The Future of Counter-terrorism and Human Rights - Justice

The rationality of deportation assumes that the removal of the suspect from the UK
will sufficiently disrupt the suspect’s activities to neutralise the threat. In some cases,
this may be correct. It seems increasingly less so, however, especially given the
nature of modern telecommunications. If ‘F’ was indeed planning an attack against
the UK, for instance, of sufficient seriousness to warrant his indefinite detention, it
seems difficult to see how his being at liberty in France is enough to disrupt that
threat.
Of course, the effectiveness of deportation as a counter-terrorism measure is
ultimately predicated on the suspect in question being a foreign national, and
therefore subject to immigration control. 70 The use of immigration measures, then,
does nothing to address the core problem identified by the House of Lords in the
Belmarsh judgment and so starkly underlined by the subsequent events of 7/7: the
fact that the terrorist threat to the UK comes as much from people who are born
here as from abroad. 71 In truth, the absolute prohibition against returning a suspect
to a country where he or she faces being tortured is only a difficulty when viewed
through the narrow lens of immigration control. The obvious and most enduring
solution to the problem of foreign terror suspects is not removal but prosecution.
The gap between suspicion and proof
The most persistent justification for the most exceptional counter-terrorism
measures since 9/11 has been the evidential problems in prosecuting suspected
terrorists. Indefinite detention without charge in 2001, the introduction of control
orders in 2005, and the extension of the maximum period of pre-charge detention to
28 days in 2006 have each been justified by reference to the same core issue – the
gap between reasonable suspicion, on the one hand, and admissible evidence
capable of supporting criminal charges on the other.
In fact there is not one gap but two. The first is a gap between what government
ministers have reasonable grounds for suspecting, which may form the basis for their
exercise of a wide range of civil powers including deportation or the making of a
control order, and the kind of evidence required for a criminal prosecution. The
70 The power of the Home Secretary to deprive an individual of UK nationality, and hence render him liable for
deportation on national security grounds, was introduced in 2002 but significantly expanded by s56 Immigration
Asylum and Nationality Act 2006. Whereas previously the Secretary of State could only make an order depriving a
person of citizenship where he was satisfied that the ‘person has done anything seriously prejudicial to the vital
interests’ of the UK (s40(2) British Nationality Act 1981 as amended by s4 of the 2002 Act), s56 provides that he may
order deprivation of citizenship where he is satisfied that ‘deprivation is conducive to the public good’, ie the same
test that he currently applies exercising his powers to exclude or deport non-nationals from the UK.
71 The Newton Committee in 2003 similarly doubted the government’s contention that the threat to the UK came
primarily from foreign nationals, see Newton Report, n68 above, para 193: ‘The British suicide bombers who
attacked Tel Aviv in May 2003, Richard Reid (“the Shoe Bomber”), and recent arrests suggest that the threat from UK
citizens is real. Almost 30% of Terrorism Act 2000 suspects in the past year have been British. We have been told
that, of the people of interest to the authorities because of their suspected involvement in international terrorism,
nearly half are British nationals’.
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The Future of Counter-terrorism and Human Rights
A JUSTICE Futures paper