Equality and Human Rights Commission submission to
Review of Counter Terrorism and Security Powers
Who we are and what we do
The Equality and Human Rights Commission (the Commission), established on the 1st October 2007 is working to eliminate discrimination, reduce inequality, protect human rights and to build good relations, ensuring that everyone has a fair chance to participate in society.
Our approach to equality, opportunity and human rights builds on the achievements of our predecessors, the Equal Opportunities Commission (EOC), the Commission for Racial Equality (CRE) and the Disability Rights Commission (DRC). We are here for the 60 million people of Britain and Parliament has set us the task of:
Protecting and promoting equality
Protecting and promoting human rights
Ensuring good relations
The Commission welcomes the opportunity to provide briefing on the review of counter terrorism and security powers. As a statutory body, the Commission has duties to promote equality, build good relations and protect human rights, and encourage compliance with the Human Rights Act 1998 and other human rights obligations under international treaties1.
The Commission regrets that due to the short consultation period , which has occurred over the August holiday period, the Commission has not had the opportunity to fully discuss and agree this response to the consultation. The positions in this response are based on positions previously stated by the Commission and, as a modern regulator under its statutory duties to protect and promote equality, good relations and human rights, the Commissions analysis of the human rights and equality impact of current counter terrorism laws and policies.
The Commission welcomes the Governments review of counter terrorism and security powers. The Commission recognises the duty on governments to protect public safety and accepts that circumstances might arise where specific measures are required to address the threat to public safety.
The Commission welcomes the aim of the review to ensure that the powers covered by the review are necessary, effective and proportionate and meet the UKs international and domestic human rights obligations.
This is an important opportunity to ensure that counter terrorism powers are compatible with the UKs human rights obligations, and promote equality and good relations. In particular the Commission welcomes the terms of reference of the review in addressing these issues “consistent with protecting the public and where possible to provide a correction in the favour of liberty”.
The Commission considers that the issues raised by the consultation, and the use of counter terrorism powers and legislation more generally requires a longer and more thorough review process than possible during this short and limited review. The Commission recommends there should be a fuller review of counter terrorism powers and legislation, to assess their compliance with equality and human rights standards and legislation, and their impact on good relations. Such a review could consider whether there is a need for consolidation of the current laws within a single counter terrorism statute.
There have been widespread concerns voiced, including by the Joint Committee on Human Rights and the United Nations Human Rights Committee and legal challenges to the control order regime. While the Commission recognises the security needs to monitor certain individuals the Commission questions whether the control order regime should continue. The Commission recommends serious consideration is given by the review to alternatives, including the use of intercept evidence to enable prosecutions, and the use of surveillance.
The Commission welcomes the announcement by the Home Secretary, following the finding of the European Court of Human Rights in Gillan that the current stop and search regime breached Article 8 of the European Convention on Human Rights, that guidance would be issued to police removing the provisions for stop and search of an individual under s.44, and requiring s.44 stops of vehicles to be subject to reasonable suspicion. However the Commission recognises that exceptional circumstances may occur that require enhanced powers. Any departure from the principle that stop and search be based on reasonable suspicion must be based on the need to address an immediate terrorist threat to a particular event or location and should be narrowly proscribed, in terms of duration, geographical extent, and based on specific information to that threat, location and timing. It must be strictly necessary to meet the threat identified, and should only be used in exceptional circumstances.
The Commission is also concerned regarding stop and search powers without suspicion at ports and airports under Schedule 7 of the Terrorism Act 2000. The Commission would recommend the review considers whether these powers continue to be proportionate and necessary.
The Commission welcomes the statement given by the Home Secretary in the government’s recent renewal of the 28 day pre trail detention provision, in particular her indication that she felt a period of 14 days pre trial detention would be more appropriate. The Commission would support a reduction to 14 days, and would recommend that this should remain subject to annual renewal by Parliament, and assessment by the CPS as to whether it continues to be necessary in light of the nature of the terrorist threat.
The prohibition against torture and inhuman or degrading treatment is absolute. Given the real and practical problems the UK has had in establishing MOUs with a small number of States, the Commission is concerned regarding the possibility of attempts to expand the scheme. The Commission reiterates the requirement that any MOU must reduce the risks of torture to such a level that will not infringe Article 3.
