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Liberty and JUSTICE Submission to the United Nations Human Rights Committee

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Liberty and JUSTICE Submission to the United Nations Human Rights Committee Liberty and JUSTICE submission to the United Nations Human Rights Committee Response to the United Kingdom’s sixth periodic report under the International Covenant on Civil and Political Rights October 2007 About JUSTICE JUSTICE is an all-party, human rights and law reform organisation founded in 1957. Its purpose is to advance justice, human rights and the rule of law. It is the British section of the International Commission of Jurists. About Liberty Liberty (The National Council for Civil Liberties) is one of the UK’s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research. Contact Eric Metcalfe Gareth Crossman Director of Human Rights Policy Policy Director JUSTICE Liberty [email protected] [email protected] 020 7762 6415 020 7387 3654 2 Introduction 1. Liberty and JUSTICE welcome the opportunity to comment on the United Kingdom’s sixth periodic report to the Human Rights Committee. While this submission is not meant as a comprehensive response to the UK’s report,1 we raise a number of issues concerning the protection of Covenant rights in the UK. 2. In particular, we wish to highlight serious problems with various counter-terrorism measures introduced by the UK government since its fifth report, including: • indefinite detention of foreign nationals suspected of terrorism; • control orders; • pre-charge detention in terrorism cases; • the breadth of the statutory definition of ‘terrorism’; • the offence of encouragement to terrorism; and • stop-and-search powers under section 44 of the Terrorism Act 2000. 3. We also highlight concerns with: • ill-treatment of prisoners and indefinite detention by UK troops in Iraq; • use of diplomatic assurances to deport suspects to countries known to practice torture; • potential UK complicity in the practice of extraordinary rendition by the US; • attacks on the judiciary, the Human Rights Act 1998 and the European Convention on Human Rights by senior government ministers; • retention of DNA samples of persons acquitted or not charged with any criminal offence; • restrictions on freedom of expression and assembly in Parliament Square; • use of Anti-social Behaviour Orders, imposing criminal sanctions by way of civil proceedings involving hearsay evidence; • interferences with prisoners rights • significant curtailment of rights of asylum seekers. 1 Specifically, this submission does not attempt to deal exhaustively with all of the matters raised in the government's report, or with all of the ICCPR provisions. Neither does this report deal with the concerns regarding the protection of Covenant rights in Northern Ireland nor in relation to the British Overseas Territories or Crown Dependencies. 3 General political structure – role of judiciary (article 14(1)) 4. Although the Constitutional Reform Act 2005 (unmentioned in the government’s report) introduced a number of welcome improvements to the separation of powers in the UK, including ending the role of the Lord Chancellor, a government minister, as head of the judiciary and the creation of a Supreme Court separate from the House of Lords (the upper house of Parliament), we are concerned at the continuing failure of the government to (i) guarantee the judiciary sufficient resources to ensure their independence2 and (ii) prevent senior ministers from making inaccurate and often inflammatory criticism of judicial decisions and the judiciary as a whole.3 In our view, these failures risk undermining the right to a fair hearing by ‘a competent, independent and impartial tribunal established by law’ as guaranteed by Article 14(1) of the Covenant. - Failure to guarantee the budgetary autonomy of the judiciary from the executive4 5. In March 2007 the government announced the creation of a new Ministry of Justice which would assume responsibility for prisons and offender management in addition to its responsibility for funding and providing administrative support to the courts. Although section 3(1) of the 2005 Act imposed a statutory duty on the Lord Chancellor to ‘uphold the continued independence of the judiciary’,5 the government has so far refused to guarantee the judiciary autonomous control of the budget for the administration of the courts.6 The failure of the government to make budgetary arrangements ensuring judicial independence has been criticised by committees of both Houses of Parliament.7 On 12 September 2007, the Lord Chief Justice, Lord Phillips of Worth Matravers said:8 2 Principle 7 of the UN Principles for the Independence of the Judiciary (Adopted 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985) provides that: ‘[i]t is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions’. 