The provisions in the bill (clauses
21-23)
28. The Bill provides that the power of detention
could only be applied to a person in the UK who is subject to
immigration control (i.e., not British citizens) if the
Home Secretary:
(a) believes their presence in the UK is
a risk to national security and
(b) suspects he or she is an international terrorist.
We were told by the Home Office that:
"There is a whole range of activities
which could be involved here, where the people concerned will
be operating within the UK with comparative freedom of movement
and in that sense, we would be concerned with those whose activities
might not become known to the police, for example, and might therefore
not generate the circumstances in which a criminal charge could
be brought."[20]
For example:
"...[people] concerned in communicating
with other terrorists; in preparing for acts of terrorism, whether
in the UK or further afield; they may be involved in fund raising
or in training or in other activities upon which terrorist organisations
rely in order for their activities to be achieved."[21]
29. "International terrorist" has
been defined broadly to include people who have "links with
a person who is a member of or belongs to an international terrorist
group".[22]
Although the meaning of "links" is not defined in the
Bill, we understand that it is intended to cover international
terrorist networks, such as al-Qaeda, which "function
on the basis of links between individuals in various countries".[23]
The Home Office told us that:
"...that is the danger which the Government
is trying to meet in this Bill by making sure that people who
are operating perhaps across borders, in a very tenuous way but
in a way which might be vital to the support of that terrorist
organisation, are covered just as specifically as those who are
actually members of organisations."[24]
30. The Bill provides that, where a person is
certified as a suspected international terrorist, immigration
action - such as a refusal of leave to enter, or a decision to
remove or deport - could be taken against them, despite the
fact that such action could not - for the time being - result
in removal from the UK. This would only bite if removal was not
possible because, either (a) it would be contrary to the UK's
obligations under an international agreement - e.g., Article
3 of the ECHR - or (b) it would be impractical.[25]
31. The principal purpose of the provision is
to allow such people to be detained under existing immigration
powers, even though there is no immediate prospect of removing
them. At present, the detention powers only apply to people who
are liable to examination or removal, or pending their
deportation.
32. One ground for concern is the quality of
the intelligence information on which detention was based. We
note that in 1991, some 176 Iraqis and other Arabs were detained
during the Gulf war.[26]
We understand that many of those, if not all, were eventually
released without charge and some were subsequently awarded compensation.
33. We understand, however, that these provisions
are intended to be applied only as a last resort. Detention would
not apply in circumstances where the individual has committed
an offence for which there is sufficient evidence to prosecute
them:
- in this country under existing law; or
- in another country, to which they could be extradited.
The Minister told us that;
" There have been lessons learned from
that [i.e., detention during the Gulf War]. We certainly expect
the implementation of these procedures to be robust and, as I
have said, in terms of the numbers we expect, we expect them to
be used in exceptional circumstances. Clearly, in all cases where
that is possible, prosecution is the preferred route of the Government."[27]
34. We are concerned that the power of
detention is exercised only as a last resort, i.e., in
circumstances where it is clearly not possible to proceed with
prosecution, extradition or deportation. The Committee understands
that, in some cases, prosecutions do not proceed because certain
types of intelligence, such as telephone intercepts, cannot be
admitted in court. We believe that within the law enforcement
community there is a variety of views on whether such evidence
should be used in court. We suggest that the Government conduct
a review of the law and procedure relating to the admissibility
of intercept evidence in court, with a view to extending the circumstances
in which such evidence could be admitted.
35. In addition, the Bill contains a number
of important safeguards that are designed to minimise such risks.
These include:
- an appeal to SIAC against a certificate issued
under clause 21 (i.e., certified to be an suspected international
terrorist), within three months from the date on which the certificate
was issued;
- automatic review of certificates issued under
clause in any event -- i.e., regardless of whether
or not an appeal was made. Reviews would be conducted at six-monthly
intervals.
- an appeal to the higher courts on a point of
law against a decision of SIAC in respect of appeals/reviews of
the certificate
- provision for release on bail.
36. The proposed safeguards about the
process for individual cases are acceptable in the circumstances.
Given the previous experience with similar powers of detention,
we shall take a close interest in the way this power is implemented.
37. Clause 28 provides the additional safeguard
of a time-limit on the duration of the certification and detention
provisions in clauses 21 to 23, with the effect that these clauses
will expire after a period of 15 months, unless renewed (or revived)
for periods not exceeding one year, by statutory instrument, approved
by affirmative resolution.
38. It has been a regular feature of anti-terrorism
legislation since 1974 that their temporary nature is reflected
by the need for annual parliamentary renewal. This continued from
1974 until the legislation was put on a permanent basis in the
Terrorism Act 2000. Professor Gearty told us that:
".... one of the most important elements
to this might be to put some kind of time limit on it. The reason
for that would be that it would keep the issue alive and there
would be a need for reports and it would maintain the sense of
the urgency and the importance and one hopes the temporary nature
of the crisis that provoked these powers. We see it as a fundamental
importance from the point of view of principle to maintain the
idea that this is a deviation from the norm."[28]
39. The operation of the terrorism legislation
in previous years was also the subject of a non-statutory review
by an independent lawyer.[29]
Professor Gearty suggested to us that any provision for annual
renewal could be improved if it was "fed by a report from
an independent scrutineer which the whole community can understand".[30]
40. We welcome the provisions that the
power of detention will only continue in force for 15 months and
then will require annual renewal by Parliament for one year. We
recommend that such renewal should be based on an annual report
by an independent commissioner.
41. Unless the Bill provided for a final expiry
date - or "sunset" provision - beyond which no further
renewal could be made, it would be possible for the provisions
to continue in force for many years, or even decades. We note
that the Prevention of Terrorism (Temporary Provisions) Act 1984
contained, in addition to the provision for annual review, a final
long stop after five years. Section 17(3) provided:
"This Act shall cease to have effect at
the end of the period of five years beginning with the date on
which it was passed."
42. When we put this suggestion to the Minister,
her response was:
"...I do not think we can have an expiry
date because we cannot predict with certainty a date in the future
when this power should fall and when the circumstances will change.
But what we have provided for is a power for Parliament to look
at the circumstances afresh and to decide whether the power should
continue or not continue. That seems to me to be the best way
to meet the situation that we are in." [31]
43. This measure can only be described
as "temporary"[32]
if it will expire after a set number of years - subject to Parliament
passing new primary legislation. We recommend that a "sunset"
provision - such as that contained in the Prevention of Terrorism
Act 1984 - should apply to the immigration and asylum provisions
in part 4 of the Bill after five years. Any revival or continuance
of the detention and other powers would then depend on the full
parliamentary consideration given to a Bill and not just the 90
minute debate in a standing committee required for an annual renewal
order.
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