The Commission welcomes the current proposals for reform of the use of RIPA by local authorities. In particular the Commission considers that restricting the use of RIPA powers to serious offences is more likely to render such use proportionate. Similarly requiring prior judicial authorisation by a magistrate, will provide greater independence and oversight, and improve article 8(2) compliance. However the Commission considers there is a need for wider reform of RIPA, and privacy protections in general. The Commission is due to publish research in the Autumn assessing the current protection of information privacy rights, and consideration of measures for improvement of these protections. The Commission recommends consideration of the need for further reforms in his area.
The Commission has a duty to work towards the elimination of prejudice against, hatred of and hostility towards members of groups protected by the equality legislation. The Commission is concerned about the piecemeal manner in which the law on incitement to hatred is developing with differing tests. The Commission believes the government should undertake a review of the incitement to hatred laws to ensure that it adequately and proportionately achieves the aim of limiting all forms of hate speech, in accordance with protection of the right to freedom of expression and assembly.
The Commission welcomes the Governments review of counter terrorism and security powers.2 The Commission recognises the duty on governments to protect public safety and accepts that circumstances might arise where specific measures are required to address the threat to public safety.
The Commission considers this is an important opportunity to ensure that counter terrorism powers are compatible with the UKs human rights obligations, and promote equality and good relations. In particular the Commission welcomes the terms of reference of the review in addressing these issues “consistent with protecting the public and where possible to provide a correction in the favour of liberty.”
However the Commission considers that the issues raised by the consultation, and the use of counter terrorism powers and legislation more generally requires a longer and more thorough review process than possible during this short and limited review. Parallel to this review the review of the use of intercept evidence, and the review in respect of seizure of assets legislation is taking place. The use of torture is currently the subject of an Inquiry. The future of the Prevent programme is currently under review, and likely to be scaled back. Other issues of significant concern, including accountability and redress mechanisms for use of counter terrorism powers, are not covered by this, or explicitly currently any other form of reviews (save the torture review above). All these matters are clearly linked.
Since the terrorist attacks of 9/11 there has been an unprecedented scale of increase in counter terrorism legalisation and powers.3 There are now more and wider counter terrorism powers and legislation in the UK than almost any other country.4 It is now over 14 years since Lord Lloyd in his report identified the principles that should apply to any future counter terrorism legislation. 5
One aspect of the current review- that of the use of RIPA powers by local authorities encompasses issues beyond counter terrorism, and relates to wider issues of protection of the right of privacy. Similarly issues in respect of organisations that promote hatred or violence go beyond counter terrorism issues.
It would appear that there are cogent reasons for consideration of a fuller review of counter terrorism powers and legislation, to assess their compliance with equality and human rights standards and legislation, and their impact on good relations. Such a review could consider whether there is a need for consolidation of the current laws within a single counter terrorism statute.
Compliance with human rights.
The Commission welcomes the aim of the review to ensure that the powers covered by the review are necessary, effective and proportionate and meet the UKs international and domestic human rights obligations. In preparing this response and evaluating current counter terrorism laws and policies the Commission has drawn on its role as a modern regulator as a safeguard of equality and human rights, and the following principles derived from international law, standards and principles.
Duty to protect.
The government is under an obligation to take measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts, especially the right to life.6
Human rights compliance.
Measures must comply with the Human Rights Act, and international treaty obligations. Any measure that restricts human rights (including the normal operation of criminal law processes and guarantees) must be defined as precisely as possible, and be necessary and proportionate with the aim pursued, and contain appropriate safeguards.7
Presumption of criminal law.
Terrorism is a criminal act. As such terrorist and associated acts should be dealt with, wherever possible, through the usual criminal law processes, with the associated standards and guarantees, rather than specific terrorist offences and processes.8
Measures should be subject to rigorous scrutiny, transparency and accountability. This should include sunset clauses for specific measures, inquiry and investigation for allegations of human rights violations and independent oversight of intelligence and operation of counter terrorism laws and policies.9
Measures must be non discriminatory, and take account of impact on minority communities, women and children. Measures should consider their impact on good relations.10
The Commissions research
The Commission is in the process of undertaking research into the impact of counter terrorism measures on the Muslim communities11. The final research is due to be published in the winter. The Commission has drawn on the following interim findings12 of the research to inform this response.
