Joint Committee On Human Rights Sixth Report

1  Introduction

The various statutory reviews of the Anti-terrorism, Crime and Security Act 2001

1. The Anti-terrorism, Crime and Security Act 2001 was passed at great speed by both Houses in the wake of the attacks on the World Trade Centre and other targets in the USA on 11 September 2001. The Act contained a number of provisions affecting human rights. One such set of provisions, sections 21 to 23 in Part 4 of the Act, provides for the indefinite detention without charge of people certified by the Secretary of State as being suspected of links to international terrorism, if they are not United Kingdom nationals and cannot be removed from the country for practical or legal reasons. The Government accepted that this is incompatible with the right to liberty of the person under ECHR Article 5, and that it necessitated a derogation from that right under Article 15 of the ECHR.

2. At a late stage in its passage through Parliament, a number of safeguards were inserted in the Bill. One of these is the 'sunset' clause which became section 29(1) of the Act. It provides that Part 4 of the Act will cease to operate at the end of 10 November 2006. Before that date, Part 4 was to cease to operate fifteen months after the Act received the Royal Assent, unless renewed earlier for a period of no more than one year by a statutory instrument made by the Secretary of State under section 29(2) and (3) of the Act. Further orders can renew Part 4 for subsequent periods of no more than one year, up to 10 November 2006, are permitted. Before the Secretary of State may make an order, section 29(3)(b) requires that a draft order has to be laid before each House and approved by both Houses by an affirmative resolution (except in cases of urgent necessity, when an order may be made temporarily under section 29(4) without first being laid and approved in draft).

3. Parliament thus has an annual opportunity to debate the continuance of the powers in Part 4 of the Act. As an additional safeguard, and in order to inform the debate, section 28 of the Act requires the Secretary of State to appoint a person to review the operation of the certification and detention provisions, who must report at least one month before the date when the provisions are due to expire if not renewed. This task is performed by Lord Carlile of Berriew QC. His report on the operation of sections 21 to 23 in 2003 was published on 11 February 2004.[1]

4. In addition, section 122 of the Act provided that the whole Act was to be subject to a single, comprehensive review by a committee of Privy Councillors appointed by the Secretary of State, which was to report to the Secretary of State not later than 13 December 2003, two years after the Act was passed. The committee's report was to be laid before Parliament. This task was undertaken by a committee under the chairmanship of Lord Newton of Braintree. After taking evidence and deliberating through much of 2003, it reported in December 2003. Its report was laid before Parliament on 18 December 2003.[2]

5. Section 123 of the Act allowed the committee of Privy Councillors to specify any provision of the Act as one which is to cease to have effect six months from the day on which the committee's report was laid before Parliament, unless the Committee's Report had first been debated by each House. The Committee was so concerned about the speed with which the Act had been passed and the lack of fit between the Act and other legislation in related areas that it designated the whole Act for the purpose of section 123.[3] The committee stressed that this was to enable Parliament to review the report and the Act as a whole, and made it clear that there were many parts of the Act which the committee considered to be unexceptionable.

6. As a result, the whole Act will automatically cease to have effect in June 2004 unless, before the relevant date, each House holds a debate on the committee's report. The House of Commons is expected to debate the report on 25 February 2004, and the House of Lords is expected to do so in the first week in March.

7. After our initial consideration of the committee's report, our Chair wrote to the Home Secretary on 21 January 2004 asking a number of questions about the Government's intentions in the light of it. The Home Secretary responded in a letter dated 6 February 2004.[4]

The draft Anti-terrorism, Crime and Security Act 2001 (Continuance in Force of Sections 21 to 23) Order 2004

8. The Home Secretary has laid before each House the draft Anti-terrorism, Crime and Security Act 2001 (Continuance in Force of Sections 21 to 23) Order 2004, to continue sections 21 to 23 in force for a further twelve months from 14 March 2004. A standing committee of the House of Commons is expected to consider the draft Continuance Order on 26 February 2004, and the House of Lords is expected to debate the draft order in the first week in March.

Our report

9. We have considered the Newton Committee report, the report by Lord Carlile of Berriew QC, and the draft Continuance Order, and now report our conclusions on their human rights implications to each House in the hope that it will help to inform the debates on the Newton Committee report and the draft Continuance Order in the two Houses from a human rights perspective.

1   Lord Carlile of Berriew QC, Anti-terrorism, Crime and Security Act 2001 Part IV Section 28 Review 2003 (February 2004), hereafter the "Carlile Report". Back

2   Privy Councillor Review Committee, Anti-terrorism, Crime and Security Act 2001 Review: Report, HC 100 (December 2003), hereafter the "Newton Committee Report". Back

3   ibid., paras. 12-13. Back

4   Appendices 1 and 2 below. Back

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Prepared 24 February 2004