Select Committee on Home Affairs First Report



  12. The detention provisions can only be understood against the background to the problem, which the Government is seeking to address.

Obligations under the European convention on human rights

  13. The Joint Committee on Human Rights has conducted a full review of the human rights implications of the Anti-Terrorism, Crime and Security Bill. Therefore, we need only make brief reference to two of the rights protected under the European Convention of Human Rights[9] -- the prohibition of torture (Article 3) and the right to liberty (Article 5).

  14. Article 5 permits the state to interfere with the right to liberty -- but only in the circumstances that are specified in Article(5)(1)(a) to (f). In addition, Article 15 permits a state to derogate from most of its obligations under Article 5 (and other Articles) "in time of war or other public emergency threatening the life of the nation".

  15. Article 3, on the other hand, is an absolute obligation. There are no circumstances which permit a state to subject a person to torture or to inhuman or degrading treatment or punishment and it is not possible to derogate from it under Article 15.

The decision in Chahal v. U.K (1996).

  16. In Chahal v. U.K., the European Court of Human Rights ruled that the obligation under Article 3 is equally absolute in expulsion cases:

  17. The Court also ruled that the arrangements then in place in the UK for reviewing executive decisions to remove people whose presence was deemed not to be conducive to the public good for reasons of national security, relations with another country or for any other political reason, contravened Article 13 of the ECHR.

  18. In response, the Government established, in 1998, the Special Immigration Appeals Commission (SIAC) to hear appeals from immigration and asylum decisions which are based on national security or political grounds.[11] This permits a full review of executive decision-making, including a review of the Secretary of State's findings of fact, by an independent judicial body.[12] SIAC consists of three members appointed by the Lord Chancellor - two are judges and the third a lay member with experience of national security work. The way that SIAC is set up allows for evidence from the intelligence services to be heard in court in private sessions, without the appellant or his lawyers present. During these sessions, the appellant's interests are represented by a special (security vetted) advocate, appointed by the Attorney-General. In that way, sensitive information and sources are not revealed to the appellant.

The intractable problem

  19. The Government has re-iterated its firm commitment to upholding the United Kingdom's obligations under Article 3. We support that commitment. However, we recognise that this presents the Government with a fundamental dilemma. What does it do with a suspected terrorist if it cannot remove him (or extradite him) to another country - because to do so would breach Article 3 - and it cannot prosecute him in this country - because there is insufficient evidence to secure a conviction? This is an intractable problem, with no easy solution. This problem has been exacerbated by the interpretation of Article 3, as developed by the jurisprudence of the European Court of Human Rights.

  20. Whilst we do not, for a moment, suggest that the Government should send people back to countries where they would be at risk of torture or ill-treatment, we do think that the Government should engage in a review with our European partners, with a view to finding some acceptable solution that might avoid the need to exercise a power of indefinite detention. It would be desirable for the Home Secretary, who is accountable to Parliament, to be able to exercise his discretion within the framework of Article 3.

  21. The Minister informed us that:

  22. We welcome this approach and suggest that this provides an appropriate opportunity for proposing a wider review of the problem. We were told by the Minister that:

    "The problem arises when we want to take the action that we are empowered to do at the moment, which is to deport a foreign national.... If ... we cannot deport somebody and exercise those powers, because we cannot deport them to a safe country - ... the Home Secretary has made it clear we would not do that because we would be in breach of Article 3 - we then have two options. This is the dilemma that people who are concerned about these powers have to face themselves. If we cannot exercise our powers to deport somebody who we suspect to be engaged in terrorist activities, we either have to release them into this country to carry on engaging in the behaviour that has caused concern in the first place, or we have to take some measures to curtail those activities pending deportation, and that really is only detention."[14]

The proposed solution

  23. The Government's proposal is to derogate from Article 5 in order to permit detention of these people, pending their removal, i.e., to detain them indefinitely. We understand that removal would only become possible if:

  24. We are concerned at the reported number of foreign nationals, who have been suspected of involvement in terrorism and who are either at liberty in, or have passed through, this country.[16] We asked about the number of people likely to be detained under this new power and were told:

    "Under existing powers to detain people for shorter periods of time when we have suspicions about their behaviour, in the year for which we have figures, which is 2000, there were 39 non-Irish people detained, but 23 of those were in connection with one incident, which was the hi-jack of the Afghan airline at Stansted. Taking those figures into account, we feel that we are talking about a small number of people. It may go into double figures but we are talking about a small number of tens rather than hundreds. That is our view."[17]

  25. The case against a power of indefinite detention was expressed by John Wadham, Director of Liberty:

    "...what seems to be being suggested by the Government and in this Bill is that we can somehow avoid the usual presumption of innocence which will apply to British citizens and that because these people are foreigners we can lock them up for indefinite periods. The reason that the Government can get away with that is because of the procedures which exist in the Immigration Act. We say that the foreigners who are in this country should be treated no differently from British citizens in the context of indefinite detention, in the context of internment, in the context of a presumption of innocence. Otherwise it seems to me that we are suggesting that somehow people who just do not happen to have obtained British citizenship have fundamentally fewer rights than others."[18]

  26. Professor Conor Gearty asked why it was necessary to detain these people:

    "Why can they not bring criminal proceedings under section 56, directing terrorist activities, or incitement to commit terrorist acts abroad? These provisions were very controversial when they were introduced, they were presented precisely to deal with the alleged problem, that there were persons within the jurisdiction on whom you could not fix exact criminal offences, whom you needed to deal with through the criminal process. Those pieces of legislation were achieved. Terrorism is extremely broadly defined. They represented a massive victory for those who argued precisely for the need to act. Now we are being told that even these crimes are not sufficient to underpin prosecutions, that we need to pre-empt these persons before they engage in any conduct within the jurisdiction and effectively intern them."[19]

  27. We reluctantly accept that there may be a small category of persons who are suspected international terrorists who cannot be prosecuted, extradited or deported and therefore will have to be detained.

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:

We were told by the Home Office that:

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.

9   (Cm. 8969). The Human Rights Act 1998 gives further effect to the ECHR in domestic law. Back

10   (1996) 23 E.H.R.R. 413, para.79. Back

11   The Special Immigration Appeals Commission Act 1997. Back

12   Secretary of State for the Home Department v. Rehman [2001] UKHL 47. Back

13   Q174. Back

14   Q146. Back

15   Q158. Back

16   See, e.g., 'War on Terrorism', Independent, 19 October 2001; ' Seven of the 'most wanted' men linked to Britain', Daily Telegraph, 14 October 2001; ''Terror groups' hiding in the heart of Britain', Daily Telegraph 28 September 2001. Back

17   Q151. Back

18   Q24. Back

19   Q43. Back

20   Q178. Back

21   Q178. Back

22   Clause 21(2)(c). Back

23   Q190. Back

24   Q190. Back

25   Clause 22. Removal might be impracticable if there are no available routes to the country, or the person does not have the appropriate travel documentation. Back

26   These figures are derived from David Cesarani and Tony Kushner, The Internment of Aliens in Britain, (Frank Cass, 1993) p.214. Back

27   Q162. Back

28   Q132. Back

29   The 1974 and 1976 Prevention of Terrorism legislation were reviewed by Lord Shackleton (Cmmd. 7328), Lord Jellicoe (Cmmd. 8803). Sir Cyril Phillips conducted reviews in between 1984 and 1986, which was followed by a published report by Viscount Colville in 1987 (Cm..264) . Viscount Colville also carried out a review of the Northern Ireland (Emergency Provisions) Acts 1978 and 1987, which was published in 1990 (Cm. 1115). The Northern Ireland (Emergency Provisions) Act 1991 was reviewed by JJ Rowe Q.C. in 1995 (Cm.2706). In 1996, Lord Lloyd's report into the Inquiry into Legislation on Terrorism was published (Cm.3420). Back

30   Q136. Back

31   Q195. Back

32   Q153. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2001
Prepared 19 November 2001