The impact of counter terrorism law and policies are experienced and felt more acutely and directly amongst Muslims than non-Muslims. Non-Muslims were less likely to have direct or indirect experiences of any measures and were generally more supportive of the measures that were being taken as necessary.
Amongst Muslims concern focused on those measures that it was felt targeted or were applied to Muslims as a group or community, (stop and search, stops at ports and airports, preventing violent extremism, surveillance) compared to measures seen as targeted at individual suspects, (arrest, raids, pre-charge detention or control orders).
There appeared to be particular concern around the use of stop and search powers, both under the Terrorism Acts and more general use of stop and search. Most Muslims in the discussion groups either had direct experience of being stopped and searched, had close friends and family that had been, or had witnessed the police carrying out stops in their local area. Concerns focused both on the extent of stops (that is the number of stops being carried out) as well as the actual experiences of people when they are stopped. There were also significant concerns regarding the experience of being stopped at ports and airports. Interviews suggest the experience of being stopped at an airport is often more stressful than a stop in the street.
Amongst Muslims who were ordinary local residents, with the exception of stop and search, concerns did not focus on particular measures but expressed as a general sense of insecurity, being treated as part of a suspect community and increased hostility towards Muslims
The need for more information and accountability around counter terrorism policing and policies was a recurring theme in interviews.
A further concern, amongst interviewees was the use and sharing of data collected in relation to counter terrorism. There was concern regarding the use of surveillance, and information being collected on individuals, including at Mosques, universities, and in the course of stops and questioning at ports and airports.
Control orders were introduced through emergency legislation under the Prevention of Terrorism Act 2005, in the words of the then Home Secretary
“For those dangerous individuals whom we cannot prosecute or deport, but whom we cannot allow going on their way unchecked because of the seriousness of the risk that they pose to everybody else in the country.”
They enable the Home Secretary to make an order against any individual in the UK suspected of being involved in terrorist related activity. The orders may contain a wide range of conditions including curfew, residence, travel restrictions and restrictions on who a person may associate with.
The orders have been subject to widespread criticisms and successful legal challenges.
The restriction of liberty caused by control orders engages Article 5 of the Convention. The Courts have held that a curfew of up to 16 hours may be acceptable13. However more recently the court has held that in conjunction with Article 8 respect for private life, a 16 hour curfew, which added to the social isolation of the individual, and conditions requiring him to live away from his family and friends, could make a 16 hour curfew unlawful14
The process by which control orders are made has also raised concern.
Orders are made by the Home Secretary, but may be challenged in the High Court in a procedure of open and closed hearings similar to that of SIAC. The standard of proof for a control order is that the Home Secretary has reasonable grounds for suspicion that the individual is involved in a terrorist based activity. As such this is significantly lower than any criminal strand of proof. Breach of a control order is a criminal offence. The majority of evidence in relation to control orders is of its nature secret intelligence, and as such some or all of the proceedings may take place in secret, with the controlled person having little or no access to material against him and a special advocate appointed on behalf of the controlee. The special advocate is appointed by the court, and puts their client’s case to the court in a closed session; however they have limited communication with their client, and in particular cannot inform their client of the contents of any of the closed material.
The case of AF15 confirmed the jurisprudence of the European Court of Human Rights that the substantive fair trial procedural guarantees under Article 6 of the Convention required that the person subject to a control order must have sufficient information about the allegations against them to be able to effectively instruct their special advocate. Despite this judgement, the Joint Committee on Human Rights considered that the process “gives rise to a serious inequality of arms” and “creates the risk of serious miscarriages of justice”16 In particular the Joint Committee drew attention to continuing difficulties despite the ruling in AF, including late disclosure of closed material to the special advocate, limitations on the ability of the special advocate to communicate with the controlee, limitations on the special advocates access to independent and expert evidence and limitations on the special advocates ability to effectively test the governments objections to disclosure of closed material.
