Category: Terrorism

Home Office policy on forced marriage violates Article 8 family life

13 October 2011 by Rosalind English

R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant); R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45 – read judgment.

The Supreme Court has ruled that the Home Secretary’s refusal to grant visas to non-resident spouses under a certain age breached their right to family life under Article 8 of the Convention. A strong dissent from Lord Brown touches on the raw nerve of judicial competence and the role of Article 8 in policy making.  

The Supreme Court press summary sets out the factual details of the two cases. Essentially, the issue  was whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in Paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages, or at least those associated with assisting a claim for UK residency and citizenship. The minimum age requirement – recently raised from 18 to 21 – was designed to prevent young women who have UK citizenship or residence permission from being pressurised into sponsoring a fiancée or spouse seeking admission to this country. 
Continue reading →

National security concerns do trump human rights, sometimes

12 October 2011 by Alasdair Henderson

AM v. Secretary of State for the Home Department [2011] EWHC 2486  – read judgment 

The Home Secretary Theresa May was lambasted last week for an inaccurate reference to cats, but the more general view expressed by her and most of the media that the Human Rights Act is routinely getting in the way of national security interests is also arguably misleading.

Ironically, in the same week as the Home Secretary was telling the Conservative Party conference that ‘the Human Rights Act must go’ the High Court emphatically upheld her decision to renew a control order on a suspected terrorist.

There is a handy guide to the control orders regime here, and to “TPIMs”, their proposed successor, here. Essentially, control orders are strict conditions imposed on a terrorist suspect such as a curfew, electronic tagging or regular searches. In this case the suspect’s conditions included a ban on any internet access at his home, a ban on using USB memory sticks to transfer any data from his home to his university, restrictions on his access to the internet at university or when he visited his parents, and a requirement to make a phone call every day to a monitoring company.

Continue reading →

Challenge to intelligence services guidance succeeds in part – Shaheen Rahman

6 October 2011 by Guest Contributor

Equality and Human Rights Commission v Prime Minister & Ors [2011] EWHC 2401 (Admin) – Read judgment

A challenge to published guidance for intelligence officers interviewing detainees overseas has been partially successful.

Mr Al Bazzouni and the EHRC argued that the guidance as to what officers should do if they suspect detainees might be subject to torture or to cruel, inhuman or degrading treatment or punishment (“CIDT”) was unlawful.

Continue reading →

9/11 ten years on

11 September 2011 by Adam Wagner

It is ten years since the terror attacks of 11 September 2001. Like many people, I have been thinking back to where I was on that day.

Bizarrely, given what followed, I spent 11 September 2001 only a few miles away from the United States military base in Guantanamo Bay. I was travelling through Cuba with friends, and we had reached the Eastern tip of the island, the seaside village of Baracoa. We had even visited Guantanamo Bay’s entrance the previous day; it was a tourist attraction which the Lonely Planet guide billed as the place where you could find Cuba’s only MacDonalds.

Continue reading →

Anti-terrorism powers for a rainy day

4 September 2011 by Adam Wagner

Updated | Next week will mark the 10th anniversary of the 11 September 2001 terrorist attacks. Despite the intervening decade, the states threatened by terrorism are still puzzling out the right balance between the powers of security services and the rights of suspected terrorists to due process.

Although terrorism is now mercifully low on the public agenda, the effects of 9/11 are still being felt across the legal system. The United Kingdom is soon to open an independent inquiry into the improper treatment of detainees by security services following the terrorist attacks. As things stand, the UK’s major human rights groups are boycotting the inquiry for fear that the government will be able to suppress evidence.

The intelligence services have now tightened up their policy towards interviewing detainees overseas, but one policy which is still in flux is the control order regime, soon to be succeeded by Terrorism Prevention and Investigation Measures (TPIMs).

Continue reading →

Guest post: Will the Detainee Inquiry be human rights compliant? A JUSTICE reply – Eric Metcalfe

16 August 2011 by Guest Contributor

A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs wrote to the Detainee Inquiry. Among other things, we said that an Inquiry conducted on such terms would ‘plainly … not comply with Article 3 [of the ECHR]’. We also made clear that, were the Inquiry to proceed on this basis, we would not submit any evidence or attend any further meetings with the Inquiry team.

