The Newton Report & Part 4
of the Anti-terrorism Crime and Security Act 2001
18. The Committee of Privy Counsellors was chaired
by Rt Hon Lord Newton of Braintree.[8]
In its December 2003 report, the Newton Committee stated that
it was so concerned about the speed with which the Act had been
passed and the lack of coherence between the Act and other legislation
in related areas that it designated the whole Act for the purpose
of section 123. The Committee stressed that this was to enable
Parliament to review the report and the Act as a whole.
19. The Newton Committee found a number of problems
presented by Part 4. In some ways the powers, it felt, were insufficient
to meet the threat of international terrorism. On the other hand,
it concluded that the risks of injustice inherent in the Act were
unnecessary and indefensible. The Committee believed the situation
had arisen because Part 4 had its origins in SIAC's functioning
and,
is an adaptation of existing immigration and
asylum legislation, rather than being designed expressly for the
purpose of meeting the threat from international terrorism.[9]
20. The Newton Committee considered that Part 4 was
ineffective because it failed to deal with threats from British
nationals with similar terrorist links, or with anyone in the
UK with links to other foreign terrorist causes, noting that "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". But it also criticised
the absence of any charges, and of any opportunity for the appellants
to refute evidence against them. The danger of miscarriages of
justice was compounded by the low standard of proof (reasonable
belief and suspicion) in SIAC hearings, and the fact that the
vast majority of each case was 'closed'. The Committee "regretted"
that the UK had found it necessary to derogate from the European
Convention on Human Rights, especially because other countries
facing similar threats had not done so, and there was no evidence
that they had disregarded their international obligations. Some
of these countries had reached understandings with destination
countries, enabling them to deport suspected terrorists.
21. The Committee was also sceptical about the policy
of deportation: "seeking to deport terrorist suspects does
not seem to us to be a satisfactory response, given the risk of
exporting terrorism". Furthermore, there was "understandable
disquiet among some parts of the Muslim population", and
this was likely to erode public acceptance. Practical difficulties
of the arrangements identified by the Newton Committee included
the length of the process (two years before determination of appeals),
and the necessity for fresh security-cleared Special Advocates
for each appeal. It also found that alternatives had not been
adequately pursued; and recommended that,
Part 4 powers which allow foreign nationals to
be detained potentially indefinitely should be replaced as a matter
of urgency. New legislation should: (a) deal with all terrorism,
whatever its origin or the nationality of its suspected perpetrators;
and (b) not require a derogation from the European Convention
on Human Rights.[10]
22. The Joint Committee on Human Rights, in its report
of July 2004, agreed with many of the points made by the Newton
Committee and concurred with the central conclusion that Part
4 should be replaced with legislation dealing with all terrorism,
and not requiring a derogation from the Convention. On the derogation,
the Joint Committee on Human Rights concluded that:
long-term derogations from human rights obligations
have a corrosive effect on the culture of respect for human rights
on which the effective protection of all rights depends. They
undermine the State's commitment to human rights and the rule
of law, and diminish the State's standing in the international
community […] alternative ways of dealing with the threat
from international terrorism can be found which do not involve
the UK open-endedly derogating from its human rights obligations.[11]
23. Prosecution was the Newton Committee's preferred
approach. It expressed the hope that a system could be devised
which met the needs of making intelligence available for prosecution,
while not compromising the collection and use of intercepted communications
for intelligence purposes. The Newton Committee was also interested
in adopting an investigative approach to the difficulties of making
evidence known to the accused without damaging intelligence sources
and techniques. It suggested that making,
a security-cleared judge responsible for assembling
a fair, answerable case, based on a full range of both sensitive
and non-sensitive material […] could be well-suited for use
in this limited context.[12]
Where prosecution was not possible the Committee
proposed a range of other measures, including: surveillance; movement
restrictions; and restrictions on internet and banking access.
24. In his response to the Newton Report, the Home
Secretary indicated that he was not convinced that the current
threat left the Government with any option but to continue to
use the powers under Part 4 of the Anti-terrorism, Crime and
Security Act 2001. He noted in particular, that the powers
were limited to the terrorist threat posed by Al Qaeda and the
network of terrorist groups associated with it, stating that:
The nature of that threat means that it is right
to target those powers at foreign nationals. Because of that the
specific powers we introduced are only used when an individual
cannot be prosecuted and cannot be removed from the UK because
of our international obligations...These were not powers I assumed
lightly. I have never pretended that they are ideal, but I firmly
believe that they are currently the best and most workable way
to address the particular problems we face. I believe that I would
be failing in my duty of public protection if the Part 4 powers
were removed from the armoury of measures available to protect
the United Kingdom from specific terrorist threats. Ten of the
detainees have already had their cases reviewed by the independent
Special Immigration Appeals Commission (SIAC) and in each case
my judgement in certifying them has been upheld. Further, the
lawfulness of derogation from part of Article 5 of the ECHR was
upheld before the Act was implemented by the Court of Appeal,
which ruled that the detention powers in the Act are a proportionate
response to the public emergency threatening the United Kingdom.[13]
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