The United Nations Human Rights Committee has raised similar concerns, in particular that significant restrictions can be posed on an individuals liberty, who has not been charged with a criminal offence, and around the nature of the judicial process. The Committee recommended
“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.”17
The Joint Committee also raised concerns regarding the impact of control orders on controlees, their families and communities. They heard evidence as to the devastating impact of the orders. The UN Special Rapporteur has also drawn attention to the adverse affect of control orders on individuals, and in the direct and indirect impacts on the human rights of third parties, particularly female family members.18 The Commission is particularly concerned as to the impact of counter terrorism measures on particular communities and on good relations.
As at 9 March 2010 there were 11 control orders in force. A total of 46 individuals in total have been subject to a control order. There are approximately 2000 people that are being monitored. 19
In his fifth report on the operation of control orders Lord Carlile made various recommendations for amendments to the control order regime, but concluded that the regime remained necessary for a small number of cases. 20
However the Joint Committee on Human Rights has concluded that the current control order regime is no longer sustainable, and called for alternatives, including surveillance, to be put in place.
One common response to the issue of control orders has been to look at the issue of intercept evidence to be made available. Under usual criminal laws and processes an individual would be made aware of the evidence against them (“equality of arms” under Article 6). Many of the concerns around control orders might be met if intercept evidence were available, enabling either better disclosure of the case against a controlee to occur, or preferably the usual course of the criminal law to take place with prosecution of those who there is evidence have committed terrorist acts. If this were to occur, then it is likely there would be a reduced need for control orders. The Commission awaits the outcome of the inquiry into intercept evidence, and urges to the government to further consider this issue.
Another alternative commonly suggested to control orders is keeping individuals under enhanced surveillance. The Commission refers to the comments of the Joint Committee regarding the respective cost of surveillance to the control order regime. It may be keeping individuals under intense surveillance, would meet the security requirements currently met by control orders. Such surveillance, if lawfully executed, would not require formal court proceedings or control orders, providing of course it was necessary and proportionate within Article 8 terms. The Commission requests that the review reviews current and past control orders and security needs, and gives intense consideration as to whether these could be met by enhanced surveillance, without the need for the control order regime.
S 44 stop and search powers
The Commission welcomes the announcement by the Home Secretary, following the finding of the European Court of Human Rights in Gillan that the current stop and search regime breached Article 8 of the European Convention on Human Rights, that guidance would be issued to police removing the provisions for stop and search of an individual under s.44, and requiring s.44 stops of vehicles to be subject to reasonable suspicion.
Criticisms of the s.44 power to stop and search without reasonable suspicion are well documented. As a basic tenet of civil liberties, and human rights law, the power to stop and search an individual should be based on reasonable suspicion. Any departure from this principle must be based on the need to address an immediate terrorist threat to a particular event or location and should be narrowly proscribed, in terms of duration, geographical extent, and based on specific information to that threat, location and timing. It must be strictly necessary to meet the threat identified, and should only be used in exceptional circumstances. The finding of the ECHR in Gillan and Quinton vs the UK21 showed that the current s.44 powers were too widely drawn, and so breached Article 8 of the Convention.
The Commissions research into the effect of counter terrorism powers however reflects concerns beyond the operation only of s.44 to wider concerns as to how general stop and search powers are used, and their affects on the individual and communities concerned. The interim findings of the research appear to indicate that for most Muslims in the discussion groups the most common experience of policing and policy relating to counter terrorism when walking in streets of their neighbourhoods and their towns and cities related to being stopped and searched by the police. Most Muslims in the discussion groups either had direct experience of being stopped and searched, had close friends and family that had been or had witnessed the police carrying out stops in their local area.
In general individuals did not make a distinction between stops under s.44 relating to terrorism compared to stops under other police powers. Concerns focused both on the extent of stops (that is the number of stops being carried out) as well as the actual experiences of people when they are stopped. There were particular concerns for the discussion group in London. Key objections related to the negative feeling that arose from perceptions that individuals were being stopped because of their religion or race. This occurred particularly where individuals had been stopped several times in the course of the previous 12 months. The public visibility of stops in the street contributed to this negative feeling.
