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SACC response to counter-terror review

Press Release from SACC

Coalition opts to continue Labour's assault on civil liberties
Policy of "engaging" with countries that torture is "insulting nonsense", says civil liberties group

Civil liberties group Scotland Against Criminalising Communities (SACC) has today reacted to the announcement of the results of the UK government’s counter-terrorism review. SACC chair Richard Haley says:

"The Government's proposals reveal that the Coalition has no intention of rolling back New Labour's assault on civil liberties. The proposals do nothing to tackle one of the biggest injustices in our legal system - the use of secret evidence to punish people by means of control orders (now to be re-branded as "terrorism prevention and investigation measures") and by means of immigration bail conditions that are even more punitive than control orders. The Government has used the review to re-state its shameful commitment to "engage" with countries that torture, and to continue deporting refugees to those countries. The decision by the Government to abandon 28-day pre-charge detention after years of struggle shows that campaigning works. The political skirmishes that surrounded the Government's internal review are over. Now it's time to begin a serious fight, in Parliament and in the country, to regain our freedoms."

A full statement from SACC can be read below. SACC says that the Government has changed key policies - the control order regime and stop and search powers - only where forced to do so by Britain's Supreme Court and the European Court. It describes the Government's policy of "engaging" with countries that torture as "insulting nonsense" and claims that the policy encourages torture.

SACC says that it will continue to campaign for the repeal of Britain's terrorism laws and to campaign, as a step in that direction, for real reform of the 6 powers selected by the Government for consideration by the review.

SACC's submission to the review was published in October 2010.


Statement from Scotland Against Criminalising Communities

Wednesday's publication of the long-delayed findings of the Government's review of counter-terrorism powers explodes any hope that the Coalition is serious about rolling back Labour's assault on civil liberties. The Government's response to the most controversial elements of counter-terrorism policy has been to continue Labour's strategy with as little change as possible. The Government has changed key policies - the control order regime and stop and search powers - only where forced to by Britain's Supreme Court and the European Court. Its strategy is apparently to impose the maximum injustice that it can get away with. It has not tackled the use of secret evidence. And it seems determined to be at least as vindictive as New Labour in its hounding of refugees who turn out to be politically inconvenient.

The review says that "engaging" with countries that torture - for example, by deporting people to such countries - is more likely to secure human rights improvements than "refusing to engage." This is insulting nonsense and no one will believe it. It is an announcement that Government intends to continue deporting people to torture and that it thinks no one can stop it.

Local authority surveillance powers - Scottish Government must take action

Away from the frontline of counter-terrorism policy, the review's report includes some worthwhile changes. It proposes new curbs on the powers given to local authorities under the Regulation of Investigatory Powers Act (RIPA) to carry out surveillance. SACC believes that covert surveillance powers should be taken away from local authorities altogether. Suspected offences that are serious enough to justify covert surveillance are serious enough to justify a police investigation rather than investigation by council officials. The review suggests instead that local authorities should be required to obtain permission from a magistrate before carrying out surveillance. This falls some way short of SACC's recommendation but it is a step in the right direction.

The review does not address the situation in Scotland, where local authority surveillance is subject to the Regulation of Investigatory Powers Act (Scotland) Act (RIPSA). RIPSA is closely modeled on applicable sections of RIPA and was passed in October 2000 by an inexperienced Scottish Parliament after an inadequate debate. The Scottish Government needs to act urgently to provide legislation of its own that protects the privacy of people in Scotland.

Control orders re-branded - a Labour-style fudge

Shadow Home Secretary Yvette Cooper calls the review of counter-terrorism powers "a political fudge dogged by leaks, confusion and horse-trading." She's right. Fudge and horse-trading were Labour's strategy, and now they are the Coalition's policy too.

Control orders were invented in haste by Labour as a fudge to allow it to evade the December 2004 Law Lords ruling against internment of foreign nationals suspected by the Government of links to terrorism. They allow the Home Secretary to impose a range of restrictions - including house arrest - on anyone suspected of "terrorism-related activity." A person under a control order can appeal against it. But the Government does not have to prove that the person has committed any criminal offence. And the Government can present evidence to the court in secret to justify the control order.

