Coalition Against Secret Evidence

By Aisha Maniar

On 13 July 2010, Home Secretary Theresa May announced in parliament that her department would conduct an urgent review of counter-terrorism and security powers.  Part of the coalition government agreement [1], six areas were covered, including deportation with assurances (DWA) and control orders. At the time, the Home Secretary stated that the purpose of the review was to “to put right the failures of the last Government and, in so doing, restore the ancient civil liberties that should be synonymous with the name of our country” [2]

Set for publication in the autumn of 2010,  Review of Counter-Terrorism and Security Powers:  Review  Findings and Recommendation was finally published on 26 January 2011 [3].  The review of these six policy areas, considered the “most sensitive and controversial counter-terrorism and security powers”, included a consultation with the police, security and intelligence agencies, human rights and civil liberties NGOs (Liberty, Amnesty International, Justice and Human Rights Watch), other NGOS, community groups, experts and individual submissions to a public review. Several public consultation meetings were also held across the country. Lord MacDonald QC, former Director of Public Prosecutions, was asked to critique the review independently. For national security reasons, the original written review “included a significant amount of additional sensitive material which cannot be disclosed”  (Review Findings and Recommendations, page 6).

In spite of the broad and thorough basis of the consultation and review, the final recommendations fail to address the main concerns that have long been raised and it is not entirely clear that the recommendations and the resulting policy and legislation changes will “correct the imbalance that has developed between the State’s security powers and civil liberties” (Review Findings and Recommendations, page 3) .

With respect to deportation with assurances, the intention has never been to replace or end the measure. Rather, it is to extend “the use of “Deportation with Assurances” in a manner that is consistent with our legal and human rights obligations”; this fails to note the very obvious fact that the mere need for “assurances” that human rights will not be breached from some countries makes such a basis for deportation tenuous at best. Under current provisions, nine individuals have been deported to Algeria and 14 cases are pending appeal.

Starting with this flawed premise and focusing largely on the legality of the actual “assurances” and arrangements for deportation, the review did not consider that these assurances provide “insufficient protection or that the policy undermines the absolute prohibition of torture” (Review Findings and Recommendations, page 34).  This is in spite of the fact that several countries the UK has accepted these assurances from on paper are signatories to the UN Convention Against Torture but are known to practice it, such as Libya.

The review noted “criticism about the use of closed evidence in deportation cases” (Review Findings and Recommendations, page 34), but fails to address the lack of transparency in the process and the extraordinary judicial proceedings involved, in spite of its recognition of the key role played by the courts. Given the failure to address the issue of closed evidence, it is worrying that the review recommends the government “actively pursue deportation arrangements with more countries”.

The review also failed to address the inhumane and arbitrary conditions appellants and their families are subject to, in a process which for some has lasted almost a decade. On a more positive note, and in order to get the government to deal with its “presentation of the ‘safety on return’ aspect”, no doubt to strengthen its own case, the review recommended an annual independent report on such deportations and that the government increase the number of expert witnesses it provides in court. In the case of two Libyan appellants who won their appeal against deportation, DD and AS (2008)[4], the government’s expert witness on Libya was none other than the former British ambassador to Libya who had signed the memorandum of understanding in 2005.

On this particular issue, the review conceded that a ruling from the European Court of Human Rights (ECtHR) due at some point this year in the “OO” case could have “a significant impact on deportation policy”. The awaited outcome of this case will strongly affect the direction of policy on this matter.

Control orders, on the other hand, introduced in 2005 as an emergency power, deal with situations where neither prosecution nor deportation is considered an option. Introduced following a House of Lords’ ruling that the indefinite detention without trial or charge of foreign terrorist suspects at Belmarsh was unlawful, the prisoners were either subsequently subject to proceedings for national security deportation with assurances or placed under a control order, and in some cases, some individuals have been subject to both regimes.

Both foreign and British nationals have been subject to control orders. In all, 48 individuals have been subject to restrictions and currently (December 2010), there are 8 controlees, all of whom are British nationals. One of the more controversial issues covered in the review, and indeed one of the two which received the most publicity, the key difficulty with the measure lies in the use of closed evidence in proceedings and the restrictive and intrusive measures enforced.

The review recommended that control orders are repealed (as introduced by the 2005 Prevention of Terrorism Act) and a new set of “less intrusive, more clearly and tightly defined” (Review Findings and Recommendations, page 41) are introduced. Having taken into consideration the impact of orders on the lives of controlees, their families, it calls for an end to forced relocation and lengthy curfews “that prevent individuals leading a normal daily life”.