These concerns are further supported by the Commissions research into the disproportionate use of stop and search against ethnic minority communities. 22 The report found that a black person was at least six times more likely to be stopped and searched by the police in England and Wales as a white person, and an Asian around twice as likely to be stopped and searched as a white person. Certain forces, including London Met, West Midlands, Thames Valley, West Mercia and South Yorkshire, stopped significantly larger numbers of Black and Asians than White people. The report also found significant defences between and within forces. This differential use of stop and search between and within forces also appears to be borne out by the interim findings of our counter terrorism research.
The Commission is concerned regarding the disproportionate use of stop and search powers generally, and is considering enforcement action against particular forces under the Race Equality duty.
The Commission is also concerned regarding the use of stop and search powers at ports and airports under Schedule 7 of the Terrorism Act 2000. Under this act, stops , searches, questioning and detaining of a person for up to 9 hours can occur without reasonable suspicion. 10,400 people have been examined under this legislation since 2004. Of them 1,110 were subsequently detained with 43 subsequent convictions23, 24 . Stops for under 1 hour are not recorded, and ethnicity is only recorded at some locations. Concerns have been raised about their use25, although Lord Carlile recommended that while their use can be reduced, they worked well and remained necessary.26
The interim findings of the Commissions research on impact of counter terrorism powers looked at the experience of Muslims of being stopped and searched at ports and airports. The interviews suggest the experience of being stopped at an airport is often more stressful than a stop in the street. Some who have been stopped felt that the questions they were asked relating to their religious and political beliefs as well as the activities in communities was being used to build up profiles of them and to gather intelligence in general about the community. There was concern about the use of the information that was provided. Amongst community and civil society organisations there is concern also about the lack of knowledge and understanding of the rights individuals have when they are stopped at airports. Other concerns focus on the lack of adequate data on the numbers stopped and profile of those who were being stopped. The Commission, in its submission to the Department of Transport on the Interim Code of Practice for the use of body scanners at airports has previously raised its concerns regarding the use of such powers at airports, and their disproportionate impact on certain communities. 27
The UN Human Rights Committee also expressed its concern regarding the use of stop and search, and in particular the use of racial profiling in the exercise of stop and search powers and its adverse impact on race relations. The Committee recommended review of the use of stop and search powers to ensure they were exercised in a non-discriminatory manner28
The Commission is also concerned regarding government proposals to "lessen the burden" of stop and search recording. Recording of both stop and search, and stop and account, is key to ensuring proper use and accountability by the police of these powers. The Commission urges the government to ensure that any changes to stop and search and stop and account recording continues proper and full recording of this information.
The Commission further urges that training and other steps to ensure appropriate and proportionate use of stop and search is carried out.
Detention before charge.
The Commission welcomes the statement given by the Home Secretary in the government’s recent renewal of the 28 day pre trail detention provision, in particular her indication that she felt a period of 14 days pre trial detention would be more appropriate.
The Commission believes that long periods of pre-charge detention raise serious matters of principle and practice. As a matter of principle, extended periods of pre-charge detention are contrary to human rights and British constitutional history and values. Starting with the Magna Carta to the present laws, the individual has been granted and enjoys the following fundamental rights:
ii. Protection against unlawful imprisonment
iii. Presumption of innocence
iv. The right to be told promptly of the reasons for arrest and charge
v. Non-discrimination and equality
The Commission previously obtained counsels advice on the legality of proposals to increase the maximum period of detention to 42 days. Counsel advised that such proposal were likely to be unlawful in that they would breach Articles 5, 6, 14 and potentially 3 of the ECHR.29
While counsels advice was obtained in relation to the proposal for 42 days, the principles apply to any extended period of pre charge detention, in its engagement of Articles 5, 6, 14 and potentially 3:
Article 5(2) requirement that arrestees are informed promptly of the reasons for their arrest and the charges against them;
Article 5(3) requirement that detainees be brought promptly before a judge; and
Article 5(4) requirement that detainees are entitled speedily to have the lawfulness of their detention ascertained by a court.
