Background Briefing

Executive Summary

The British government has announced its intention to introduce a new counterterrorism bill by the end of 2007. The forthcoming draft legislation, if passed by Parliament, will become the sixth major counterterrorism law since 2000. In July 2007 the Home Office published several consultation documents detailing possible measures for inclusion in the bill.

This commentary analyzes some of the key proposals in light of the United Kingdom’s international human rights obligations. It also assesses whether the measures are likely to be effective or counterproductive. Counterterrorism measures that violate human rights undermine the UK’s moral legitimacy at home and abroad, damaging its ability to win the battle of ideas that is central to long-term success in countering terrorism. They erode public trust in law enforcement and the security services, and alienate communities whose cooperation is critical in the fight against terrorism.

Successfully confronting terrorism over the long term requires more than security measures. In the words of Prime Minister Gordon Brown, it depends upon winning the “battle of hearts and minds.” Efforts to prevent radicalization and recruitment have been a central strand of the UK’s counterterrorism strategy since the July 2005 attacks in London. The success of those efforts depends on an approach to counterterrorism that upholds rather than weakens core human rights standards.

Several of the measures being explored by the government are sensible, and do not raise undue human rights concerns. The possible relaxation of the ban on the use of phone tap and other intercept evidence in criminal trials is a notable example. A government-commissioned review of the ban by a committee of senior security-cleared parliamentarians (Privy Counsellors) is expected to publish its findings by the end of October 2007. There is broad consensus, including among Britain’s top police officer and top prosecutor, that the ban is a disproportionate response to a genuine concern over disclosure of intelligence sources and methods, and that allowing the use of intercept evidence would facilitate the prosecution of terrorism suspects. Its use might also lessen the need to rely on measures with serious human rights implications, such as long periods of pre-charge detention.

Broadening police power to question terrorism suspects after they have been charged is also worth consideration. Currently, police questioning post-charge can occur only under very restricted circumstances. Provided safeguards are in place, including the presence of counsel and protection of the right to silence, allowing the police to continue questioning suspects about matters relating to the offense is far preferable to a further extension of pre-charge detention. 

The human rights implications of other proposals, including enhanced sentences for ordinary criminal offenses committed for a terrorist purpose and revisions to the definition of terrorism, will depend on precisely what is contained in the draft bill presented to Parliament.

Enhanced sentences for ordinary crimes committed for a terrorism-related purpose are likely to be compatible with international human rights law provided that fair trial standards are respected. Our concerns arise from the fact that under the government’s proposals, enhanced sentences trigger requirements for offenders to report their residence and whereabouts to the police following their release from custody. Offenders face up to five years in prison if they fail to comply with such requirements. In our assessment, fair trial standards require that a measure that carries with it the potential for such a severe sanction should only be imposed where there is evidence that establishes beyond a reasonable doubt that the underlying offense was committed for a terrorism-related purpose.

The government’s willingness to amend the definition of terrorism contained in the Terrorism Act 2000 is welcome in principle. But the change the government has proposed—which would extend the definition to actions motivated by a racial or ethnic cause—does nothing to address the widespread concern that the definition is overbroad. The proposed change is one of two recommendations that emerged from the review of the definition by Lord Carlile, the independent reviewer of terrorism legislation. It should be accompanied by an amendment reflecting the other recommendation, which would define as terrorism acts aimed at affecting the government only where they are aimed at intimidating, coercing, or unduly compelling it, rather than the current broad “influencing.”

Human Rights Watch remains deeply concerned about the intention of the government to extend pre-charge detention beyond the current 28-day limit. We opposed the extension of pre-charge detention to 28 days under the Terrorism Act 2006, and consider a further extension would violate human rights law.

Such a serious interference with the right to liberty for those not charged with any crime will violate the UK’s obligations under the European Convention on Human Rights and the International Covenant on Civil and Political Rights. Adopting powers that allow terrorism suspects—many if not most of whom would doubtless be British Muslims—to be detained without charge for months at a time would be deeply damaging to the government’s efforts to win “hearts and minds.” It risks undermining the willingness of Muslim communities to cooperate with the police and security services.

Human Rights Watch is also alarmed that consideration is being given to judicially-supervised pre-charge detention without time-limits. The proposal for judge-managed investigations based on the French examining magistrates’ system, as currently formulated, would effectively introduce pre-charge detention without an upper time-limit. It would amount to the reintroduction of internment, a policy widely acknowledged to have alienated communities in Northern Ireland.

The government admits that the extended detention powers are not currently needed. Even were the government to show in the future that their use was necessary for complex police counterterrorism investigations, there is a raft of current and proposed measures that largely address the government’s stated objectives. Current measures include the offense of acts preparatory to terrorism, and the temporary use of lower charging standards by prosecutors. Proposals to allow post-charge questioning and allow the use of phone tap and other intercept evidence would also assist. The impact of such options should be fully assessed before consideration is given to extending pre-charge detention, a measure that would seriously interfere with human rights and be deeply counterproductive.

If the government is serious about winning hearts and minds, it should abandon its efforts to extend pre-charge detention and should amend its other proposals to make them compatible with human rights law. Bending the rules on human rights will undermine Britain’s long-term security.