UK Liberty

Libyans win appeal against deportation despite MOU with Libya

Posted in law and order by ukliberty on April 30, 2007

A Memorandum of Understanding (MOU) in this context is an agreement between the UK and the likes of Libya, Egypt, Jordan, Lebanon and so on, consisting of a number of assurances regarding persons deported to that country.

These MOUs were born from the destruction by the Law Lords of Part 4 of the Anti-terrorism, Crime and Security Act 2001. They are part of a “twin-track” Government response – the other track being “control orders” (the Prevention of Terrorism Act 2005).

As an example, the MOU with Libya can be found in Appendix 1 of the judgement.

The most relevant assurances in the context of this particular case are nos. 3 and 8:

3. If arrested, detained or imprisoned following his deportation, the deported person will be afforded adequate accommodation, nourishment and medical treatment, and will be treated in a humane and proper manner, in accordance with internationally accepted standards.

8. If the deported person is charged with an offence he will receive a fair and public hearing without undue delay by a competent, independent and impartial civilian court established by the law. The person will be allowed adequate time and facilities to prepare his defence, and will be permitted to examine or have examined the witnesses against him and to call and have examined witnesses on his behalf. He will be allowed to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

Notice there is no mention of torture, but rather treatment of “a humane and proper manner”. I suspect this is a matter of diplomacy!

With that in mind, here is the BBC:

Two Libyan terror suspects have won an appeal against deportation from the UK in a major defeat for the government.

The men, known only as DD and AS, argued they could be jailed and tortured if sent home, despite a special deal between the countries.

But in the first test of the case, the Special Immigration Appeals Commission said the men could not be sent back.

The government said it was “very disappointed” by the defeat and would immediately appeal the ruling.

Under international human rights law, the UK does not

– well, it may not, I do not know if it does

deport people to regimes where they may face persecution or torture.

But in October 2005, the government signed an historic deal with Libya, under which Colonel Gaddafi’s government pledged not to mistreat anyone deported to Tripoli from the UK.

The judgement has been posted. It is a detailed (long!) and interesting read.

Here is the decision:

428. All the conclusions which we have reached reflect and are supported, at times strongly so, by the closed evidence. Although we accept that the MOU and other assurances have been given in good faith by Libya, and that there is no probable risk of a breach of Article 3 ECHR

This of course is the “Prohibition against torture: No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

Notice that it is absolute – unlike the other Articles there are no qualifications. This is important.

were the Appellants to be returned, there remains a real risk that that could happen. That is because there is too much scope for changes to happen, for things to go wrong, and too little scope for a breach of Article 3 to be deterred or for acts which might lead to a breach of Article 3 to be remedied in time, essentially through effective monitoring. There is also a real risk that the trial of the Appellants would amount to a complete denial of a fair trial. We do not exclude the possibility that the SSHD’s case for their deportation could be strengthened over time.

429. We reject the claim that removal would breach the Refugee Convention. We find that DD is excluded from the Refugee Convention.

SIAC decided he was a threat to national security. If you are a threat to national security you aren’t covered by the Refugee Convention.

But for DD’s exclusion from the Refugee Convention, the SSHD would be obliged to give effect to the Adjudicator’s decision that he was a refugee, since he cannot be safely returned to Libya, and Article 33(2) of the Refugee Convention, which would permit his removal, cannot be applied because of the ECHR.

430. We have given this decision anxious consideration in view of the risks which the Appellants could face were they returned, and those which the UK, and individuals who can legitimately look to it for the protection of their human rights, would face if they were not. We must judge that matter, at least in relation to Article 3 ECHR, by considering only the risks which the Appellants could face on return, no matter how grave and violent the risks which, having chosen to come here, they pose to the UK, its interests abroad, and its wider interests. Those interests at risk include fundamental human rights.

431. The decision of the ECtHR in Chahal , (1997) 23 EHRR 413 in 1996 provides the framework for that decision. It clearly requires us to consider matters in that way, however slight its reasoning or negligible its response to the substantial minority dissent on the problems posed by a direct threat comparable to that arising here to the interests of the country seeking removal, and on the protection to the human rights of others which the deportation of the Appellants would afford. That decision is part of its established jurisprudence, and in reality we are bound by it.