In his interesting article last week (‘Will the Detainee Inquiry be human rights compliant?’, 8 August) Matthew Flinn queried our claim that the Protocol fails to meet the requirements of article 3 ECHR. Notwithstanding the government’s own statement that it doesn’t intend for the Inquiry to comply with article 3, Flinn set out various arguments to suggest that the Protocol might nonetheless comply with article 3 in any event.

Continue reading →

Detainee Inquiry takes shape, responds to criticisms

26 July 2011 by Matthew Flinn

Binyam Mohamed

The Terms of Reference and the Protocol for the Government’s impending Detainee Inquiry have recently been published. The Protocol makes clear that the Inquiry is to be granted unfettered access to a broad range of information, but the limitations on the publication of that information have prompted criticism from human rights groups.

On 6th July 2010, Prime Minister David Cameron announced to the House of Commons that an independent inquiry would be held into whether or not the UK Government was implicated in or aware of the improper treatment of detainees held by other countries in the aftermath of the September 11th terrorist attacks. On the same day, he wrote to Sir Peter Gibson inviting him to lead the inquiry, and appointed as his fellow panel members Dame Janet Paraskeva and Peter Riddell. Philippa Whipple QC of 1 Crown Office Row has been appointed as counsel to the inquiry – she is not the writer of this post.

Continue reading →

Terrorism off the agenda, for now

20 July 2011 by Adam Wagner

Updated |The UK public only really worries about terrorism after an attack or a credible threat of one. Certainly, at the moment, it would take a serious threat to knock the Shakespearean drama of phone-hacking off the front pages. Nevertheless, the government and others continue their efforts to contain the threat, and it is perhaps a sign of the strategy’s success that we are not unduly worried by it.

Part of that strategy is that under terrorism law the secretary of state must appoint a person to review the operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2000, and in particular proscription of organisations, stop and search powers, arrest and detention powers and prosecutions for terrorist offences.  To that end, the new Independent Reviewer of Terrorism Legislation, David Anderson QC, has released his first annual report.

Continue reading →

Secret evidence v open justice: the current state of play

17 July 2011 by Rosalind English

1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.

On Wednesday last week, the Supreme Court handed out two apparently contradictory judgments on what seemed to be the same issue – see our reports here and here.  Had they taken leave of their senses? In one case, the court appeared to say, there was no illegality or human rights-incompatibility with a procedure that dispensed with the requirement that all the material must be shown to both parties in every case.  In the other, it ruled that such a “closed procedure” was such an insult to “fundamental” common law principles of open justice and fairness that no court, however lofty, would have the jurisdiction to order it without statutory authority.

The key to this apparent inconsistency lies in the principles at the heart of these cases, which pull in opposite directions: the principle of fair and open justice, or, in Article 6 terms, “equality of arms,” versus the principle that gives weight to the interests of national security.

In Tariq v Home Office the Court considered the permissibility and compatibility with European Union law and the European Convention of a closed material procedure authorised by certain statutory provisions. The issues in that case centred on the lawfulness and effect of those provisions and their compatibility with, amongst others, Article 6 of the Convention, whereas in Al Rawi v Home Office the Court was concerned with the position at common law. This superficially small distinction made the world of difference to the outcome of both cases.
Continue reading →

Courts have no inherent power to order closed procedure – Al Rawi in the Supreme Court

13 July 2011 by Rosalind English

1 Crown Office Row’s Peter Skelton appeared for The Security Services in this case. He is not the author of this post.

Al Rawi and others (Respondents) (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34 – read judgment; read press summary

At the centre of this appeal was the court’s power to order a “closed material procedure” for the whole or part of the trial of a civil claim for damages.  The question arose as a “preliminary issue” – a point to be determined on its own – in the appellants’  compensation claim for their alleged detention, rendition and mistreatment by foreign authorities in various locations, including Guantanamo Bay.

