Comparison with other countries
81. The discussion paper states that the Government
is willing to learn from the experience of other countries, and
that it is important that the debate on alternatives to Part 4
ATCSA 2001 is informed by an analysis of the different ways in
which other mature liberal democracies have addressed this issue.
We asked the House of Commons Scrutiny Unit to conduct a comparative
study of the ways in which other states have responded to the
threat from international terrorism. The product of that research
is set out at Annex A.[100]
82. The UK is the only country out of 45 countries
in the Council of Europe to have considered it necessary to derogate
from Article 5 of the Convention. It is also the only country
in the world to have derogated from Article 9 ICCPR. Apart from
the United States, none of the other countries surveyed has resorted
to the indefinite administrative detention of foreign nationals
who are suspected terrorists.
83. The comparative research found that most jurisdictions
have sought to deal with those suspected of involvement in international
terrorism by means of criminal prosecution. It found that in most
states various special measures have been taken in order to facilitate
prosecution in such cases. Such measures include the creation
of new terrorism or terrorism-related offences, the adoption of
new investigative techniques, new protections for sensitive information,
changes to criminal procedure including longer pre-charge detention,
and the imposition of higher sentences for terrorism-related offences.
84. We commend this comparative research to the
Government. We conclude from it that the central insight of the
Newton Report is correct: that it must be possible to deal adequately
with the threat from international terrorism by measures which
enable the use of the criminal law against those suspected of
international terrorism, of whatever nationality, and without
the necessity of derogating from international human rights obligations.
Conclusion
85. We look forward now to the publication of the
outcome of the Government's consultation on its review of counter-terrorism
powers. We hope that it will provide evidence of a real commitment
to reconcile security and liberty. We anticipate engaging further
with the Home Secretary on these questions when the consultation
is concluded.
1 Cm 6147, hereafter referred to as "the Discussion
Paper". Back
2
Part One. Back
3
Part Two. Back
4
Privy Counsellor Review Committee, Anti-terrorism, Crime and Security
Act 2001 Review: Report, HC 100, 2003-04, published on 18 December
2003. Back
5
Letter from Rt Hon David Blunkett MP, Secretary of State for Home
Affairs, to the Chair, 6 February 2004 (Sixth Report, Session
2003-04, Anti-terrorism, Crime and Security Act 2001: Statutory
Review and Continuance of Part 4, HL Paper 38, HC 381, Appendix
2). Back
6
The Newton Report, para 203. Back
7
Cited by the Home Secretary in his Foreword to the Discussion
Paper. Back
8
For example, the first sentence of Article 2(1) ECHR states that
"Everyone's right to life shall be protected by law."
This has been interpreted by the European Court of Human Rights
as imposing a positive obligation on States to take appropriate
steps to safeguard the lives of those within its jurisdiction,
including by the adoption of laws protecting life against the
acts of third parties. Back
9
Adopted by the Committee of Ministers on 11 July 2002 at the 804th
meeting of the Ministers' Deputies. Further useful guidance on
the relevant international human rights standards is contained
in the Report by the International Bar Association's Task Force
on International Terrorism, International Terrorism: Legal
Challenges and Responses (2003), esp. chapter 4, "Upholding
Human Rights and Civil Liberties in the Fight against Terrorism." Back
10
Resolution 1456 (2003), para. 6. Back
11
See e.g. Concluding Observations: Sweden, CCPR/CO/74/SWE
(24/04/2002), para. 12. Back
12
Second Report of Session 2001-02, Anti-Terrorism, Crime and
Security Bill, HL Paper 37, HC 372, para 30; Fifth Report
of Session 2002-03, Continuance in Force of Sections 21 to
23 of the Anti-terrorism, Crime and Security Act 2001, HL
Paper 59, HC 462, para 20; Sixth Report of Session 2003-04, Anti-terrorism,
Crime and Security Act 2001: Statutory Review and Continuance
of Part 4, HL Paper 38, HC 381, para 19. Back
13
Cm 6147, Part One, para 5. Back
14
Ibid, paras 5-16. Back
15
A, X, Y and others v Secretary of State for the Home Department
[2002] EWCA Civ 1502. Back
16
The issue will be decided by the House of Lords, which is due
to hear the detainees' challenge to the lawfulness of the derogation
from Article 5 in October 2004; and thereafter probably by the
European Court of Human Rights. Back
17
As Baroness Hayman put it in oral evidence, when Parliament is
asked to form a judgment about proportionality, "a lot of
this flows from how strong the emergency is": Q 66. Back