The control order regime became unsustainable following a further Law Lords ruling, in June 2009, which meant that control orders at the more harshly punitive end of the spectrum can only be imposed if the Government is willing to disclose sufficient evidence for a meaningful defence to be mounted. A new fudge was required. The Home Office, several months late, has devised one.

Control Orders are to be re-branded as "terrorism prevention and investigation measures." Curfews are to be re-labeled as "overnight residence requirements." None of this changes the fact that people are to be punished without a trial. None of it changes the fact that people are to be punished on the basis of secret evidence. None of it changes the fact that people can be punished for activity that, even if proven, would not amount to a criminal offence. A suggestion from Lord Ken MacDonald QC that control orders should be imposed only when linked to a criminal investigation would have addressed this issue but was excluded from the findings of the review. It is published in Lord MacDonald's separate report on the review. Lord MacDonald was appointed by the Government to provide independent oversight of the review.

Perhaps most disturbingly of all, the new measures, unlike control orders, will not be subject to annual renewal by Parliament. So these draconian measures will just become a routine part of British law.

SACC will continue to campaign for the abolition of control orders, whatever name they go by. And we will continue to insist that secret evidence has no place in Britain's legal system.

Deportation to torture

The Government's policy of deporting people that it claims are engaged in "terrorist related activity", even when these people have been granted refugee status and have accordingly been acknowledged to be at risk of torture and other abuse, is at least as problematic as the control order regime. Deportation to torture is made possible, despite the obligation under international law to do no such thing, by the fig-leaf of unenforceable diplomatic assurances, from countries known to practice torture, that they will not torture the particular people being deported.

Like control order victims, deportation victims can be punished for activity that, even if proven, would not be criminal. Like control order victims, they can be punished without the allegations against them being proven beyond reasonable doubt. Like control order victims, they can be punished on the basis of evidence that neither they nor the public are allowed to hear. Like control order victims (but without the protection of the 2009 Law Lords ruling on control orders) they can, pending deportation, be forced to live under restrictions that amount to house arrest.

Deportation to torture (disguised by diplomatic assurances) has not so far been blocked by the courts, though a key case is currently before the the European Court of Human Rights. In keeping with it's strategy of imposing the maximum injustice that it can get away with, the Government is for the moment proposing no significant change to its policy of deportation to torture. Instead, the review sets out some tactical devices that might help the Government to achieve greater success for its policy on a case-by-case basis. For it example, it recommends increasing the number of expert witnesses fielded in court in support of the Government. It also recommends a spin offensive, engaging with "more international organisations, and more NGOs to increase understanding of, and support for, this policy in the context of our work to promote and improve human rights around the world."

In his separate report on the review Lord Ken MacDonald QC says in relation to diplomatic assurances:

"I cannot see how UK government insistence upon the proper treatment of detainees encourages torture and I conclude that it does not."

This is disingenuous and ignores the experience of almost everyone working internationally to eradicate torture. The gap between promises and facts on the ground is wide. Many countries that practice torture are signatories to the UN Convention Against Torture. They are required to cooperate with the reporting and monitoring mechanisms of the UN's Committee Against Torture. These mechanisms are substantive and are overseen by experts with a realistic grasp of the ways that abusive regimes seek to evade the ban on torture. They have nevertheless failed to eradicate torture, or even to make it a rarity. The assurances and monitoring methods the British Government requires in relation to deportations are much less comprehensive. They are fatally undermined by being focussed on individuals who must live, with family and friends, in an environment where torture is rife. They are also undermined by the British Government's willingness to work with local monitoring organisations that lack credibility and are dependent on their own governments. And they are undermined by a clear conflict of interest. Assurances and monitoring arrangements are set up by the British Government not with a view to eradicating torture, but with a view to persuading British courts that further deportations should be allowed.

It is easy to see how what Ken MacDonald calls "UK government insistence upon the proper treatment of detainees" can encourage torture. It allows abusive regimes to bypass the mechanisms of the Committee Against Torture in their bilateral relations with Britain. In return for meeting Britain's more limited requirements, they obtain good relations with Britain and may reasonably expect that this will facilitate the exchange of intelligence with Britain and increase the likelihood of the British Government taking action against political opponents living in Britain. At best, the bilateral agreements reduce the pressure on abusive regimes to make the systemic changes required of them by the Convention Against Torture. At worst, they actively encourage torture in pursuit of goals shared with Britain.