Article 3 (which prohibits torture and inhuman or degrading treatment) because of the physical conditions in which detainees could be held for extended periods and the psychological impact such detention without charge is likely to have;
Article 14 (the anti-discrimination provisions); this is because of its impact on Muslim detainees and the absence of justification for extended pre trial detention which, in practice, denies Muslim detainees and potential detainees the full protection of Articles 3, 5 and 6 of the Convention.
Finally the Commission also considers that the use in criminal proceedings of evidence gathered during extended periods of pre-charge detention may well engage of Article 6 of the Convention (which safeguards the right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time and the presumption of innocence).
Cleary the lower the extended period of pre trail detention, the more likely it is that the measures will be necessary and proportionate, and the associated guarantees be sufficient to ensure compliance with the Convention. To an extent where to fix the period of pre trail detention is a matter of art that needs to balance the human rights of the individual with the needs of the state to be able to effectively investigate, based on evidence of suspicion an offence.
If terrorism matters were dealt with within the usual criminal process in usual circumstances there would be a maximum period of pre trail detention of 4 days. This is similar to elsewhere including in the US (2 days) Canada (1 day) and Germany, (2 days) while Spain allows detention of up to 5 days, and France 6 days. It would also be in accordance with the recommendations of Lord Lloyd in his 1996 inquiry into terrorist legislation.
The Commission notes the support given to the current 28 day regime (as opposed to 42) by, inter alia, the then DPP, and then Attorney General, as well as the Government independent reviewer of counter terrorism legislation. However the Commission also notes evidence given to the JCHR in 2007, by defence barrister Ali Nasseem Banja that the vast majority of questioning appears to occur within the early stages of an investigation, and in relation to charges under operation Vivace in respect of the July 2005 attacks charges where brought within the 14 day limit applicable at that time30. Similarly the evidence in respect of the two who were held for up to 28 days was according to barrister involved in the trial, available in the first 6 to 12 days of detention.
14 days pre-trial detention was the period established under the 2003 Counter Terrorism Act- to be superseded in 2006 by 28 days. The UN Human Rights Committee noted its concern at the increase from 14 to 28 days31. Both it, and the UN universal period review process have recommended strict time limits and strengthened guarantees for those in detention32, and that any terrorist suspect arrested should be promptly informed of any charge against him or her and tried within a reasonable time or released33.
It may be that, with the associated judicial guarantees, a period of 14 days would meet the requirements of Article 5, and such a period would be an improvement on the current 28 days. However, bearing in mind the draconian nature of such a power, the Commission would recommend that this should remain subject to annual renewal by Parliament, and assessment by the CPS as to whether it continues to be necessary in light of the nature of the terrorist threat.
Extension of the use of Deportations with Assurances.
The prohibition against torture and inhuman or degrading treatment is absolute, it is not subject to exception or derogation and the principle of non-refoulement applies whereby State Parties must not expose individuals to a danger of such treatment upon return to another country by way of extradition or expulsion.34 The prohibition against refoulement applies to all forms of removal, even on grounds of national security.35
In January 2005 the government announced that in order to deport suspected terrorists to countries which had some history of torture it would seek to enter into "memorandums of understanding" with their countries of origin.36 Memorandums have been concluded with Jordan, Lebanon and Libya, Algeria and Ethiopia. The Courts have accepted those with Algeria and Jordan37, but rejected those with Libya.
Internationally, the UN Committee Against Torture has condemned the use of diplomatic assurances. In a recent case of Agiza v Sweden38 and most recently the UK Court of Appeal has held that the Memorandum of Understanding with Libya did not reduce the risks of torture to levels, which would not infringe article 3 of the ECHR (equivalent of article 7 of the ICCPR).39
In the cases of OO and RB (Jordan and Algeria respectively) the House of Lords highlighted the problems with reliance of assurances stating
“ assurances should be treated with scepticism if they are given by a country where inhuman treatment by state agents is endemic”. 40 The Lords confirmed that the DWA procedure , and in particular the use of closed evidence and SIAC procedures was compatible in principle with Convention rights. The question of whether assurances could be relied on was a matter of fact, that can be properly decided by the closed SIAC procedure. The Court confirmed the finding in Saadi that the weight to be given to assurances depends on in each case on the circumstances at the material time. The case in respect of OO is currently before the European Court of Human Rights.
