Schedule 7 declared ‘unjust’ by European Court of Human Rights

 

In February 2019, in the case of Beghal v The United Kingdom, the European Court of Human Rights (ECHR) unanimously declared the powers given to police and immigration officials under Schedule 7 to be unjust. In this case, Sylvie Beghal, a French national of Algerian descent living in the UK, was stopped at the border as she and her children returned from visiting her husband in France. The ECHR determined that the exercise of the Schedule 7 power to detain and question people at ports and airports had violated her human rights, namely the right to respect for her “private and family life” under Article 8 of the European Convention on Human Rights.

There is a patchwork of problematic counter-terrorism provisions within UK legislation which enable racist and Islamophobic conduct. Schedule 7 of the Terrorism Act 2000 is just one example of legislation which is in dire need of immediate address.

Schedule 7 has long been criticised for its role in facilitating the disproportionate and discriminatory targeting of Muslims and members of ethnic minority groups, who make up almost 80% of those detained under Schedule 7, despite constituting just 13% of the population. Indeed, an EHRC report found Pakistani men were 154 times more likely to be stopped at UK ports and airports than white people.

Under Schedule 7, police and immigration officials are given the the invasive power to stop, search, and hold individuals at ports, airports, and international rail stations. Officials can examine their targets and question them for up to 9 hours without formally detaining them, during which time they have no right to a publicly-funded lawyer.

The Schedule 7 powers which enable DNA to be taken from someone who has not been arrested, or even suspected of having committed any offence, is worrying. Only 0.2% of those stopped under Schedule 7 were actually arrested in 2016 (let alone charged or convicted, for which the percentage would be even smaller). Therefore, the power to take the DNA and fingerprints of an individual regardless of outcome, and then store them on the same database as convicted terrorists, undoubtedly means that data on many innocent individuals is being retained.

What makes the Schedule 7 power even more worrying is how the provision doesn’t protect against discrimination. Schedule 7 permits officials to use a wide degree of discretion in exercising this power, as they are not required to have reasonable grounds for suspicion that their targets are involved in terrorism or other criminal activity. In the case of Gillan v The UK, the ECHR found the power to search without suspicion under Section 44 of the Terrorism Act 2000 to be insufficiently certain to protect against arbitrary and discriminatory usage. Therefore, the fact that the significantly more intrusive Schedule 7 powers also don’t require suspicion or reasonable grounds reaffirms how the legislation has the potential to permit officials to unfairly target individuals on ethnic and religious grounds which are informed by personal biases and prejudices – a suggestion supported by the fact that only 0.2% of Schedule 7 stops (in which ethnic minorities are disproportionately represented) lead to arrests or further action.

The ECtHR summed up the problems with Schedule 7 in the Beghal case by stating that the use of the powers were “neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse”, and were therefore not “in accordance with the law”. This is recognition of how Muslims have become securitised citizens subject to discriminatory policies that are contradictory to the democratic governing of a society centred upon human rights and civil liberties, but which have been exceptionalised by security discourses.

Ultimately, the legislation allows far too much room for subjectivity, which often (even if inadvertently) validates discriminatory practices. The use of Schedule 7 highlights the dangers of unduly wide powers, and how they can lead to egregious violations of fundamental human rights.

For these reasons, MEND strongly urges policy makers and political parties to commit to independently reviewing all counter-terrorism legislation enacted since 2000 with a view to curbing the encroachment of counter-terrorism policies on civil liberties. While MEND recognises and supports the need for robust and effective counter-terror legislation, they must (a) strike the right balance between security and civil liberties, and (b) be fairly and consistently applied in a non-discriminatory manner.