouragement or other inducement to...the commission, preparation or instigation of acts of terrorism," including any statement that "glorifies the commission or preparation (whether in the past, the future or generally) of such acts."[17]

The right to freedom of expression is a fundamental right understood to ensure the freedom to hold opinions and to receive and impart information without interference. While recognizing that this right may be limited under certain circumstances, the European Court of Human Rights has repeatedly asserted that freedom of expression "constitutes one of the essential foundations of a democratic society."[18]

According to the case law of the European Court of Human Rights, governments must convincingly demonstrate that a measure that interferes with free speech is both necessary and proportionate. In the assessment of Human Rights Watch, the breadth of the speech covered by the offence and the imprecision with which it is drafted, fail the test for legitimate interference with the fundamental right to free expression as applied by the European Court of Human Rights.

The vague definition of the offence of encouragement of terrorism violates the principle of legal certainty enshrined in article 7 of the ECHR requiring that laws must be of such precision that people are able to regulate their conduct to avoid infringement. The fact that a speaker may commit the offence not only when he or she intends the speech to encourage terrorism but also when he or she is "reckless" as to the impact of the speech underscores the lack of legal certainty.

A final concern is that the Terrorism Act 2006 requires no causal link between the offending speech and actual encouragement - it suffices that members of the public, anywhere in the world, are likely to understand the speech as encouragement or glorification of terrorism.

There is little or no evidence that criminalizing such speech will deter terrorism, while there are real concerns that doing so deters free expression through a chilling effect that provokes self-censorship and inhibits political discourse, including criticism of the government.

Recommendation

  • Repeal the offence of encouragement to terrorism and rely on ordinary common law powers to combat incitement to violence.
     

Diplomatic Assurances against Torture

Human Rights Watch has long opposed reliance by the UK authorities on diplomatic assurances in seeking to deport terrorism and national security suspects to countries in which they face a real risk of torture and other ill-treatment ("deportation with assurances.")

Human Rights Watch expressed strong opposition to the recent agreement on diplomatic assurances reached with Ethiopia.[19] We also opposed the earlier negotiations that led to agreements with Jordan, Libya and Lebanon.[20] Finally, we oppose informal assurances, such as those employed with Pakistan and Algeria.

We recognize that the UK government has argued that the nature of (some of) its assurances are qualitatively different from those obtained by other governments, because they are contained in memoranda of understanding and contain post-return monitoring mechanisms. We also recognize that the new coalition government has committed itself to expanding the policy by seeking to secure similar memoranda of understanding with other governments.

In that context, it is important to explain the basis of our continued opposition to such a policy. In countries where torture and ill-treatment is a serious problem, mere diplomatic promises are insufficient to prevent such abuse. No matter how detailed such agreements are, they cannot eliminate the very real risk faced by people returned to countries that practice such clandestine, brutal abuse.

Because diplomatic assurances are unenforceable promises, a country that breaches them is unlikely to experience any serious consequences if the assurances are violated. Moreover, it is practically impossible to ascertain whether a breach has occurred. All countries deny that they use torture, including those where torture is conducted often and repeatedly. Because torture is carried out in secret, and victims often do not complain for fear of reprisals against them or their families, the practice is hard to investigate, and easy to deny. Notably, neither the sending state nor the receiving state has any incentive to carry out such investigations seriously. To do so might not only reveal human rights violations, but might also complicate efforts to rely on assurances in the future.

The UK authorities have argued that monitoring greatly reduces the chances that a returned suspect will be abused. In reality, such post-return monitoring will not protect returnees from torture.

Its key deficiency is the lack of confidentiality. If monitors have universal access to all detainees in a facility, and are able to speak with all detainees, each in private, a single detainee can report torture or other abuse without fear that he will be identified by the authorities. The ICRC makes universal access a condition of its monitoring for precisely that reason.

Such confidentiality cannot be provided when only one detainee or small group is being monitored. The prison or detention facility authorities would know directly where the allegations of ill-treatment came from. Experience has shown that detainees are reluctant to report abuse in those circumstances for fear of reprisals for them or their families.

