Select Committee on Constitutional Affairs Seventh Report

2  Background to SIAC and the Prevention of Terrorism Act 2005

5. The Special Immigration Appeals Commission (SIAC) was established by the Special Immigration Appeals Commission Act 1997 following a number of immigration appeal cases (notably Chahal and Loutchansky) which called into question the compatibility of the existing Home Office 'Three Wise Men' panel system with the requirements of the European Convention on Human Rights and EC Directive 64/221.[3] This system was used where the Home Secretary acted under immigration powers to deport aliens on security grounds involving classified material. The Act includes provisions for use of Special Advocates (security-cleared lawyers) in SIAC hearings, who are appointed to represent those appearing before the Commission (a superior court of record presided over by a High Court Judge assisted by two other members) in cases where closed (classified) material is involved.

6. In the aftermath of the terrorist attacks on the USA on 11 September 2001, the then Home Secretary, the Rt Hon David Blunkett MP, announced (in October 2001) plans to detain indefinitely those foreign nationals who were regarded as a threat to national security and no longer recognised as refugees, but who could not be returned to their own country because they might be at risk of torture, inhuman and degrading treatment, or death. He stated that:

    it seems to us that when a third safe country cannot be found, holding such people—with proper rights of appeal and the opportunity for a return to their case—is preferable to sending them back to certain death when their guilt has not been ascertained.[4]

7. Mr Blunkett said that he did not envisage withdrawing from the European Convention on Human Rights, although he expected to use Article 15 of the Convention (national emergency threatening the life of the nation) to derogate from some aspects of Article 5 (the right to liberty) in respect of the provisions. This derogation followed under the Human Rights Act 1998 (Designated Derogation) Order 2001 on 11 November 2001.

The Anti-terrorism Crime and Security Bill

8. The Anti-terrorism, Crime and Security Bill was published shortly after the Home Secretary's statement, and given its first reading on 12 November 2001. Both the Home Affairs Committee and the Joint Committee on Human Rights (JCHR) published Reports on the Bill.

9. The Home Affairs Committee recommended 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".[5] It made a number of other recommendations, including 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", thereby making prosecutions possible. Other recommendations related to safeguards, including the need for a review of the legislation as it proceeded, and sunset provisions. The Committee "reluctantly" accepted the need for the proposed provisions in the context of the times.

10. The Joint Committee on Human Rights signalled concern about the proposed derogation, commenting that:

    even if it is accepted that there is such an emergency, the lack of safeguards built into the Bill, particularly in relation to detention powers, causes us to doubt whether the measures in the Bill can be said to be strictly required by the exigencies of the situation.[6]

The Joint Committee on Human Rights drew attention to the dangers of incorporating these provisions within asylum and immigration law, indicating that there might be a risk of discrimination on grounds of nationality. It also expressed reservations about the lack of safeguards, notably that judicial review and habeas corpus were to be excluded in favour of hearings before SIAC, where applicants would be represented by Special Advocates who would not be able to disclose 'closed' material to them. On appeal SIAC considers whether or not there are reasonable grounds for the Home Secretary's belief or suspicion. There is an 'open' element, involving material that Home Secretary is prepared to disclose; and a 'closed' element involving material that he is not prepared so to do.

The Anti-terrorism Crime and Security Act 2001

11. The Anti-terrorism, Crime and Security Bill received Royal Assent on 14 December 2001, as the Anti-terrorism, Crime and Security Act 2001. Part 4 of the Act is devoted to suspected international terrorists and operates within the context of immigration and asylum law. Section 21 allows for the certification by the Home Secretary of such persons, if he reasonably believes them to be a risk to national security because they have "been concerned in the commission, preparation or instigation of acts of international terrorism," belong to international terrorist groups, or have "links" with such groups. Section 22 deals with deportation and removal; and Section 23 authorises detention in circumstances where removal or departure is prevented either by law, or by a practical consideration. Sections 21-23 are at the heart of the controversy which surrounded the Act.

12. Suspects could be released on bail, on appeal to SIAC against certification. SIAC was obliged to hold reviews of certificates after six months, with further reviews every three months. If there were "no reasonable grounds for belief or suspicion" under Section 21, SIAC had to cancel the certificate.

13. The Act also obliged the Home Secretary to appoint someone to review the operations of Sections 21-23 (Lord Carlile of Berriew QC was subsequently appointed). Under Section 30 of the Act, SIAC has exclusive jurisdiction in derogation matters. The legal challenge against detention, which was the subject of a recent House of Lords judgment (16 December 2004), was brought under this section.[7]

14. In attempting to respond to criticisms of a lack of safeguards, the Act also provided for the appointment of a committee of at least seven Privy Counsellors to review the whole of the Act within two years—the Newton Committee. Its report, considered below, was published on 18 December 2003. The Act allowed the Privy Counsellors to specify that any provision of the Act should cease to have effect six months from the day on which the Committee's report was laid before Parliament, unless the Report had first been debated by each House.

Litigation and Review

15. The Anti-terrorism, Crime and Security Act 2001—with an emphasis on Part 4—has been reviewed repeatedly by:

16. Litigation proceeded in tandem with the production of these reports: a SIAC judgment that the detention of non-British nationals was discriminatory was delivered on 30 July 2002, which led to a Court of Appeal decision on 25 October 2002, and eventually to the House of Lords judgment of 16 December 2004, referred to in paragraph 13 above.

17. The Newton Report and the most recent Report of the Joint Committee on Human Rights are the most substantial and detailed analyses. They are referred to at some length by Lord Bingham (one of the Law Lords who considered the above case) in his judgment, and clearly influenced the thinking of most of the Law Lords. Together with the Lords judgment they are the most significant documents in any consideration of the legislation so far.

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]

3   We discuss the background to the establishment to SIAC in detail below in Sections 3 and 4 Back

4   HC Deb, 15 October 2001, cols 927-28 Back

5   Home Affairs Committee, The Anti-terrorism, Crime and Security Bill 2001, First Report of Session 2001-02, HC 351, para 20 Back

6   Joint Committee on Human Rights, Anti-terrorism, Crime and Security Bill, Second Report of Session 2001-02, HC 372, para 30 Back

7   A and others v Secretary of State for the Home Department [2004] UK HL 56. See also paras 16, 17, 27 and 66 Back

8   The Deputy Chairman was Rt Hon Alan Beith MP, the Chairman of this Committee Back

9   Privy Counsellor Review Committee, Anti-terrorism, Crime and Security Act 2001 Review, HC 100 (2003-04), para 186. Also called the 'Newton Report' Back

10   ibid, paras 200-03 Back

11   Joint Committee on Human Rights, Review of Counter-terrorism Powers, Eighteenth Report of Session 2003-04, HC 713, para 5 Back

12   op cit, para 224 Back

13   Home Office Press Notice STATO55-2003, Response to the Report of The Anti-Terrorism, Crime And Security Act 2001 Review, Rt Hon David Blunkett MP, 18 December 2003, available at See also para 48 and HC Deb, 30 October 1997, col 1071 [Mr Mike O'Brien MP]  Back

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