432. This outcome is not a consequence of the enactment of the Human Rights Act in 1998. The UK was party to the ECHR, the judicial interpretation or extension of which was revealed in Chahal, long before that decision, and the UK would have been obliged in any event to give effect to that decision as part of the established jurisprudence of the Strasbourg Court.

433. For the reasons which we have given relating to Article 3 ECHR, these appeals are allowed.

In July last year the Government announced that it was going to intervene in a Dutch case that would have implications for this “established jurispridence” following Chahal. I do not know how the outcome (if there is one yet).

Home Secretary John Reid said of Chahal that it meant

the United Kingdom Government could not consider the protection of the public as a balancing factor when arguing the case for the deportation of a dangerous person.

On the other hand he and the Government accept that Article 3 is an absolute prohibition on torture.

I wonder how Reid can reconcile this absolute with any sort of “balancing factor”!

As the JCHR said some time ago,

In our view, it follows from the Government’s acceptance of the absolute nature of the torture prohibition that considerations of national security cannot be balanced against the risk of torture, because that presupposes returning somebody to a risk of torture because national security trumps their right not to be tortured.

By the way, Prime Minister Tony Blair said of similar assurances our diplomats were trying to get from Egypt that

This is a bit much. Why do we need all these things?

Indeed, why should we be assured that, for example, the deportee “shall receive no ill treatment whilst in detention”, or that “they shall receive a fair and public hearing by an independent and impartial judiciary”.

Freedom from Scrutiny Bill deferred to 18 May

Posted in freedom of information by ukliberty on April 30, 2007

A thoughtful article on the moral consequences of surveillance

Posted in privacy, surveillance society by ukliberty on April 25, 2007

The ARCH blog comments on the Independent article (mentioned on this blog in a different context):

[research] revealed that ‘wrong’ simply meant ’something for which your parents or teacher punish you’, without any understanding of why that might happen, or of consequences or moral obligations….

There’s a lot of difference, though, between having a mature, deeply-rooted, moral sense of wrongdoing, or on the other hand obeying ‘rules’ because the consequences are unpleasant. The growth in surveillance risks making moral infants of us all and creating a society where the only crime is getting caught.

An Englishman’s home is no longer his castle

Posted in accountability, privacy, rule of law, state-citizen relationship by ukliberty on April 25, 2007

The Times on how many ways the State can enter your home:

In the past few decades the number of new powers of entry becoming law has increased from fewer than ten in the 1950s to more than 60 in the 1990s. The laws are often vague, providing sweeping power to officials and little protection for private citizens.

Today we have no way of knowing the circumstances in which our home may be entered without consent, and what powers officials have. Force can be used in exercising almost all the powers. The slightest questioning of an official could be deemed as obstruction and result in a fine of up to several thousand pounds or even imprisonment.

Of course, the State must have a right to forcefully enter someone’s house in emergencies where life and limb are at stake. But the problem is that most of these powers do not deal with such emergencies.

Read the whole article, and the report (112 page, 382Kb PDF) that inspired it, entitled “Crossing the Threshold: 266 ways the State can enter your home”.

A quote:

The idea that an Englishman’s home is his castle was famously given early expression in a different context by Sir Edward Coke, first Lord Chief Justice and framer of the Petition of Right (1628), in The First Part of the Institutes of the Laws of England of the same year.

It was understood then that to cross the threshold of someone’s property is to move from a public to a private world, a world in which, broadly, different social conventions, different moral obligations and different legal standards apply.

Of course, the state has important reserved rights to enter homes in the public interest, rights that have expanded over time by democratic process, here as in other countries.

But over the following three centuries it remained true in Britain that the home was enshrined by law and tradition as a zone free from state interference – somewhere to drop one’s guard, to relax and to enjoy private family life.