There can never be any justification for deporting refugees to countries from which they have fled in justifiable fear of abuse, or to anywhere else where they would be at risk of abuse. A diplomatic note promising that a deportee will be safe from torture, issued by a country known to practice torture, can never be an adequate assurance that the deportee and their family will be safe. The only adequate assurance of safety is a clean track-record on torture within the destination country coupled with a proven record of effective implementation of the provisions of the UN Convention Against Torture and with careful consideration of any special circumstances that put the deportee at risk of torture or ill-treatment.

New Stop and Search powers - new problems

The blanket stop and search powers provided by Section 44 of the Terrorism Act 2000 have been ruled unlawful by the European Court of Human Rights. The repeal of Section 44 is therefore inevitable. Regrettably, the Government has chosen to propose replacement powers that will create new difficulties.

The new powers, like Section 44, will allow people and vehicles to be searched without reasonable suspicion. But they can only be authorised if a senior police officer reasonably suspects that an act of terrorism will take place, can only last as long as necessary, and can only cover a geographical area as wide as necessary.

This is a welcome move away from the absurdly wide use to which police have put Section 44 powers. But the routine assertion by the Home Office that the terrorist threat is "severe" and that a terrorist attack is "highly likely" could lead police almost anywhere to a reasonable suspicion that an act of terrorism will take place. If interpreted in this way, the new powers would be unlikely to survive an appeal to the European Court of Human Rights.

The review recommends that "the purposes for which the search may be conducted should be narrowed to looking for evidence that the individual is a terrorist or that the vehicle is being used for purposes of terrorism rather than for articles which may be used in connection with terrorism." The Government is right to conclude that the purposes for which Section 44 searches could be conducted were drawn too widely. But the new powers could be open to even greater abuse. Instead of looking for particular kinds of object, police will be looking for evidence that an individual is a particular kind of person. The problem is compounded by the extremely wide definitions of "terrorism" and "terrorist" in British law, and by the established use of racial and religious profiling by police in relation to terrorism. Abuse of powers drafted along these lines seems almost certain.

SACC believes that blanket stop and search powers (ie powers to stop and search without reasonable suspicion) are unnecessary, counterproductive and open to discriminatory use. Existing police powers to stop and search people where there are reasonable grounds for suspicion are more than sufficient.

The end of 28 day detention - a victory for campaigners

The Government has decided not to ask Parliament to renew the police power to hold terrorist suspects for up to 28 days without charge. 28-day detention fell due for renewal on 24 January. The maximum permitted duration for pre-charge detention in terrorism cases has therefore reverted to 14 days. That is far too long, as anyone who has endured it will attest. The Government's decision is nevertheless welcome. It's safe to assume that the decision was prompted by the proven capacity of civil liberties campaigners and the wider public to defeat attempts to impose long term pre-charge detention.

Tony Blair suffered his first Parliamentary defeat when he attempted to extend the maximum duration of pre-charge detention to 90 days. Gordon Brown had to bully and bribe his backbenchers so shamelessly to obtain Commons agreement to 42-day pre-charge detention that he didn't dare put the measure to the Commons again after it was defeated in the House of Lords. In July 2010 Parliament renewed 28-day detention powers for 6 months, instead of the usual year, in anticipation of a Government decision to cut pre-charge detention. The stage was set for another memorable parliamentary battle had the Government chosen not to do so.

Regrettably, the Government says that it will prepare emergency legislation that would allow 28-day detention to be re-introduced following a major terrorist attack. This means, in effect, that the Government is contemplating internment. That would be a lethally divisive course of action. SACC hopes that the Government will shelve this misguided plan. 28-day detention is a bad idea now and would be a worse idea in the aftermath of a major terrorist attack.

SACC will continue to campaign for the repeal of Britain's terrorism laws and, as a step in that direction, for real reform of the 6 powers selected by the Government for consideration by the review. Our submission to the review, published in October 2010, sets out how that can be achieved and provides clear solutions to the many difficulties that the Government has fudged its way around. We commend it to MPs. The defeat of 28-day detention shows what can be achieved by determined backbenchers. The political skirmishes that surrounded the Government's internal review are now over. It's time to begin a serious fight, in Parliament and in the country, to regain our freedoms.

Read SACC's submission to the review