The coalition response to terrorism and torture

What has the coalition government done so far?

Very little, but it has promised a great deal.

In July, the new Home Secretary Theresa May MP announced a ‘rapid review’ of counter-terrorism powers. That review was originally due to report in early October but is now expected to be delayed by at least several weeks.

The same month, the new Prime Minister David Cameron wrote to Sir Peter Gibson, a retired Court of Appeal judge and the current serving Intelligence Services Commissioner, to ask him to chair an inquiry into allegations that UK officials were complicit in the torture of detainees in other countries. However, the Inquiry is not due to begin until after ongoing civil and criminal litigation has been resolved. This is unlikely to happen before 2011 at the earliest.

What is the ‘rapid review’ about?

Both the Conservatives and Liberal Democrats were strongly opposed to a number of counter-terrorism measures introduced by the previous government. At the same time, much of the relevant legislation is subject to annual review: for example, the coalition government extended the current 28 day limit by a further 6 months, arguing that it was necessary to have more time to carry out its review. Similarly, control orders are due for annual renewal in March 2011.

The Home Office review involves six counter-terrorism measures: (1) stop and search under section 44 of the Terrorism Act 2000; (2) control orders under the Prevention of Terrorism Act 2005; (3) the current 28 day maximum period of pre-charge detention in terrorism cases; (4) measures aimed at groups promoting hatred; (5) the use of assurances against torture in the context of deportation on national security grounds; and (6) the use of surveillance powers by local authorities under the Regulation of Investigatory Powers Act 2000 (RIPA). In addition, the review is also supposed to inform whether further safeguards can be added to the Terrorist Asset-Freezing etc Bill which is currently before the House of Lords.

The review is being conducted by the Home Office but is reporting to the National Security Council which is part of the Cabinet Office, headed by the Deputy Prime Minister Nick Clegg. In addition, the review is being carried out under the supervision of Lord Macdonald of River Glaven QC, the former Director of Public Prosecutions.

What is likely to happen?

JUSTICE met with Home Office officials in July and submitted an 81-page response to the review in August. Among other things, we argued for the repeal of control orders, lowering the current maximum period of pre-charge detention, and ending the use of assurances against torture.

There is no word on the outcome of the review but there is a real chance that it will recommend lowering the maximum period of pre-charge detention from 28 days to 14 days, which was the previous limit established by section 306 of the Criminal Justice Act 2003. JUSTICE has argued for the limit to return to at least the original 7 day limit established under the Terrorism Act 2000. However, this seems unlikely.

It is also very likely that local authorities will lose their powers to carry out surveillance under RIPA, or at least that those powers will be subject to much more serious restrictions.

The coalition government has already moved to implement the judgment of the European Court of Human Rights in Gillan and Quinton v United Kingdom, by directing police to no longer exercise their powers to carry out pedestrian searches under section 44(2) of the 2000 Act (vehicle searches are still permitted). Further amending legislation seems likely, possibly as part of the forthcoming Freedom Bill.

There is also some hope that the review will recommend the end of control orders, although it is not known whether some alternative measure will be put in its place. In addition to the criticism of control orders as quasi-criminal measures applied on the basis of suspicion alone, and the unfairness of the extensive use of secret evidence they involve, control orders have also been attacked as expensive (legal bills alone have exceeded £8 Million) and ineffective (seven controlees have so far absconded). However, it is thought that some elements within the Home Office and MI5 will resist moves to get rid of control orders.

Further measures to combat groups promoting hatred seem unlikely, especially given that it is already a criminal offence to incite either racial or religious hatred. Similarly, it seems unlikely that there is any scope to make greater use of assurances against torture than is already the case. Most of the countries who were prepared to agree assurances with the UK have already done so.

What about the torture inquiry?

The inquiry seems a long way off. In his letter to Sir Peter on 6 July, David Cameron indicated that it will commence ‘as soon as possible after the end of related criminal processes’, namely the investigation of two members of the intelligence services for possible criminal wrongdoing, and once ‘sufficient progress’ has been made in settling ongoing litigation’, which is a reference to Al Rawi and others v The Security Service and others the civil suit being brought by six former UK detainees in Guantanamo against the British government for alleged complicity in their rendition and subsequent ill-treatment.

Al Rawi is currently ongoing in the High Court and shows no signs of stopping. The government has complained that the public interest immunity disclosure process is extensive and is not likely to be complete before 2013. For this reason it asked the High Court to adopt instead a secret evidence procedure that would have excluded the former detainees and their lawyers from seeing most of the government’s evidence and even the details of its defence. In April, the Court of Appeal rejected the government’s arguments and the disclosure process is now continuing. However, the government has now appealed to the Supreme Court and the matter will be heard on 24-27 January 2011.

How much will we learn from the inquiry?

Perhaps not a lot. The inquiry is being headed by Sir Peter Gibson, a former Court of Appeal judge and the current Intelligence Services Commissioner since 2006. This means that – together with the Intelligence and Security Committee – he has been partly responsible for oversight of the intelligence services for several years. Given that the effectiveness of the existing oversight arrangements is likely to be one of the key issues in the inquiry, this raises concerns that the inquiry may not seen to be sufficiently independent. In early September, JUSTICE and several other UK-based NGOs wrote to Sir Peter to highlight a number of points concerning the format of the inquiry and its likely terms of reference.