  • Under English law, the citizen’s home has traditionally been regarded as a privileged space. The courts have insisted that servants of the state cannot enter a private home without the occupier’s permission unless a specific law authorises them to do so.
  • Since the middle of the 20th century, the number of such legal provisions – powers of entry – has grown enormously, mirroring the expansion of the role of the state. There are now 266 powers allowing officials to enter a private home as of right.

He identifies a decade-upon-decade increase.

  • A number of these powers originate with European Union directives and regulations, rather than with an Act of Parliament passed by the UK’s elected legislators.

He later documents 12 such powers.

  • As a result of the proliferation and variety of entry powers, a citizen cannot realistically be aware of the circumstances in which his home may be entered by state officials without his consent, or what rights he has in such circumstances.

This seems to me an erosion of the rule of law, in the sense that “complicance must be possible”.

After all, how can one comply with the law, except by accident, if one can’t know the law?

  • Force can be used in the exercise of almost all these powers. In part this is due to its specific authorisation by law; in part to the courts’ readiness to imply a right to use force on grounds of necessity.
  • In many cases, discretion as to what is considered as reasonable behaviour in exercising an entry power is left to the judgement of those wielding the entry power.

I would be surprised if the courts could not test what was “reasonable” and, if they found it was unreasonable, could not apply a remedy.

  • Many powers are drafted so broadly that the citizen has little or no protection if officials behave officiously or vindictively. Some carry draconian penalties for obstruction, including heavy fines and prison sentences of up to two years.
  • Record-keeping by government agencies on how they use these powers is highly variable and sometimes seriously inadequate. For example, requests made under the Freedom of Information Act show that Her Majesty’s Revenue and Customs keeps no regular record of the number of occasions on which its officers use the Writ of Assistance (one of the most intrusive and unregulated entry powers enjoyed by any state official).

Now that in particular seems pretty dreadful. As the author explains, the police are obliged to keep records under PACE. So why does the HMRC (and others) not have a similar obligation?


  • Entry powers are in serious need of reform. A new Act of Parliament should harmonise the procedural provisions of all existing entry powers and protect the citizen by making accountability and transparency paramount.

And making it easier for the citizen to be aware of the powers. New legislation authorising entry powers would refer to (say) section 4 of the Entry Powers Act.

  • Officials should always seek permission to enter a home if possible, even when they have a power to enter without it. A reasonable time for entry should be specified.
  • With the exception of the emergency services, state officials should always have to get a warrant from a magistrate before they can force entry to a private home. The magistrate should carefully scrutinise their case and refuse a warrant where it is unnecessary.
  • The exercise of entry powers should be thoroughly documented, and statistics on their use made public. This will put pressure on officials to use them in a reasonable and proportionate manner.

It seems ridiculous that this isn’t already the case.
The state’s behaviour in the case of Harriet the cow seems ridiculous:

The family had always resisted the slaughter of Harriet by legitimate, legal means such as appealing to the courts and contacting their MP. Yet there was no suggestion that they would assault DEFRA inspectors acting in pursuance of their duties. So why did the Department feel it necessary to send 12 police officers?

And 10 officials.

Nobody alleged that Harriet would be spirited away, so why did the team arrive secretly, early in the morning? While these concerns relate to the decisions taken by individual inspectors and their managers, a more significant issue is that the powers of state officials in this area permit just this sort of behaviour.

Finally, the author provides a very interesting quote from AJP Taylor, writing in 1965 that:

Until August 1914 a sensible, law-abiding Englishman could pass through life and hardly notice the existence of the state, beyond the post office and the policeman. He could live where he liked and as he liked. He had no official number or identity card. He could travel abroad or leave his country for ever without a passport or any sort of official permission. He could exchange his money for any other currency without restriction or limit. He could buy goods from any country in the world on the same terms as he bought goods at home.

Compare and contrast to the situation today.

By the way, I hope your kids have a licence for early years childminding if they plan on doing any…

No, really?

Posted in politicians on liberty by ukliberty on April 25, 2007

The government “cannot guarantee 100% success” in its fight against terrorism, the home secretary says.

– the BBC.