Definition of international terrorist
32. As we recounted above, Part 4 of the Bill would
significantly alter the treatment of certain immigrants and intending
immigrants, including those who seek asylum in the United Kingdom
under the Convention relating to the Status of Refugees.
People who have no unconditional right to enter or remain in the
United Kingdom, and whom the Secretary of State suspects of being
international terrorists whose removal would be conducive to the
public good, would have their rights significantly altered, and
might in some circumstances be detained indefinitely without being
charged with any offence.
33. Under clause 21(1) of the Bill, the Secretary
of State would be allowed to issue a certificate identifying a
person subject to immigration control as someone whom the Secretary
of State believes to be a risk to national security, and suspects
to be an 'international terrorist'. International terrorists are
very widely defined in clause 21(2). They include people who (a)
are or have been concerned in the commission, preparation or instigation
of acts of international terrorism,
or (b) are members of or belong to an international terrorist
or (c) have links with a person who is a member of or belongs
to an international terrorist group.
34. We consider it important that the class of people
liable to be regarded as international terrorists should be sufficiently
clearly defined, because a certificate under clause 21 would have
significant effects on the person's right to liberty under Article
5 of the ECHR. Where a person is certified as a suspected international
terrorist, that person could be subject to a deportation order
or to a decision to refuse entry or to vary the conditions under
which he or she was previously admitted so as to lead to his or
her removal. There may be circumstances in which deportation is
not an available option. For example, there might be no country
to which the person could be sent where they would not be at risk
of torture, inhuman or degrading treatment or punishment, or the
death penalty. Removing the person in those circumstances could
violate the United Kingdom's obligation not to subject him or
her to death (including capital punishment) or torture or inhuman
or degrading treatment or punishment.
If the person cannot be deported or removed because it would either
be impractical to do so or contrary to the United Kingdom's international
legal obligations the Secretary of State would then be able to
detain the person either temporarily or indefinitely under the
provisions of clause 23 of the Bill.
35. Both under Article 5(1) of the ECHR (assuming
that the derogation, discussed above, is valid) and under the
broadly equivalent provisions of Article 9 of the ICCPR, the lawfulness
of the detention would depend in part on being able to show that
it was not arbitrary. The key issue here is whether the definition
of 'international terrorist' in the Bill is sufficiently clear
and non-discriminatory to avoid arbitrariness. In this context,
we are particularly concerned about two questions.
36. First, including people who have 'links with'
terrorist groups or with those connected with such groups seems
to us potentially over-inclusive. We are aware of no other legislation
in the United Kingdom which authorizes detention on the basis
of a criterion as vague as the person's 'links with' other people
or groups. The Bill does not in any way define the notion of such
37. We examined the Home Secretary in oral evidence
on the case for including the provision of clause 21(2)(c) relating
to terrorist links in the Bill.
His answers did not persuade us that the risk of arbitrariness
in its application could be avoided in practice. We therefore
draw this matter to the attention of each House.
38. Second, by relying on immigration legislation
to provide for the detention of suspected international terrorists,
the Bill risks discriminating, in the authorization of detention
without charge, between those suspected international terrorists
who are subject to immigration control and those who have an unconditional
right to remain in the United Kingdom. We are concerned that this
might lead to discrimination in the enjoyment of the right to
liberty on the ground of nationality. If that could not be shown
to have an objective, rational and proportionate justification,
it might lead to actions which would be incompatible with Article
5 of the ECHR either taken alone or in combination with the right
to be free of discrimination in the enjoyment of Convention rights
under Article 14 of the ECHR. It could also lead to violations
of the right to be free of discrimination under Article 26 and
the right to liberty under Article 9 of the ICCPR.
39. We raised this matter with the Home Secretary
in oral evidence.
Having considered his response, we are not persuaded that the
risk of discrimination on the ground of nationality in the provisions
of Part 4 of the Bill has been sufficiently taken on board.