4. Memorandum from Liberty (the National
Council for Civil Liberties) on the Anti-Terrorism, Crime and
Security Bill 2001
PART 4 CLAUSES 21 TO 30
Established in 1930 as the "National Council
for Civil Liberties", Liberty began its long tradition
of research and lobbying on anti-terrorist legislation with its
first commentary on special powers in Northern Ireland in 1936.
Liberty's concerns about terrorism measures
are reflected in the fact that of the more than 7,000 people detained
in Britain (i.e. not including Northern Ireland) under the Prevention
of Terrorism Act, the vast majority have been released without
charge and only a tiny fraction have ever been charged with anything
remotely resembling terrorism. To take an example in 1992, when
the activities of the IRA and others were still at their height,
160 people were arrested under the Act in Britain. Of these eight
were charged with murder, conspiracy or possession of explosives,
three were deported or excluded, twelve were charged with theft
or fraud and eight with other minor offences. There is no evidence
to suggest that these people charged could not have been arrested
under the ordinary criminal law. However all of the others arrested,
none of whom were convicted of any crime, were subjected to unnecessary
arrest and detention. The anti-terrorism laws in this country
have led to some of the worst human rights abuses in this country
over the last 30 years, contributed to miscarriages of justice
and have led to the unnecessary detention of thousands of innocent
people, mainly Irish.
4 OF THE
Existing legislation allows for the deportation
of non-UK citizens whose presence in our country is "not
conducive to the public good" (including on grounds of
national security). Immigrants may be detained (and have been
detained for long periods) pending examination, appeal and removal.
Some people face torture in the only country
to which they may be returned. Under Article 3 of the European
Convention on Human Rights ("ECHR") (the prohibition
on torture), these people are effectively irremovable from the
UK. However, there is nothing to prevent such people being detained,
charged and prosecuted in the UK for any number of terrorist or
criminal offences (including those over which we assert extra-territorial
In deciding who to detain the authorities will
have to be heavily dependent upon the intelligence of foreign
governments as a basis for suspicion and detention. Some of these
governments lack democratic and human rights credentials and some
of the suspects will be dissidents and or asylum seekers. This
will add to the sense of injustice.
There will be an appeal but the person and his
or her lawyer will not be entitled to see all the evidence and
the appeal panel will have to exclude them when they hear that
secret material. The case will not have to be proved beyond reasonable
doubt, the presumption of innocence will not apply and the usual
quality checks on the evidence will be missing.
These measures will only apply to foreigners
and in particular those who cannot be deported because they are
likely to be tortured or killed in the country that they are sent
to. These people could be detained for long periods and possibly
There are difficult decisions to be made but
there are other alternatives. Those who are planning or committing
criminal offences in the United Kingdom can be prosecuted here.
Secondly the new draconian Terrorism Act, which only came into
force earlier this year, extends the possibilities of prosecution
here for offences committed in other countries. Thirdly, in some
cases, it will be possible to send people to face trial for offences
that they have committed in other countries back to those other
countries. Fourthly the security services here could keep people
under surveillance given all their new powers in the Regulation
of Investigatory Powers Act and ensure that they commit no offences
Internment has been tried before. It was tried
in Northern Ireland and the consequence of intelligence being
wrong was that hundreds of innocent nationalists were locked up.
Its only "success" was to drive many more people into
the arms of the terrorists. It was tried more recently during
the Gulf War when again innocent people were locked up for no
good reasons, fortunately the War did not last long and they were
This time those interned are likely all to be
Moslems. Some of them will be not have been convicted of any crimes
and there will be an obvious perception that the authorities are
rounding up people of the Muslim religious faith. This could have
a disastrous effect upon community relations.
So significant is this measure that the government,
only one year after enshrining the European Convention on Human
Rights into our law, is having to opt out or "derogate"
from one of its fundamental provisions, the prohibition on arbitrary
detention. Such derogations are supposed to be reserved for "war
or other public emergencies threatening the life of the nation".
There is no imminent threat of the complete breakdown of civil
society in the UK. We have not reached this point as yet and although
there are threats, the nation itself is not in jeopardy. That
is why of the forty or so countries signed up to the Convention
we are the only country indicating we want to opt out. Not even
in the US where the atrocities happened has the government considered
it necessary to adopt a policy of indefinite detention.
5 OF THE
A policy of indefinite detention without trial
would indeed require derogation from Article 5. However, Parliament
should view any such derogation with great scepticism. In addition
to the substantive indefinite detention issue, extreme caution
should be exercised before derogating from fundamental human rights.
