EHRC submission: Review of Counter Terrorism and Security Powers

Executive summary

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.

Download the full submission: Review of Counter Terrorism and Security Powers

Last Updated: 13 Sep 2010