3 Principle 4 of the UN Basic Principles for the Independence of the Judiciary provides that: ‘[t]here shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law’. 4 See Principle 7 of the UN Principles for the Independence of the Judiciary, n2 above. 5 Section 17 of the 2005 Act also provides the Lord Chancellor’s oath of office which includes an avowal to ‘discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible’. 6 As a paper released on behalf of the Judiciary of England and Wales noted: ‘What must be avoided, both in perception and in practice, is a position whereby judicial decision-making is influenced or constrained by … financial considerations’ (Judiciary of England and Wales, Ministry of Justice: Judicial Position Paper (http://www.parliament.uk/documents/upload/Judicial%20Position%20Paper.pdf)). 7 See the report of the House of Lords Constitution Committee, Relations between the executive, judiciary and Parliament (26 July 2007: HL 151), para 83: ‘The integrity of the legal system depends on it being properly funded. We consider it one of the vital tasks of the Lord Chancellor to ensure that the Courts Service and Legal Aid budgets uphold that integrity’. See also the House of Commons Constitutional Affairs Committee reference to the government’s ‘underestimation of, and insensitivity for, the concerns of the judiciary which changes to the role and responsibilities of the Lord Chancellor may raise’ (HC Constitutional Affairs Committee, The creation of the Ministry of Justice (26 July 2007: HC 466), para 22). 8 Lord Phillips Of Worth Matravers, ‘Judicial Independence’, Commonwealth Law Conference 2007 Nairobi, Kenya, 12 September 2007 (http://www.judiciary.gov.uk/docs/speeches/lcj_kenya_clc_120907.pdf). Emphasis added. 4 Judges should not … become involved in the detail of administration, but if administration of the court system is shared with the executive this must be done in a way that leaves the court service and the judges working as a team. The former must recognise that they have a duty to provide what the latter need in order to achieve the efficient and effective administration of justice. Inaccurate and inflammatory criticism of judicial decisions and the judiciary by senior government ministers9 6. Since the UK’s fifth report, there have been numerous public statements by government ministers criticising the decisions of judges, particularly in cases involving the Human Rights Act 1998 (‘HRA’).10 7. In May 2006, the then-Prime Minister Tony Blair criticised a ruling by a High Court judge concerning the immigration status of nine Afghan hijackers who faced a real risk of ill- treatment contrary to Article 3 of the European Convention on Human Rights (‘ECHR’) if returned to Afghanistan, as an ‘abuse of common sense’.11 The following day, the then- Home Secretary John Reid MP suggested that the judgment was part of a pattern of ‘inexplicable or bizarre’ judicial decisions.12 The Prime Minister then wrote to the Lord Chancellor Lord Falconer QC, seeking a review of ‘inconsistent’ court rulings.13 8. In June 2006, the Home Secretary criticised a sentence given by a Crown Court judge as ‘unduly lenient’, despite the fact that the sentence was consistent with sentencing guidelines established by statute.14 Although the Attorney General later acknowledged that the judge’s decision had been correct in law, the judge and the judiciary in general were subjected to considerable media criticism.15 The Lord Chancellor later conceded that ministers conduct in the case ‘had an impact on undermining confidence in the judiciary’.16 9 See Principle 4 of the UN Basic Principles for the Independence of the Judiciary, n3 above. 10 For further discussion of government attacks on the Human Rights Act, see below under ‘General legal framework within which human rights are protected’. 11 See e.g. BBC, ‘Blair dismay over hijack Afghans’, 10 May 2006. 12 BBC, ‘Government Appeal over Hijackers’, 11 May 2006: ‘When decisions are taken which appear to the general public, it only reinforces the perception that the system is not working to protect or in favour of the vast majority of ordinary decent hard-working citizens in this country’. 13 BBC, ‘Blair ‘to amend human rights law’, 14 May 2006: ‘We will need
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