18
The Newton Report did not enter into this question, but proceeded
on the assumption that the threat was such as to require special
measures: "We took the view that it would be prudent to assume
that the terrorist threat is of a nature that may warrant special
legislation and that it is likely to be with us for a number of
years to come": Lord Newton, HL Deb, 4 March 2004 col. 784. Back
19
www.mi5.gov.uk Back
20
At the joint meeting of the Defence and Home Affairs Committees
on 2 March 2004 (HC 417-i), this point was made to the Home Secretary
by Mr. Peter Viggers MP (Q58), who asked if the nature of the
counter-terrorism powers placed any additional responsibility
on the Home Secretary to disclose the evidence on which his assessment
was based. The Home Secretary replied to the effect that the threat
was self-evident from information already in the public domain. Back
21
JUSTICE, in its written evidence (at para. 9) draws attention
to the problem of lack of public and civil society participation:
"the ability of civil society groups such as JUSTICE to assess
either the necessity or proportionality of the government's counter-terrorism
measures following September 11 is severely limited by the fact
that much of the evidence used by the government to justify its
decision to derogate cannot be disclosed for reasons of national
security. Although we accept the government's claim (upheld by
SIAC and the Court of Appeal) that disclosure of such material
is not in the public interest, government secrecy remains a significant
obstacle to informed public debate on counter-terrorism powers." Back
22
The phrase is Lord Carlile's, describing what in his view is the
over-cautious attitude of the intelligence services towards relaxing
the absolute ban on the use in court of intercept evidence: see
Lord Carlile of Berriew QC, Anti-terrorism, Crime and Security
Act 2001 Part IV Section 28 Review 2003 ('the Carlile Review
2003'), at para. 82. Back
2 23 3
Intelligence Services Act 1994 s.10(4) and Schedule 3. Back
24
Q 61 Back
25
Cm 6147, Part One, paras 21-41. Back
26
The Carlile Review 2003, op cit., para. 123. Back
27
Fifth Report, Session 2002-03, Continuance in Force of Sections
21 to 23 of the Anti-terrorism, Crime and Security Act 2001,
op cit., and Sixth Report, Session 2003-04, Anti-terrorism,
Crime and Security Act 2001: Statutory Review and Continuance
of Part 4, op cit. Back
28
Ajouaou and A, B, C and D v Secretary of State for the Home
Department, 29 October 2003, paras 81 and 84 (Ouseley J.).
For example, Amnesty International has expressed its concern that
the possible use of evidence obtained under torture, including
torture of a third party, is contrary to international human rights
law: see evidence at Appendix 3, paras 15-18. See also Liberty
Urgent briefing: Anti-terrorism debates (February 2004)
at para. 8; Medical Foundation for the Care of Victims of Torture,
Appendix 7, para.1. Back
29
Baroness Scotland to Lord Judd, HL Deb., 26 April 2004, c WA 71. Back
30
The Carlile Review 2003, para. 43. Back
3 31 1
Guidelines, op cit., Article IV. Back
32
QQ 13 and 17. Back
33
Q 14. Back
34
The Carlile Review 2003, para. 36. Back
35
Q 1. Back
36
M v Secretary of State for the Home Department. The Court
of Appeal dismissed the Home Secretary's appeal: [2004] EWCA Civ
324, [2004] HRLR 22 (18 March 2004).The quotation in the text
from the SIAC judgment is set out at para. 28 of the Court of
Appeal's judgment. Back
37
Q 2. Lord Carlile understood the rationale behind the decision
in M to be that M was a person who posed a terrorist threat,
but was a member of a Libyan terrorist organisation not linked
to Al Qaida and therefore outside the scope of the derogation.
In fact, SIAC did not doubt that the Secretary of State was entitled
to suspect that M was a terrorist within the meaning of
the 2001 Act, but found that this view was not reasonable
because "too often assessments have been based on material
which does not on analysis support them." Back
38
Appendix 5. Back
39
It appears that M, for example, was never interviewed during his
fifteen months of detention. Back
40
Similar concerns have been expressed by Human Rights Watch: Neither
Just nor Effective: Indefinite Detention without Trial in the
United Kingdom under Part 4 of the Anti-terrorism, Crime and Security
Act 2001, Human Rights Watch Briefing Paper (24 June 2004),
pp. 14-16; by Amnesty International, Appendix 3, at para. 13,
and by the Medical Foundation for the Care of Victims of Torture,
Appendix 7. Back
41
See evidence at Appendix 2. Back
42
Report to the Government of the United Kingdom on the visit to
the United Kingdom carried out by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT) from 17 to 21 February 2002 (12 February 2003), CPT/Inf
(2003) 18 at para. 25. In March 2004, a delegation of the CPT
carried out a six day visit to the UK, focusing on the ATCSA detainees.