This is all the more concerning so soon after the implementation
of the Human Rights Act 1998 ("HRA") and before there
has been an a real opportunity for human rights to become embedded
in the political, legal and wider social aspects of our constitutional
culture. Such a derogation could in principle send a very negative
signal to the country as to the value which the executive places
upon constitutional rights and the rule of law. Even in the present
climate, it is hard to conceive of the US legislature countenancing
an abrogation of American constitutional rights as an appropriate
method of combating terrorism.
15 OR ON
What is being proposed relates to circumstances
where a non-British National is suspected of involvement in terrorism
and the government is contemplating deportation because the person's
presence in the United Kingdom is "not conducive to the public
Some such people will not be able to be deported because, if sent
to the only country that will accept them, they are likely to
be subjected to treatment there that violates Article 3 of the
In such circumstances the proposal is that these
people will be detained until they are no longer a threat or a
country can be found to accept them which will protect them against
Article 3 violations. Such indefinite detention is likely to violate
Article 5 of the Convention. The relevant parts of provision state:
"5(1) . . . No one shall be deprived of
his liberty save in the following cases and in accordance with
a procedure prescribed by law: (f) the lawful arrest or detention
. . . of a person against whom action is being taken with a view
to deportation or extradition."
Any such detention is limited in time because
it requires active steps to be taken to deport or to extradite.
As a result any unlimited period of detention would be unlawful
under the Convention and therefore contrary to the Human Rights
A derogation from parts of the obligations under
the Convention can be made in specified circumstances and the
Home Secretary is exercising this option. Article 15(1) states:
"In time of war or other public emergency
threatening the life of the nation any High Contracting Party
may take measures derogating from its obligations under this Convention
to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with its obligations
under international law."
Certain Convention rights are however non-derogable.
The Human Rights Act 1998 (HRA) which incorporated
the Convention into domestic law also deals with the issue of
derogations. The Articles of the Convention which are incorporated
are subject to any "designated derogation" or reservation
but there is no requirement on the face of the Act that the derogation
In order for a derogation to be a "designated"
derogation for the purposes of the HRA two things need to have
happened. The United Kingdom must formally notify the derogation
to the Council of Europe
and the Secretary of State must also make an order designating
It is arguable that section 3 of the HRA might
allow the courts to attach the word "lawful" to these
provisions allowing a challenge to a derogation in domestic proceedings.
Further any designation order would, after all, be secondary legislation
and therefore could be scrutinised by the courts on basic rationality
and vires grounds, perhaps against the standard of proportionality.
However all such challenges are denied by Clause
30 except by using the Special Immigration Appeals Commission.
It seems likely that if the Government were
to make a derogation from the Convention that a challenge to the
lawfulness of that derogation would eventually reach the courts.
It is therefore important to examine the approach the Strasbourg
Court has taken to applying Article 15 and the conclusions reached.
In Lawless v Ireland (No 3)
the Court stated that the words "other public emergency threatening
the life of the nation" "refer to an exceptional situation
of crisis or emergency which affects the whole population and
constitutes a threat to the organised life of the community of
which the State is composed."
In an earlier case the European Commission of
Human Rights took the view that the test in Article 15 had not
been satisfied despite giving the State the benefit of the margin
This case concerned applications by a number of Scandinavian countries
against the regime set up by the "Greek Colonels" in
1967. In that case the government argued that there had been a
decline in public order over a number of months bringing the country
to near anarchy. Between 1944 and 1967 there had been forty-one
"the Parliamentary system had virtually
broken down, with party corruption and violent incidents in the
chamber. The machinery of the State was paralysed. There were
daily strikes and warnings that the economy was on the verge of
"vehicles and houses under construction
were set on fire and barricades were erected in the centre of
Athens . . . hundreds of policemen were killed or injured. In
July 1965, 299 civilians and 250 policemen were injured."
"the Communists began in 1966 to prepare
for armed insurrection. Their "clandestine apparatus"
included shock brigades and groups which observed officers of
the Army and security forces. The Communists were assembly weapons
and disposed of hiding places and depots for equipment. A paramilitary
organisation had secretly been set up."
When the HRA came into force there was one derogation
in place concerning the length of pre-trial, pre-charge detention
under prevention of terrorism legislation.
This derogation was entered following the decision in Brogan v
in which the European Court of Human Rights held the UK to be
in breach of Article 5. The validity of the derogation was subsequently
challenged in Brannigan and McBride v UK.
In that case the Court decided that the national authorities are
"[b]y reason of their direct and continuous
contact with the pressing needs of the moment, the national authorities
are in principle in a better position than the international judge
to decide both on the presence of such an emergency and on the
nature and scope of derogations necessary to avert it."
It therefore afforded the Government a wide
margin of appreciation. However it retained a supervisory role
for itself in holding that "[I]t is for the Court to rule
on whether inter alia the States have gone beyond the "extent
strictly required by the exigencies" of the crisis."
