BRIEFING: Emergency Legislation Violates Human Rights Standards
Home Secretary David Blunkett is taking steps to introduce emergency legislation as a result of the atrocities of September 11. The Anti-terrorism, Crime and Security Bill includes measures to detain terrorist suspects indefinitely without trial. The introduction of such a measure raises questions about the UK’s human rights obligations.
Who will the law target?
It is specifically aimed at foreign nationals who are under suspicion of terrorist activities abroad or may wish to pursue those activities in the UK. They could be sent to a ‘safe’ third country or detained where they cannot be returned to their country of origin where they are likely to face persecution.
The failure of the government to define who is a terrorist suspect creates serious problems. Indeed those branded as terrorists may be legitimate organisations trying to overthrow oppressive regimes in their country. Furthermore, asylum seekers will find themselves being held in detention in the absence of concrete evidence, merely on the basis of suspicion.
Denial of due process
Detainees would be held for six months after which the Special Immigration Appeals Commission will review their case and continue to do so every six months. However, such a long period of detention without prompt access to an independent, judicial authority is a violation of human rights standards and norms. Moreover, the reviews should consider the substance of the cases and detainees should have the right to seek judicial review of the decision to detain.
The situation is exacerbated by the fact that the six-monthly reviews will be held in closed court, denying the opportunity of public scrutiny of the proceedings. Procedural safeguards need to put into place to prevent arbitrary detention.
Can the UK derogate from its human rights obligations?
The UK government is a signatory to the European Convention on Human Rights and therefore is under a legal obligation to protect the right to liberty and security of the person as guaranteed by Article 5 of the European Convention on Human Rights. However, it is a derogable right and the UK government can opt out of its obligations by declaring a state of emergency as required by Article 15.
Requirements of derogation from human rights obligations
However, it is debatable whether a state of emergency does exist which threatens the life of the nation, particularly in light of the fact that none of the other European signatories have felt the need to declare a state of emergency. It is furthermore debatable whether the measures of internment are strictly proportional to the exigencies required by the situation. The government must show that there is a real need to introduce such measures, particularly in light of the fact that it has not been subject to any terrorist activities linked to September 11.
The government proposes to implement these measures for a year after which it will review the necessity. However, the existence of a state of emergency requires periodic reviews of shorter duration, as do the measures introduced during that period.
The European Court of Human Rights
Detention of terrorist suspects without trial was considered in Ireland v UK, the European court of human rights held the government could derogate from it obligations under Article 5 of the European Convention on Human Rights after declaring a public emergency as required by article 15. However, it held that terrorist suspects could not be detained without trial for longer than 48 hours.
The UK’s proposal to detain indefinitely would undoubtedly result in a violation of its obligations under the Convention. Such measures would undoubtedly result in the incarceration of innocent people and would be in direct violation of human rights standards and norms.
Effectiveness of internment
The detention of terrorist suspects is aimed at nationals of particular countries such as Iran, Iraq, Libya – predominantly Muslim countries which have been labeled as rogue states that harbour terrorists. Studies of current immigration practices show that despite abolishing the ‘white list’ of countries whose nationals are likely to be detained, the practice still continues, and this is likely to escalate if a state of emergency is declared.
The targeting of those nationals and the disproportionate effect of the anti-terrorism measure upon them, is likely to create tension amongst the British Muslim communities who may again feel that Muslims are being intentionally subjected to adverse treatment. This measure, therefore, has the potential to strain good race relations in the country.
Ultimately such a measure will prove to be ineffective and will undoubtedly result in the incarceration of innocent asylum seekers who, having fled from oppression in their own homelands, will find themselves having draconian measures imposed upon them in the ‘safe haven’ of the UK.
By introducing such measures, the British government is failing to uphold basic civil liberties and human rights.
For further information, please contact IHRC on (+44) 20 8902 0888, fax (+44) 8902 0889, e-mail: info@ihrc.org