The Report in respect of the latest visit is not yet available. Back
43
Ibid., para. 69. Back
44
Ibid., para. 85. Back
45
Lord Carlile in his evidence to us considered this to be a difficult
question, but ultimately regarded it as "part of our political
tradition": QQ 9 and 10. Back
4 46 6
See The Carlile Review 2003 at para.81. Our informal seminar with
M. Errera suggested that there are no equivalent restrictions
on the right to counsel in France. Back
47
Cm 6147, op cit., Part One, para. 36. Back
48
Q 60. Back
49
CERD/C/63/CO/11 (18 August 2003), para. 17. See also Human Rights
Watch Briefing, op cit. Back
5 50 0
Metropolitan Police Authority 2004, Report of the MPA Scrutiny
on MPS Stop and Search Practice. Back
51
See submission from the Commission for Racial Equality, Appendix
1. See also Liberty, The Impact of Anti Terrorism powers on
the British Muslim population (June 2004) and Human Rights
Watch Briefing, op cit. Back
52
Cm 6147, op cit., Part One, para 44. Back
53
The Newton Report, para 203. Back
54
Ibid., paras 205-257. Back
55
Cm 6147, op cit., Part One, para. 47. Back
56
Cm 6147, op cit., Part Two, para. 32. Back
57
The Newton Report, para 207. Back
58
Under s. 17 of the Regulation of Investigatory Powers Act 2000. Back
59
The Newton Report, paras 208-215. Back
60
Inquiry into Legislation against Terrorism (1996), Chapter
7. Back
61
Home Affairs Select Committee, Minutes of Evidence 11 March 2003. Back
62
Q 22. Back
63
Q 32. Back
64
ibid., para. 224. Back
65
Oral evidence (19 May 2004) Q57. JUSTICE also opposes this proposal,
partly on the basis that it is unclear how the use of security-cleared
judges screening evidence would improve on the admissibility of
material from the current system: JUSTICE submission, Appendix
6, para. 18. Back
66
Oral Evidence (19 May 2004) Q46 Back
67
Appendix 6, para. 12. Back
68
The Council of Europe's Guidelines on human rights and the fight
against terrorism acknowledge, in Article IX.3, that the imperatives
of the fight against terrorism may justify certain restrictions
to the right of the defence, including arrangements for access
to the case file and the use of anonymous testimony, provided
that such restrictions are strictly proportionate to their purpose
and do not impede the substance of the right to due process. Back
69
Cm 6147, op cit., Part One, para. 48. Back
70
ibid, para. 49. Back
71
ibid, para. 56. Back
72
The Carlile Review 2003, para. 101. Back
73
Q 24. Back
74
The Newton Report, para. 207. Back
75
QQ 42 and 43. Back
76
The Newton Report, paras. 216-223. Back
77
See further below, and Annex A. Back
78
The Carlile Review 2003, para. 115. Back
79
Q 21. Back
80
Q 45. Back
81
Appendix 6, para. 15. Back
82
The Newton Report, para. 248. Back
83
The Newton Report, paras 248-9. Back
84
ibid., para. 247. Back
85
QQ 33-37. Back
86
ibid., Q 34. Back
87
ibid., Q 35: "the fundamental issue to me is whether this
is better or worse that what we have got at least as one way of
reducing the need to detain people
indefinitely on the
basis that we do at the moment." Back
88
ibid., Q 33. Back
89
G v Secretary of State for the Home Department [2004] EWCA
Civ 265. Back
90
Appendix 6, para. 27. Back
91
The Newton Report, paras. 251-253. Back
92
The compatibility of anti-social behaviour orders with the ECHR
was confirmed by the House of Lords in McCann. Back
93
Q 55. Back
94
Q 57. Back
95
ibid Back
96
Appendix 6, para. 29. Back
97
ibid., paras 30-32. Back
9 98 8
R (McCann) v Crown Court at Manchester [2002] UKHL, [2003]
IAC 787. Back
99
JUSTICE also suggests that the reviewing court should have the
power to substitute less restrictive measures where it decides
that certain restrictions are disproportionate, and that the orders
should be time-limited: ibid., para. 19. Back
1 100 00
Annex A (page 25) Back