However the Court was not unanimous in its support for the government's
Although the atrocities in the United States
were shocking and substantial and although some groups have identified
the United Kingdom as a legitimate target of similar attacks,
it is not clear whether the Court would accept that there is an
"emergency threatening the life of the nation". The
circumstances as they apply to the UK are not the same as the
situation in the United States and the emergency is not of the
same order as previously existed in Northern Ireland and as pleaded
by the government in Brannigan. For instance the Home Secretary
stated on 15 October that "[there] is no immediate intelligence
pointing to a specific threat to the United Kingdom."
The second question that the Court must consider
in any challenge is the extent to which the provisions that violate
Article 5 are "strictly required" by this emergency
and designed, in this case, to avoid further terrorist incidents.
The European Commission of Human Rights in Ireland v UK
"There must be a link between the facts
of the emergency on the one hand and the measures chosen to deal
with it on the other. Moreover, the obligations under the Convention
do not entirely disappear. They can only be suspended or modified
"to the extent that is strictly required" as provided
in Article 15."
This requires as Judge Martens states a consideration
of the second question as to whether
"the derogation is to "the extent strictly
required by the exigencies of the situation". The wording
clearly calls for a closer scrutiny than the words "necessary
in a democratic society" which appear in the second paragraph
of Article 8-11. Consequently, with respect to this second question
there is, if at all, certainly no room for a wide margin of appreciation."
Lastly, given the nature of terrorist threats
to European countries generally, the question will need to be
asked as to why is it that the vast majority of the other forty
or so countries signed up to the Convention do not feel that similar
measures are so "strictly required" in their countries.
Overcoming this hurdle will be particularly difficult given that
the assessment of the lawfulness of the measure will be by a majority
of judges who come from those other countries who have not found
it necessary to design provisions which involve indefinite detention
without trial and which breach a fundamental right of the Convention.
Liberty has commissioned an opinion from David
Pannick QC a leading human rights and public law QC in this country.
He has acted for and against the Government over many years and
has been the Home Office's silk of first preference through the
Howard, Straw and Blunkett periods. In his view:
"I therefore conclude that the derogation
from Article 5(1) of the European Convention on Human Rights is
unlawful in the current circumstances because it does not satisfy
the criteria contained in Article 15 of the Convention."
Whilst we welcome the government's attempts
to improve the provisions of the Bill by making or putting down
amendments none of the changes change the fundamental provisions
in this Part of the Bill.
Despite the addition of the word "reasonable"
in clause 21(1) the Secretary of State still only has to suspect
a person is an international terrorist rather needing to believe
that person is a terrorist (cf. 21(1)(a)).
Originally in clause 21(2) the definitions are
very wide ranging allowing a person to be detained if they merely
have "links" with another person. The government has
put tabled an amendment which will restrict this provision so
that it only applies to a person who has links with an international
terrorist group. A further amendment restricts this further so
that a person will only have links if he or she supports or assists
an international terrorist group.
These are welcome amendments nevertheless we
cannot see why it is necessary to extend the remit of this provision
beyond those in clause 21(2)(a) and (b). If the Secretary of State
does not suspect that a person is or has been concerned in the
commission, preparation or instigation of acts of international
terrorism nor is a member of or belongs to an international terrorist
group then that person should not be detained indefinitely. To
detain any other person merely on the basis of some other very
remotes links is wrong and gives the Secretary of State a very
Furthermore the Secretary of State only has
to suspect that the group, or that the person involved,
is concerned with the commission, preparation or instigation of
acts of terrorism.
This degree of "flexibility" is in
addition to the problematic and vague definition of terrorism
in the 2000 Act which is defined as:
the use or threat, for the purpose of advancing
a political, religious or ideological cause, of action which-
(a) involves serious violence against any
person or property,
(b) endangers the life of any person, or
(c) creates a serious risk to the health
or safety of the public or a section of the public."
This goes beyond the previous definition in
the following ways:
(1) By the addition of religious or ideological
causes to that of "political ends".
(2) By including threats. Would threats to
overturn the regime of Saddam Hussein by politicians be sufficient?
(3) By including "violence" to
property. The terrorism provisions in the past have been reserved
for the most serious cases. In particular where the offences might
involve death or serious injury. To dilute this to involve "violence"
to property is wrong. It is also surprising to find no definition
of this. Usually damage to property is described as criminal damage.
(4) By including health or safety. Again
this is a further dilution of the definition.
The difficulty with this definition is that
it is capable of encompassing activities which whilst unlawful
cannot properly be regarded as terrorism, e.g. animal rights activism
or even in certain circumstances civil disobedience, e.g. the
tree protesters, animal export protesters, or even some forms
of industrial action.