The case of Maher Arar is instructive. A Canadian-Syrian dual national Arar was detained by US agents in transit through the United States and rendered to Jordan and eventually to Syria, where he was illegally detained and repeatedly tortured. Arar was visited by Canadian diplomats while in Syrian custody. But as he told the US Congress in October 2007:

Over the next 10 months, the only time I left my cell was to be interrogated or for meetings with the Canadian consul. I was allowed to meet with the consul seven times, but only in the controlled presence of Syrian officials. I was warned prior to those meetings not to say how I was being treated. During the last visit, however, I burst out telling about the beatings and the horrible conditions I had been living in. After 374 days of torture and wrongful detention, I was finally released to Canadian Embassy officials on October 5, 2003. [21]

The European Court of Human Rights has stood firm against diplomatic assurances as sought by the UK and other governments: in a string of 2008 rulings concluding that diplomatic assurances are unreliable, including the Grand Chamber decision in Saadi v. Italy, the Court has rejected on the facts assurances against torture as a safeguard against such abuse.[22] It has also ruled in key cases that the use of diplomatic assurances for returns to countries such as Tunisia, Uzbekistan, and Turkmenistan would signal a regression in rights protection. We believe that the court will similarly reject the reliability of assurances from Jordan in the Othman case, notwithstanding the decision by the Law Lords upholding his removal.

We note that the UK government sought not to appeal the ruling by the Court of Appeal in AS & DD upholding a lower court decision that the two Libyan nationals in that case could not be removed because of the risk of torture on return, notwithstanding the memorandum of understanding between Libya and the United Kingdom. In our view, this indicates an acknowledgment by the government that assurances from Libya cannot suffice to ameliorate the risk of torture faced by national security suspects the UK wishes to return there.

We further note the decision by the current UK government not to appeal the ruling of the SIAC in the Naseer and others case that two Pakistani terrorism suspects could not be removed to Pakistan because of the risk of torture on return, notwithstanding confidential assurances of humane treatment from the government of Pakistan.[23] In our view, this case underscores the ineffectiveness of assurances as a safeguard against torture.

It is also worth recalling the criticism expressed by the Joint Committee on Human Rights in a May 2006 report following its detailed examination of the policy of deportation with assurances.  The JCHR heard evidence from a number of actors regarding the policy, pending court challenges, and the impact of UK action on other countries using or contemplating using assurances.  The committee concluded that "[t]he evidence we have heard in this inquiry, and our scrutiny of the Memoranda of Understanding ... have left us with grave concerns that the Government's policy of reliance on diplomatic assurances could place deported individuals at real risk of torture or inhuman and degrading treatment, without any reliable means of redress."[24]

The JCHR added that that UK policy "could well undermine well-established international obligations not to deport anybody if there is a serious risk of torture or ill-treatment in the receiving country. We further consider that, if relied on in practice, diplomatic assurances such as those to be agreed under the Memoranda of Understanding with Jordan, Libya and Lebanon present a substantial risk of individuals actually being tortured, leaving the UK in breach of its obligations under Article 3 UNCAT, as well as Article 3 ECHR."[25]

When the UN Human Rights Committee reviewed the UK government's compliance with the ICCPR in 2008, its concluding observations pointed out that:

the more systematic the practice of torture or cruel , inhuman or degrading treatment, the less likely it will be that a real risk of such treatment can be avoided by diplomatic assurances, however stringent any agreed follow-up procedure may be.[26]  

Yet it is precisely in those circumstances, that assurances are most likely to be sought and relied upon.

There are broader reasons to be concerned about the UK's "deportation with assurances" policy.  Preventing radicalization and recruitment is a core element of the UK's counterterrorism strategy (CONTEST II).  Whatever the alleged national security benefits of deporting national security suspects, engaging in a policy widely seen as violating human rights and the prohibition of torture, undermines the UK's moral legitimacy at home and abroad, and runs counter to that strategy. This damages the ability of the UK to win the battle of ideas that is central to long-term success in combating terrorism.

Britain promotes itself as a leader in the global effort to eradicate torture, through actions such as its early ratification of the Optional Protocol to the United Nations Convention against Torture and its advocacy that other governments do the same. But the previous government's efforts at the Council of the European Union in Brussels to see "deportation with assurances" accepted as common European policy and its intervention in the Saadi case signaled a more ambivalent attitude toward torture that undermined the UK's other efforts to eradicate torture.

The new government has taken positive steps to break with the ambivalent approach of the previous government on torture, including by announcing an inquiry into allegations of complicity in torture. It should embrace the same logic in relation to deportation with assurances, by abandoning the policy, and instead looking to prosecute at home, and work with countries on system-wide efforts to eradicate torture. In addition to helping states comply with their human rights obligations, such an effort would also create conditions that would allow national security suspects to be removed without putting them at risk of torture on return.

Recommendations

  • Abandon the policy of deportation with assurances.
  • Halt negotiations with governments on new memoranda of understanding.
  • Halt pending deportations and extraditions in cases where there is a risk of torture or inhuman or degrading treatment.
  • Where there is sufficient evidence of criminal wrongdoing, prosecute suspects in the United Kingdom.
  • Work with countries with poor records on torture on system-wide anti-torture reform efforts with the long-term goal of eliminating the risk of torture and ill-treatment.