In countering the respondents’ claim for compensation, the appellant security services claimed that they had security sensitive material within their possession which they wished the court to consider in their defence but which could not be disclosed to the respondents. They therefore sought a “closed material procedure” for this part of their defence – a procedure whereby a party can withhold certain material from the other side where its disclosure would be contrary to the public interest.
Continue reading →

Deportation, secrecy and knowing the case against you

1 July 2011 by Matthew Flinn

IR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 704 – Read Judgment

The Court of Appeal has rejected an argument that Article 8 of the European Convention of Rights (ECHR), the right to private and family life,  requires that those challenging deportation and exclusion decisions on grounds of national security in proceedings before the Special Immigration Appeals Commission (SIAC) have to be given sufficient disclosure of the case against them to enable them to effectively instruct the special advocate representing their interests.

In his book “The Rule of Law”, the late Lord Tom Bingham enumerated a number of sub-rules to give content to that cardinal, oft-cited but rather vague constitutional principle. Unsurprisingly, one such sub-rule was that adjudicative procedures provided by the state should be fair, an idea which found expression in documents as old Magna Carta. In turn, this entails that, as Lord Mustill stated in In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, “each party to a judicial process should have an opportunity to answer by evidence and argument any adverse material which the tribunal make take into account when forming its opinion”.

Continue reading →

Does “bringing rights home” mean bringing problems home too?

13 June 2011 by Matthew Hill

McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011)- Read judgment

The Supreme Court has followed the European Court of Human Rights in ruling that an inquest into the death of two people killed before the introduction of the Human Rights Act is still bound by the rules laid down by that Act. In so doing, it preferred a “poorly reasoned and unstable decision” of the Strasbourg Court to a clearly drafted Act of Parliament and a recent decision of the House of Lords. How did this happen, should it have done so – and does it really matter?

The case concerned an appeal to the Supreme Court against a decision from the Northern Ireland Court of Appeal on which we have previously blogged at length.  The appellants were the families of two men killed by the British Army during an attack on a police station in Northern Ireland in 1990. Allegations were made that a “shoot to kill policy” was being operated by the security forces.

Continue reading →

New anti-terrorism bill published

1 June 2011 by Adam Wagner

Updated | As a follow-up to Isabel McArdle’s post on an unsuccessful challenge to a control order, a quick note to say that the long-heralded Terrorism Prevention and Investigation Measures Bill was published last week. 

The purpose of the bill, first previewed in January by the Counter-terroism review (see my post), is to abolish control orders and make provision for the imposition of terrorism prevention and investigation measures (so-called “TPIMs”). For more information on the human rights controversies surrounding control orders, see my post: Control orders: what are they are why do they matter?

Some useful links for more information on the bill:

• Download a PDF version of the bill – also available below through some technical jiggerypokery (Scribd)
• Track the progress of the bill through Parliament (you can even get updates via RSS or email)
• The Home Office press release, including a summary of the bill (reproduced below).
• The interesting European Convention on Human Rights memorandum, which includes detailed analysis of the human rights challenges to control orders so far.
• The January 2011 Review of Counter Terrorism and Security Powers
• Update – The House of Commons Library briefing paper on the bill (thanks to AlexanderHorne1)

Control orders and human rights to family life: not always incompatible

1 June 2011 by Isabel McArdle

CD v Secretary of State for the Home Department [2011] EWHC 1273 (Admin) Read judgment

As readers of this blog will know, control orders have often been successfully challenged in the courts on human rights grounds. But in this case, an order forcing a person to relocate to a different part of the country was found to be lawful.

The Prevention of Terrorism Act 2005 gives the Home Secretary the power create to control orders, which impose obligations on persons “for purposes connected with protecting members of the public from a risk of terrorism”. One of the obligations permitted is a restriction on an individual’s place of residence.

Continue reading →

7/7 inquest findings published – 52 unlawful killings

6 May 2011 by Adam Wagner

Lady Justice Hallett, Assistant Deputy Coroner for Inner West London, is giving her findings in the combined inquests into the deaths resulting from the “7/7” London bombings on the 7 July 2005 which killed 52 and injured over 700.

Unsurprisingly, the coroner has found that the 52 people who died as a result of the bombings were unlawfully killed. She also found that they would have died “whatever time the emergency services reached and rescued them”. The coroner made 9 recommendations (using her power under Rule 43 of the Coroners Rules) for the future prevention of such events, which are reproduced in full below.

Continue reading →