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