The Human Rights Committee expressed its concern regarding the use of diplomatic assurances, and noted that assurances do not always in practice ensure that the affected individuals will not be subject to ill prohibited treatment. The Committee recommended that “the State party should 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 State party should further recognise 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. The State party should exercise the utmost care in the use of such assurances and adopt clear and transparent procedures allowing review by adequate judicial mechanisms before individuals are deported, as well as effective means to monitor the fate of the affected individuals.”41
Given the real and practical problems the UK has had in establishing MOUs with a small number of States, the Commission is concerned regarding the possibility of attempts to expand the scheme. The Commission is particularly concerned regarding the adequacy of the human rights record, and commitments of States where MOUs are likely to be sought; the ability and adequacy of any monitoring regime subsequent to an individual’s return, and the ability of the UK to ensure that States, and those within a State that are responsible for holding an individual in detention abide by the terms of the MOU. By way of example the Commission refers to the evidence given in the recent case reviewing transfer of detainees to the NDS in Afghanistan under an MOU. 42 The Commission reiterates the requirement that any MOU must reduce the risks of torture to such a level that will not infringe Article 3- the Courts undoubtedly will subject any future MOUs to scrutiny to ensure this.
Use of RIPA by Local Authorities, and access to communications data generally.
The Commission has previously expressed its concern over this issue in its response to the Home Office consultation on the Regulation of Investigatory Powers Act 2000 (RIPA) and its associated Codes of Practice. In that response the Commission noted :
the ‘basis for lawful surveillance activity’ should emphasise that the necessity for each and every use of a RIPA surveillance power must be clearly and unambiguously established, and its scope strictly confined to the requirements of the investigatory aim it pursues. It would be helpful to set out clearly here the requirements that must be satisfied before any interference with the right to privacy can be justified. That is, firstly it must be in accordance with the law, secondly it must pursue an identified legitimate aim,43 and thirdly it must be necessary and proportionate.
The Commission notes the Chief Surveillance Commissioner has previously stated that there has been a “serious misunderstanding of the concept of proportionality”.
The Commission notes the comments of Baroness Neville Jones44 that RIPA powers for local authorities should be restricted to serious offences. Such restriction is more likely to render the use of RIPA powers proportionate within Article 8(2).
The greater the independence of the bodies or officials that authorise and review the use of covert methods, the greater the likelihood that the regulatory regime will satisfy the requirements of Article 8(2). Judicial control affords the best guarantee of independence, impartiality and a proper procedure, and the Commission would welcome proposals to place authorisation by magistrates.
However, while the Commission welcomes the current proposals, the Commission considers that there is a need for a comprehensive review of RIPA, and privacy protections generally.
Whether RIPA is ‘fit for purpose’ or adequately achieves its human rights objectives has been continuously questioned since it first appeared on the statute books.45
The Commission understands that the major concerns expressed about the operation of the RIPA regime over the last few years are:
The large number and wide range of public authorities listed as able to grant authorisation of surveillance under RIPA, and the lack of scrutiny or accountability in the manner in which bodies can be added
The wide spectrum of law enforcement functions for which authorisation can be granted – from relatively trivial to extremely serious offences
The lack of independent judicial oversight of the authorisation process for even the most invasive surveillance46
The lack of sufficient guidance for decision-makers in many public bodies on how to determine the key issues of necessity and proportionality47
The lack of detailed information about the basis for seeking authorisations and the outcomes of obtaining them
The lack of an accessible, effective and accountable complaints mechanism.
The Commission proposes that a more comprehensive review of this legislation is warranted. A key objective of such a review would be to simplify the legislation, which is a complex and unwieldy legislative regime and has been described as ‘puzzling’ and ‘perplexing’.48 The legislation has been criticised by a wide spectrum of individuals and organisations for this, as well as for its questionable compliance with the ECHR. Legislation such as this which sanctions interferences with important human rights for necessary public interest purposes should be as accessible and transparent as possible.