We have argued before that a more focused definition
is provided by the Reinsurance (Acts of Terrorism) Act 1993 (providing
for the payment of monies by the Secretary of State in respect
of loss or damage to property resulting from or consequential
upon acts of terrorism): section 2 provides that:
"acts of terrorism . . . means acts of persons
acting on behalf of, or in connection with, any organisation which
carries out activities directed towards the overthrowing or influencing,
by force or violence, of Her Majesty's government in the United
Kingdom or any other government de jure or de facto.
This definition better captures the essence
of terrorism as the use of violence by or against the State in
order to intimidate or coerce, cf OED, 2nd Ed, 1989.
The scope of appeals to the Special Immigration
Appeals Commission have been recently restricted by the House
of Lords in the case of SSHD v Rehman.
Most commentators agree that in this decision,
the House of Lords has allowed a great degree of deference to
the executive in terms of:
Allowing the executive the primary
judgment as to the parameters of "national security"
and its demands.
Allowing various grounds of being
"non-conducive to the public good"
to be read conjunctively rather than disjunctively so that eg.
"national security" threats may not be directly aimed
at the United Kingdom itself.
Clause 27(4) also prevent appeals from the Commission
to the courts in "derogation matters" (see above).
Can access to judicial review be excluded in relation
to SIAC decisions?
Over the years, there have been various attempts
by the legislature to exclude or limit the judicial review and
appellate jurisdictions of the higher courts in relation to executive
decisions or those of lower courts and tribunals. The general
lesson to be learned from the courts treatment of such legislative
attempts is that whilst adopting considerable deference to Parliamentary
intention in terms of which is the appropriate jurisdictional
route for the challenge of administrative decisions,
the courts will not countenance ouster provisions which attempt
to prohibit all judicial scrutiny. Further, the courts are well
equipped (by the common law let alone the HRA).
In any event, Parliament should be slow to attempt
to frustrate judicial scrutiny and the rule of law, particularly
where fundamental rights are at stake and the perception of legitimacy
in administrative/ executive action is all the more important.
Those who fear delayed decision-making or an over-interventionist
judiciary should remember that UK courts have a long and thriving
tradition of deference to the Government in matters relating to
national security. A UK Government might well prefer the scrutiny
of domestic courts to that of the Strasbourg court in this context.
We must make it clear that we are not suggesting
that judicial review should be substituted for any appeal to the
Commission but should be available as a remedy of last resort.
35 In 1935, a year after the organisation was established,
a Commission of Inquiry was sent to Belfast to examine the operation
of the Special Powers Act, a precursor of the modern Emergency
Provisions and Prevention of Terrorism Acts. Liberty helped to
establish the Northern Ireland Civil Rights Association in the
early 1960s, and brought the first legal challenges based on human
rights to the Prevention of Terrorism Act. Back
In 1971 342 IRA suspects were interned and 104 of these had to
be released within two days. Back
Section 3 (5) Immigration Act 1971. Back
See Chahal v UK 23 EHRR 413. Back
"If such proceedings are not pursued with due diligence,
the detention will cease to be permissable" Chahal,
para 113. Back
Including the right to life (Article 2) and the prohibition on
torture, inhuman or degrading treatment or punishment (Article
3) but not the right to liberty and freedom from arbitrary detention
(Article 5). Back
This is also a requirement of a lawful derogation for the purposes
of Article 15 itself, see Cyprus v Turkey 4 EHRR 48 Back
R v Secretary of State for the Home Department, ex parte Daly,
 2 WLR 1622, 3 ALL ER 433. Back
Liberty would in practice seek to find, help with or create such
a challenge. Back
1 EHRR 15, para 28. Back
The Greek case, 12 YB 1 (1969). Back
Sch 3 Pt I. This derogation was withdrawn earlier this year once
the Terrorism Act 2000 came into force. This Act provided judicial
rather than political authorisation for extended periods of detention
for interrogation and cured the mischief that had been identified
in Brogan. Back
(1989) 11 EHRR 117. Back
(1994) 17 EHRR 539. Back
(1978) 2 EHRR 25. Back
The Association of Chief Police Officers has apparently suggested
that the anti-terrorist squad should be asked to gather intelligence
on environmental activists, Guardian, March 27, 1996. Of course
in this specific provision the "terrorism" has to be
Eg. "national security", "the relations between
the UK and any other country" and "other reasons of
a political nature" under section 15(3) of the Immigration
Act 1971. Back
See eg. R v DPP, ex p Kebilene (HL) 28 October 1999 as
to judicial deference to section 29(3) of the Supreme Court Act
As to attempted ouster of JR, see Anisminic v Foreign Compensation
Commission  2.A.C.147 and R v SSHD, ex p Fayed
 1WLR. As to overcoming restrictions upon statutory appellate
jurisdiction in the context of human rights, see eg. R v Lichniak
v Pyrah (Divisional Court/ Court of Appeal- Crim Division)
2 May 20 Back