Joint Committee On Human Rights Fifth Report

Conclusions and recommendations

62. We draw the attention of each House to the following conclusions—

  • In view of the decision of SIAC, with access to both 'open' and 'closed' material, that the Government is justified in considering that there is a public emergency threatening the life of the nation, each House is entitled to adopt the same approach, although the two Houses might wish to seek additional information from the Government in support of its view (paragraph 20, above).

  • Although the wording of sections 21 to 23 of the ATCS Act is wider than is required by the exigencies of the public emergency, the availability of appeals to, and reviews by, SIAC provides a sufficient safeguard to ensure that the powers are exercised only when, and for as long as, there is a public emergency threatening the life of the nation, and that each individual detention is lawful only so long as that public emergency continues and the detention itself is strictly required by the exigencies of the situation (paragraph 21, above).

  • In relation to the derogation order, we consider that the procedure used in this case was unsatisfactory. Nevertheless, we consider that the order is likely to have become effective at the time the Act came into force and that it remains effective today (paragraphs 24 and 27, above).

  • The Government is entitled to rely at present on the decision of the Court of Appeal in A, X and Y and others v. Secretary of State for the Home Department that the difference between the treatment of nationals and non-nationals under sections 21 to 23 of the Act is justified so as to be compatible with ECHR Article 14 coupled with Article 5, although the matter would need to be reviewed if the House of Lords or the European Court of Human Rights were to take a different view (paragraph 32, above).

  • The definition of 'international terrorist' in the Act could usefully be improved, but in our view the present definition is sufficiently clear as long as it can be shown that the power is being used in a justifiable way in all cases (paragraph 35, above).

  • In relation to the assessment of evidence of the threat to national security and terrorists links in individual cases under the Act, we are satisfied that the rigorous review by Lord Carlile of Berriew Q.C. adequately ensures that power is being used in a justifiable way in all cases (paragraph 38, above).

  • We draw attention to the delay in commencing substantive hearings in respect of appeals before SIAC as a matter of considerable concern (paragraph 41, above).

  • We draw attention to the need for each House to satisfy itself that legal assistance of appropriate quality is available to detainees speedily so as to make effective the rights of appeal to and review by SIAC under the Act. As the rights of appeal and review are important safeguards for human rights, any weakness in the provision of such assistance would tend to weaken the case for extending the operation of the detention provisions (paragraph 42, above).

  • In relation to the special advocate system to deal with 'closed' evidence before SIAC, we note that the system inevitably disadvantages detainees and puts a fair trial at risk. We therefore consider that no piece of evidence should be treated as 'closed' unless withholding it from the detainee is strictly required by the exigencies of a public emergency threatening the life of the nation (paragraph 47). As long as that test is met in relation to all 'closed' evidence, we consider that the special advocate system is, at present, the best (albeit not wholly satisfactory) way of balancing public interests and private rights. Each House could therefore properly conclude that the disadvantage to the detainees in relation to 'closed' evidence is justified at present (paragraph 48, above). However, the special advocate should be able to appear and make submissions about the 'closed' evidence as of right before the Court of Appeal and House of Lords, as well as before SIAC, in order to protect due process rights (paragraph 50, above).

  • Persons who have not been charged with any offence should have that status reflected in the circumstances of their detention, without compromising security. We draw this to the attention of each House as a matter to be considered before deciding whether to continue sections 21 to 23 of the ATCS Act in operation (paragraph 52, above).

  • If each House is satisfied that appropriate steps are being taken to safeguard human rights in relation to the matters set out above, we consider that it would be justifiable, on human rights grounds, to extend the operation of the provisions in question for a further year.

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