 


[1] European Court of Human Rights, Gillan and Quinton v. the United Kingdom, Judgment of January 12, 2010. On June 28, 2010, a panel of the Grand Chamber rejected the UK government's request to have the case referred to the full Grand Chamber, thereby making the January 12 ruling final.

[2] Human Rights Watch, "Without Suspicion: Stop and Search under the Terrorism Act 2000," July 4, 2010, https://www.hrw.org/en/reports/2010/07/05/without-suspicion

[3] United Nations Human Rights Committee, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, June 30, 2008, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/433/42/PDF/G0843342.pdf?O... (accessed August 9, 2010).

[4]Home Office, "Operation of police powers under the Terrorism Act 2000 and subsequent legislation: Arrests, outcomes and stops & searches, 2008/09, November 2009,  http://rds.homeoffice.gov.uk/rds/pdfs09/hosb1809.pdf (accessed August 9, 2010).

[5] Home Office, "Operation of police powers," November 2009, table 1.7.

[6]Ibid.

[7] Lord Condon, House of Lords debate on December 13, 2005, quoted in Andrew Blick, Tufyal Choudhury, and Stuart Weir, "The Rules of the Game: Terrorism, Community and Human Rights", Essex University Human Rights Centre for the Joseph Rowntree Reform Trust, http://www.jrrt.org.uk/index.php?page=publication&showpublication=8 (accessed August 13, 2010).

[8]Joint Committee on Human Rights, "Sixteenth Report Counter-Terrorism Policy and Human Rights: Bringing Human Rights Back In," March 25, 2010 http://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/86/8... (accessed August 9, 2010).

[9] Joint Committee on Human Rights, "Annual Renewal of Control Orders Legislation 2010," February 23, 2010, http://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/64/6... (accessed August 10, 2010).

[10] Ibid.

[11] European Court of Human Rights, A and others v. United Kingdom, February 19, 2009; House of Lords Judicial Committee, AF and another v. SSHD, [2009] UKHL 28, June 10, 2009.

[12]Supreme Court, Secretary of State for the Home Department v AP [2010] UKSC 24, June 16, 2010; Court of Appeal, AN v Secretary of State for the Home Department [2010] EWCA Civ 869,  July 28, 2010;

[13] United Nations Human Rights Committee, "Concluding Observations: United Kingdom of Great Britain and Northern Ireland," June 30, 2008.

[14] Home Office, "Operation of police powers," November 2009, Table 1.3(a)

[15] Home Office, "Operation of police powers," November 2009, Table 1.10

[16]Mizanur Rahmnan and Abdul Saleem were found guilty of inciting racial hatred on November 9, 2006, and February 1, 2007, respectively (Rahman was acquitted of charges of soliciting murder); Umran Javed was convicted of inciting racial hatred and soliciting murder on January 5, 2007; and Abdul Muhid was found guilty of two counts of soliciting murder on March 7, 2007.

[17] Terrorism Act 2006, article 1 (1) and (3).

[18]European Court of Human Rights, Handyside v. the United Kingdom, Judgment of 7 December 1976, paragraph 49.

[19] Human Rights Watch, "Letter to British Foreign Secretary Miliband on Diplomatic Assurances with Ethiopia," September 17, 2009, https://www.hrw.org/en/news/2009/09/17/letter-british-foreign-secretary-e... (accessed August 10, 2010).

[20] Human Rights Watch, "Not the Way Forward - The UK's Dangerous Reliance on Diplomatic Assurances," October 22, 2008, https://www.hrw.org/en/reports/2008/10/22/not-way-forward-0 (accessed August 10, 2010).

[21] U.S. House of Representatives, "Rendition to Torture: the Case of Maher Arar," October 18, 2007, http://www.internationalrelations.house.gov/110/38331.pdf (accessed August 10, 2010).

[22] European Court of Human Rights, Grand Chamber, Saadi v. Italy, Judgment of February 28, 2008.

[23] Special Immigration Appeals Commission, Naseer and others v. SSHD, May 18, 2010, http://www.siac.tribunals.gov.uk/Documents/outcomes/1_OpenJudgment.pdf (accessed August 10, 2010).

[24] Joint Committee on Human Rights, "Nineteenth Report, Session 2005-06," May 18, 2006,

http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/185/...(accessed August 10, 2010), para. 129.

[25] Ibid., para. 131.

[26]United Nations Human Rights Committee, "Concluding Observations: United Kingdom of Great Britain and Northern Ireland," June 30, 2008.

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