The Commission has commissioned research into the protect of privacy in the UK. The research will be published this Autumn. The research will identify areas, including RIPA, but also more widely, where privacy protection could be further enhanced, and recommend consideration of further wider reforms in this area.
The Commission notes in this context that research on perceptions of human rights conducted by Ipsos Mori for the Inquiry found that 63% of respondents were concerned about “respect for private and family life” and 43% of respondents listed it in their top five of Convention rights.49
The Commission also notes the concerns of the UN Special Rapporteur on the promotion and protection of human rights on issues of privacy and counter terrorism.50 The Special Rapporteur in his report to the United Nations Human Rights Council highlighted the erosions of the right to privacy in the fight against terrorism and made recommendations to governments in order to improve the right to privacy in the fight against terrorism. Many of the issues he raised are reflected in this consultation response, including the use of stop and search, CCTV, data collection, and body scanners.
The Commission has previously raised with government its concerns regarding adequate protection of privacy rights in relation to the use of body scanners, and concerns regarding the potential for disproportionate impact on certain communities.
The Commission research on the impact of counter terrorism measures also touches on privacy and surveillance issues. In one of the local case study areas there was significant concern about the use of surveillance cameras. This was an area where a large number of police surveillance cameras had been put up in the previous few months in the areas of the city with significant Muslim populations. There was anger that the cameras were a measure that targets the Muslim community as whole rather than individuals. It therefore reinforces a sense of being treated as ‘suspect community’ and intensifies negative perceptions of the Muslim community with other communities in the city.
Concerns around the collection, dissemination and storage of data were also raised by the Commission research. In relation to stops at ports and airports some who have been stopped felt that the questions they were asked relating to their religious and political beliefs as well as the activities in communities was being used to build up profiles of them and to gather intelligence in general about the community. There was concern about the use of the information that was provided. Interviewees from some mosques felt that there was surveillance of activities in mosques taking place. In universities Islamic societies also felt that they were under surveillance. There were particular concerns about the use of information relating to Islamic society membership lists. It was felt that there needed to be greater clarity and guidance on when police have access to such information and the use they make of that information, including sharing of information with government and security agencies. There were also concerns amongst those working with “Channel Programme” about the use of the information and in particular the sharing of information about the identities of young people identified as vulnerable in the context of the Channel programme.
Measures to deal with organisations that promote hatred or violence
The Commission has a duty to work towards the elimination of prejudice against, hatred of and hostility towards members of groups protected by the equality legislation.51 Criminal laws exist against incitement to racial hatred52 and more recently against religious hatred and hatred based on sexual orientation53. There are specific provisions for terrorist offences aggravated by racial and religious hated under the 2001 Anti Terrorism Crime and Security Act 2001
At the time of the passing of the Criminal Justice and Immigration Act the Commission expressed its disappointment that the government did not consider it necessary to extend legislation specifically to prohibit incitement to hatred on grounds of trans status. The then government pointed to a lack of evidence to support its decision. However, we believe the government failed to appreciate that hate speech about homosexuality does not usually separate orientation from gender identity.
The Commission recognises the very real harms that organisations or individuals that promote hatred or violence can cause. The Commission also recognises the rights to freedom of speech and assembly under the European Convention on Human Rights, and their importance as the cornerstone of a democratic society. While qualified, any limitations to these rights must be necessary and proportionate. Interference with these rights can only be justified by “imperative necessities” and exceptions must be interpreted narrowly.54
The Commission notes the wide ranging counter terrorism legislation that has already been passed in relation to this issue. This includes proscription and glorification of terrorism under the Terrorism Act 2000 and its amendment under the Terrorism Act 2006, as well as offences in relation to incitement of terrorism abroad and disseminating terrorist publications. There are also laws ensuring that public protests are peaceful.
The Commission is concerned about the piecemeal manner in which the law on incitement to hatred is developing with differing tests. The Commission believes the government should undertake a review of the incitement to hatred laws to ensure that it adequately and proportionately achieves the aim of limiting all forms of hate speech, in accordance with protection of the right to freedom of expression and assembly.