Joint Committee On Human Rights Fifth Report

The Derogation from Article 5 of the ECHR and Detention

4. We devoted a considerable proportion of our Second Report to a discussion of the proposal to derogate from Article 5 of the ECHR in respect of the provisions of Part 4 of the Bill. We said in our Second Report that we were not persuaded that the conditions for a derogation had been met.[15] We do not yet feel that the case for a derogation has been made to Parliament, and we intend to return to this question in due course. Meanwhile, the Human Rights Act 1998 (Designated Derogation) Order[16] is now in force. It follows that, for the purposes of domestic law in the United Kingdom, the right to liberty under Article 5 of the ECHR and the Human Rights Act 1998 is already subject to the derogation (subject to the possibility of judicial review of the Order on the ground that it is not a valid derogation in international law, and so cannot be a designated derogation within the meaning of the Human Rights Act 1998).[17] Assuming that the Order is valid, it will not be a violation of the right to liberty to detain a suspected terrorist suspect, covered by a certificate issued under clause 21, against whom a deportation order has been made, but who cannot be deported because it has not so far been possible to find a country which is prepared to take the person and in which he or she would not be at risk of death, torture or inhuman or degrading treatment or punishment.

5. We noted in our Second Report that a precautionary derogation might be necessary if the proposed legislation were likely to be incompatible with Article 5, and that an incompatibility was particularly likely to arise if the detention power were used for a purpose other than to take action against the person with a view to deportation or extradition. We also noted that clause 23 of the Bill, which confers the power to detain a person in these circumstances, does not in terms specify that the purpose of such detention is to enable the Home Secretary to take action to guard against the threat posed by the foreign national suspected of being an international terrorist, while allowing the authorities to continue to seek a safe third country which would take the detainee. If the power were to be used to detain a person for another purpose, the detention would be more likely to be incompatible with Article 5 than if the power were used to detain the person with a view to deportation or extradition.

6. During the debate on the Order in the House of Commons, there was some discussion of the possibility that there might be no need for the derogation if the Government's only purpose in detaining people under clause 23 were to seek diligently for a safe country to which they could go. Such a detention could well be lawful within Article 5(1)(f) of the ECHR.[18] Because clause 23 does not specify the purpose for which people may be detained, we consider that the Government was entitled to conclude that a derogation might be necessary, provided that it could show that the requirements of Article 15 of the ECHR had been met. However, the derogation seems to make it possible to detain suspected international terrorists in order to prevent them from undertaking further terrorist activity. There appears to us to be a tension between this possibility and Ministers' statements that such people would be permitted to leave the United Kingdom immediately if they wished to do so.[19] In our view, it is essential for the Bill to be clarified to ensure that the object and purpose of the exceptional power to detain is confined only to cases where the Government has concluded that it would be impossible or inappropriate to prosecute the person, and is seeking diligently for a safe country. Both Houses may wish to seek to ensure that its terms are more narrowly drawn. We accordingly draw the matter to the attention of each House.

15   See Appendices 3 (pp. 13-17) and 5 (pp. 22-23) for two differing legal opinions on this question Back

16   SI, 200,1 No. 3644 Back

17   See the exchange between Lord Mayhew of Twysden and Lord Lester of Herne Hill, HL Deb., 19 November 2001, c 893 Back

18   HC Deb., 19 November 2001, cc 129 and 139-140 (Vera Baird MP) Back

19   "...this is not internment but something completely different; those people can leave whenever they choose." ibid., c 114 (Beverley Hughes MP, Parliamentary Under-Secretary of State for the Home Department). See also HL Deb., 19 November 2001, c. 902 c 508 (Lord Rooker); HC Deb., c 380 (Rt. Hon. David Blunkett MP) Back

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