The Derogation from Article 5 of the ECHR and
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.
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)
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).
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
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.
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.
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.
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
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