This Report considers the human rights implications of the Anti-terrorism, Crime and Security Act 2001 in the context of (a) the review of the whole Act by a Committee of Privy Councillors chaired by Lord Newton of Braintree, (b) the report by Lord Carlile of Berriew QC on the operation in 2003-04 of Part 4 of the Act, which allow suspected international terrorists who are not United Kingdom nationals and cannot be removed from the country to be detained indefinitely without charge, and (c) the draft Order laid before each House to continue in force for a further twelve months from 14 March 2004 those provisions.
In relation to Part 4 of the Act, the Committee's conclusions are as follows:
a) there are serious weaknesses in the protection for human rights under the detention provisions of Part 4 of the Act (paragraph 33);
b) in the light of the evidence so far presented to Parliament, the Committee continues to doubt whether the powers under Part 4 are strictly required by the exigencies of the situation to deal with a public emergency threatening the life of the nation, and so continues to doubt whether the derogation from ECHR Article 5 is justified (paragraphs 33 to 34);
c) even if the courts were ultimately to decide that the derogation from Article 5 is justified, the Committee would still consider an indefinite derogation from the important right to liberty under Article 5 to be deeply undesirable (paragraph 34);
d) the Committee remains of the view that there is a significant risk that the powers under Part 4 violate the right to be free of discrimination under ECHR Article 14 because they have a particular impact on only one part of the resident community of the United Kingdom (namely those who are not nationals of the United Kingdom) on the ground of nationality (paragraph 35);
e) a more satisfactory legal framework is urgently required which would be both effective and compatible with the United Kingdom's human rights obligations including full compliance with ECHR Article 5 (paragraph 36);
f) the Committee is not persuaded that it is appropriate to renew Part 4 when there is no end in sight to the "emergency" by reference to which the exceptional powers were considered to be justified (paragraph 37);
g) if the Government argues that it is necessary to continue Part 4 in force, it should be for a period of no more than six months, and the Government should give a firm undertaking that it will actively seek, as a matter of priority, a new legal basis for its anti-terrorism to be put in place speedily and in accordance with the principles developed in the Newton Committee Report (paragraph 37);
h) if the Government persuades Parliament that the powers should be continued, it should publish anonymised information about each individual Part 4 certification and the number of detentions there have been under the Terrorism Acts and their outcomes (paragraph 38);
i) the Committee supports the recommendations of Lord Carlile for improving the way in which the current procedures operate while they continue to have effect, subject to the outcome of appropriate consultations with the Bar Council and the Law Society on the ethical implications of requiring a Special Advocate to continue to act without the support of the appellant (paragraph 39);
j) the Committee draws the attention of each House to the substantial concerns expressed in its earlier reports on this Part of the Act, summarised in paragraphs 19 and 20 below, not least the need to ensure that detainees' conditions of detention reflect their status as people who have been neither charged with nor convicted of any offence (paragraph 40).
In relation to the Newton Committee's recommendations on other parts of the Act:
k) the Committee endorses the recommendations of the Newton Committee that freezing orders for specific use against terrorism should be addressed again in primary legislation and that such orders for other emergency situations, and the safeguards which should accompany them, should be reconsidered on their own merits in the context of more appropriate legislation for emergencies (paragraphs 41 to 43);
l) the Committee welcomes the Newton Committee's analysis of provisions on disclosure of information, and endorses its recommendations for independent external oversight of the whole disclosure regime and for prior authorisation by a senior person in terrorism cases and by a judge in other cases (paragraphs 44 to 47);
m) the Committee accepts the Newton Committee's conclusion that there was no reason to object to the provisions in Part 8 of the Act on security in the nuclear industry, in the light of assurances which the Government had given about the way in which the provisions would operate (paragraphs 48 to 49);
n) the Committee endorses the views of the Newton Committee that police powers conferred or extended by Part 10 of the Act to identify people and to retain fingerprints indefinitely ought not to have been included in emergency legislation, and should be limited to cases where a person has been charged with an offence, or is authoritatively certified as being of ongoing importance in a terrorist investigation (paragraphs 50 to 52), and that the power to remove and confiscate disguises should be limited to situations where a senior police officer believes that the measure is necessary in response to a specific terrorist threat (paragraphs 53 to 55);
o) the Committee endorses the conclusion of the Newton Committee that: retention of and access to communications data should be based on a coherent statutory framework, which should be part of mainstream legislation rather than terrorism legislation; retention should be limited to one year; and the whole retention and access regime should be subject to unified oversight by the Information Commissioner (paragraphs 56 to 59 below).