Control orders are now set to be replaced by “terrorism prevention and investigation measures” (or T-PIMs). Slated by many critics of the current regime and NGOs as little more than “control orders lite”, the new system will involve measures imposed by the Home Secretary with permission from the High Court. Once imposed, the High Court will undertake a mandatory review of the measures in the case and will then have the power to quash or revoke the measures. The maximum time limit for the measures will be two years and new measures can only be imposed after this period if new evidence of involvement in terrorist-related activity comes to light. The electronic tagging of controlees will remain in place for some and restrictions, although lighter, will remain in place for exclusion from particular places and overseas travel. The new measures will also place “only limited restrictions on communications” such as the use of the internet and the freedom of association. The measures may require regular reporting to the police and the imposition of some financial restrictions. A breach of these measures will be a criminal offence.

A central feature of proceedings both in control order and DWA appeal cases is the use of “special advocates”, security-vetted barristers who represent the controlee/appellant in closed proceedings, but who cannot consequently communicate with their client and their counsel. The review took the use of this regime into consideration; however, it will be the subject of greater consideration in the forthcoming Green Paper on the use of sensitive materials in judicial proceedings, set for publication later this year.

In his independent review, Liberal Democrat peer Lord MacDonald supports the government’s plans to continue and extend the use of deportation with assurances. He counters the concerns raised by some NGOs that this regime gives “succour to regimes that torture” stating that “it seems to me that the very process of engaging with other countries on the issue of the appropriate treatment of prisoners, and obtaining guarantees in that regard, is likely to have a positive effect on the regimes in question” .

Although the review itself states that this policy, key to the UK’s foreign policy in general, is part of the “context of our work to promote and improve human rights around the world” (Review Findings and Recommendations, page 35), this fails to take into consideration the British government’s poor record on torture and torturers in general. Over the past year, the Binyam Mohamed case and admissions at the Chilcot Inquiry by former Ministry of Defence ministers and officials on the inhumane treatment of Iraqi prisoners by British soldiers show that Britain has a dubious commitment to the absolute prohibition on the use of torture and related offences.

Deportation with assurances, through memoranda of understanding obtained by the Foreign Office could be used as a bargaining chip in international trade and public relations. In the case of Libya, last January the Daily Telegraph reporting on a Wikileak disclosure  revealed that Britain was threatened by Libyan officials that there would be “enormous repercussions” if Abdel Basset Megrahi was not returned to the country [5].  Such a possibility, clearly subject to Britain’s diplomatic and trade interests and not national security concerns, is a frightening prospect for the alleged human rights the policy seeks to protect. The contrivance and manipulation in this case shows how easily prisoners and other vulnerable individuals can become pawns in international diplomacy and trade between States.

In early February, Lord Carlile of Berriew, the outgoing independent reviewer of terrorism legislation, soon to be replaced by David Anderson QC, in his final report [6] in this capacity, supported the government’s plan to extend the use of DWA in the review and the recommendations made in relation to it, and stated that the European Court of Human Rights’ stance on this matter has had the effect of making “the UK a safe haven for some individuals whose determination is to damage the UK and its citizens”. He advances the case for the use of intercept evidence and states that control orders should remain in place until legislation is passed to replace it as it would otherwise “have a damaging effect on national security” .

Since the publication of the review, the Home Office has moved forward to publish draft legislation to repeal legislation on the length of pre-trial detention, another issue considered. Further draft laws to deal with the other aspects covered in the review, including the repeal of control orders, will be issued in the coming months. With respect to deportation with assurances, the forthcoming ECtHR ruling in the OO case will have a major impact on policy and practice in this area.

Close attention should be paid to future policy and legislation plans further to the review, the ECtHR ruling and the Green Paper on the use of sensitive materials in judicial proceedings with respect to the use of special advocates and closed proceedings in court. Given the “business as usual” nature of the attitude to deportation with assurances, consideration must also be given to how current upheavals in the Middle East and East Africa (Ethiopia) affect the UK’s bilateral relations with the countries affected and the role of human rights therein.

A useful further resource on the review:   http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-05852.pdf

[1] The Coalition: Our Programme for Government: http://www.cabinetoffice.gov.uk/sites/default/files/resources/coalition_programme_for_government.pdf

[2] Hansard, 13 July 2010, column 798 : http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100713/debtext/100713-0001.htm

[3]  Review of Counter-Terrorism and Security Powers:  Review  Findings and Recommendations,  January 2011 http://www.homeoffice.gov.uk/publications/counter-terrorism/review-of-ct-security-powers/.  Many of the submissions made by human rights and civil liberties NGOs for the review can be viewed on their respective websites.

[4] AS & DD v Secretary of State for the Home Department [2008] EWCA Civ 289:  http://www.bailii.org/ew/cases/EWCA/Civ/2008/289.html

[5] The Daily Telegraph, 31 January 2011: http://www.telegraph.co.uk/news/wikileaks-files/libya-wikileaks/8294871/PAN-AM-103-BOMBER-HAS-INCURABLE-CANCER-LIBYANS-SEEK-HIS-RELEASE.html

[6]  3 February 2011: http://www.homeoffice.gov.uk/publications/counter-terrorism/independent-reviews/lord-carlile-sixth-report?view=Binary