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27 to 28 Days 6 3 Total 11 8 CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 893-iii HOUSE OF LORDS HOUSE OF COMMONS ORAL EVIDENCE TAKEN BEFORE THE JOINT COMMITTEE ON THE DRAFT DETENTION OF TERRORIST SUSPECTS (TEMPORARY EXTENSION) BILLS MONDAY 4 APRIL 2011 RT HON JACK STRAW MP, RT HON DAVID BLUNKETT MP, RT HON CHARLES CLARKE and LORD GOLDSMITH QC PROFESSOR CLIVE WALKER and PROFESSOR CONOR GEARTY Evidence heard in Public Questions 138 - 194 1 Memorandum by Professor Conor Gearty, London School of Economics (DTS 2) Autobiographical background 1. I have been a professor of human rights law at LSE, and before that King’s College London, since 1995. Between 2002 and 2009 I was director of the centre for the study of human rights at LSE. Apart from my work on human rights, I have been writing on terrorism and terrorism law since the early 1990s, with my first book on the subject (Terror Faber and Faber) having been published in 1991. In 1995 a colleague and I completed a study of the then UK terrorism laws for the then opposition Labour Party (Terrorism and the rule of law), and I advised the Party on terrorism law and related matters for a number of years during the 1990s. More recently I have been specialist adviser to the Home Affairs Select Committee during the course of its work on what became its report into Terrorism and Community Relations (HC 165 of 2005). The framing of UK emergency laws 2. As a matter of orthodox constitutional law, it is clear that Parliament can do whatever its members collectively desire and legislate into effect so far as the protection of national security is concerned. In practice such power is circumscribed. There are international and regional frameworks of law to which the UK has committed itself and which constrain the conduct of state actors: the UN human rights treaties to which the UK is a party, the European Union and the Council of Europe (with its European Convention on Human Rights (‘the ECHR’)) are three such examples. There are also various constitutional principles which though not legislated into formal, supra-legislative existence traditionally inform the actions of all branches of government in the state. The principle of separation of powers is one such example, with respect for the rule of law and the protection of fundamental human rights being two others. 3. Any legislation enacted under the rubric of emergency law should not depart from these practical circumscriptions on Parliament’s sovereignty. It is neither desirable nor (more to the point) is it necessary to do so - all proper responses to emergency situations can be accommodated within traditional principle and within the current framework of international and regional law. A human rights approach to emergency law 4. The primary principle relevant to the configuration of emergency laws in the context of a terrorist attack or attacks is that of respect for human rights. The principle of respect for human rights embraces within it the commitments to international and regional human rights that the UK has already made as a matter of law and encompasses also a strong commitment to the rule of law and to separation of powers. Even more pertinently, the UK parliament has already committed itself to adhere to a human rights approach to legislation: the Human Rights Act 1998 (‘the HRA’), a law that came fully into force in October 2000, and which has not been repealed. 2 5. Any legislation designed to deal (either before or after the fact) with the consequences of a terrorist emergency should respect the principles and provisions of human rights law, and in particular the rights set out in the ECHR, particularly insofar as such rights have been incorporated into UK law in the HRA. 6. It must be immediately stressed that such an approach does not denude the state of the power of defensive action; it merely requires that its responses be ordered in a coherent and principled fashion. It is clear that the state has a positive obligation to act to protect the rights of those within its jurisdiction, including each person’s right to life and to security of the person: articles 2 and 5 of the ECHR. The state discharges this obligation in part by the creation of systems for the prevention and punishment of wrongdoing that violates these rights, achieved through establishment of a system of criminal law and the empowerment of law enforcement officers (principally the police) that goes with it. Such laws must themselves be administered in a way that does not violate rights: articles 5, 6, 8 and others. Since human rights law already represents in itself a balance between rights and security, it is not right to balance that law against considerations of national security which are external to it. 7. Most rights in the ECHR recognize that they may not apply where the necessities of democratic society demand. But the possibility of emergency law is also anticipated. Under ECHR article 15, a version of which appears in the HRA, the state may set aside certain (but not all) rights where there is a ‘public emergency threatening the life of the nation’. The measures being proposed under this head must additionally be necessary and proportionate to the goal at which they are aimed. 8. It is clear therefore that under human rights law the need for emergency laws should only arise where it can be shown that there is a ‘public emergency threatening the life of the nation’ and that the laws being proposed are strictly required to meet the exigencies of such an emergency. These evaluative criteria should inform Parliament’s scrutiny of any legislation that is placed before it. 9. As an assistance to parliamentary debate and in order better to guide discussion, any such legislation should contain within it a requirement that it be accompanied by a certificate jointly signed by the relevant law officers for each jurisdiction to which it applies (in England and Wales for example the Attorney General and the DPP) stating that in the opinion of such officers there is indeed such an emergency and that the powers being sought by the government in the legislative proposals being put before Parliament are strictly required by the exigencies of the situation with which the country (or a part thereof) is confronted. 10. I do not think that it is possible or desirable to anticipate in advance the shape of any such public emergency. That said I imagine that it will almost certainly refer to events that have happened rather than those that are said to be about to happen, and that the events will need to be truly catastrophic in nature to trigger the law officers’ certificate. This is a field of law which has been historically dogged by what might be summarized without glibness as a combination of the ‘politics of the last atrocity’ and the ‘politics of the next atrocity’: either we need the law because something terrible 3 has happened or because it might happen: a good example of the flaws inherent in such an approach to law making is the rather wild speculation that has already begun about the supposed threat posed by the Olympics, speculation that has drawn strength from past tragedy (at the Munich Olympics in 1972) as well as anticipated future anxiety. We need to be especially careful about assertions about the need to embrace emergency law on the basis of events that have yet to occur or on the basis of serious attacks that have occurred but which do not necessarily prove the need for new laws simply by virtue of the fact that they have occurred. There is a temptation here to take a short-cut to restrictive laws that, in the past at any rate, the executive has sometimes found hard to resist. (Examples of pre-emptive laws would include those passed to counter anticipated IRA-related violence in 1939 and in 1996. Unnecessary reactive laws, responding to rather than anticipating an atrocity, would include many of the provisions in terrorism laws passed in 1974, 1998, 2001 and 2006.) 11. The requirement that parliament debate any emergency laws put before it by reference not just to whether there is an emergency grave enough to threaten ‘the life of the nation’ but also to whether the proposals before it are necessary, rational and proportionate towards their intended aims is a further safeguard against this politics of the last (or the next) atrocity. The reality in many situations of terrorist attack (anticipated or actual) is that the executive will want to deploy law in a way which is about more than simple law enforcement: it might want to calm public nerves, or release public anger, or demonstrate that it is capable of acting. It might be tempted to introduce laws that in ordinary times it might have had difficulty getting through either House (or both). The requirement to link proposed laws to law enforcement outcomes, to require Parliament to be persuaded of the necessity and the unavailability of alternatives is an important safeguard for civil liberties: it focuses legislators on the key issues and not on extraneous ones, however important these might seem at the time. The current proposed legislation 12. The draft Bills before this Joint Committee are creatures of what an earlier witness has called ‘coalition politics’ rather than of reasoned contingency-planning. There is no logic to them. Either what they are is an effort to retain 28 day detention by the back-door of a legislative process that will be too readily invoked and then too regularly renewed (a frequent occurrence in the history of anti-terrorism law in this country) or they are a genuine effort to manage a situation of future catastrophe.
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