Joint Committee On Human Rights Sixth Report

2 The Report of the Committee of Privy Councillors

The main arguments and conclusions of the Newton Committee

10. The Newton committee was concerned about the speed with which the Bill passed both Houses, and the difficulties each House faced in subjecting the Bill to proper scrutiny.[5] The committee was also conscious of a tendency for unnecessary or ineffective powers to be taken by governments in response to a terrorist threat merely in order to be seen to be doing something, with the result that legislation is passed which is either unused, unusable, or used for a purpose other than that originally offered as a justification for it.[6]

11. The Newton committee therefore developed some principles to govern the enactment and review of anti-terrorism legislation. These include the following propositions:

a)  such legislation should form a coherent whole, in which the need for security is properly balanced with the rights to liberty and privacy;

b)  counter-terrorism law should be kept distinct from mainstream criminal law, limited to dealing with terrorism, accompanied by tailored safeguards, and consistent with the counter-terrorism policies agreed and coordinated by the international community;[7]

c)  provisions not directly related to terrorism should be reviewed in the context of the areas of practice and law to which they properly related, instead of being swept up in an emergency Act justified by reference to a threat of terrorism;

d)  Parliament should be able to review the Act as a whole at regular intervals.

12. The Newton committee singled out a number of areas in which it considered that the Act was defective, and made recommendations including:

a)  changes to the procedure for forfeiting suspected terrorist property to protect sensitive security-related information (paragraph 124);

b)  repealing or improving the practicability of provisions for bank account monitoring orders (paragraph 127 ff);

c)  improving the mechanisms for sharing information about terrorist financing to make it easier to comply with reporting requirements (paragraph 132 ff);

d)  allowing additional protection for the privacy of innocent individuals affected by reporting requirements imposed on the financial industry (paragraph 134 ff);

e)  putting orders freezing assets thought to be intended for use in terrorism on a basis contained in primary legislation, and separating the legal basis for such orders from that for freezing orders in other emergencies (paragraph 146 ff);

f)  providing additional oversight and monitoring of disclosure of information by public bodies to guard against abuse (paragraphs 53 and 160 ff);

g)  replacing the detention provisions in Part 4 of the Act with a new regime which deals with all suspected terrorists and does not require a derogation from the ECHR (paragraphs 185 ff);

h)  taking a more proactive approach to deciding when it is possible to release people who have already been detained (paragraph 200), and publishing more information about the use of the detention power (paragraph 258);

i)  reconsidering enhanced sentences for religiously aggravated offences in the context of legislation to protect targets of hate crime (paragraph 267 ff);

j)  increasing the controls over pathogens and toxins which can be used as weapons (paragraph 294 ff);

k)  enhancing regulation of radioactive sources and parliamentary scrutiny of the regulation (paragraph 310 ff);

l)  putting extended police powers, which have mainly been used in non-terrorism cases, in the legislative context of police powers generally, rather than in a terrorism context (paragraph 333 ff), and protecting the privacy of innocent people through appropriate safeguards (paragraph 341 ff);

m)  putting the regime for retention of communications data under Part 11 of the Act into a mainstream data retention regime within a coherent legislative framework with time limits set by primary legislation, with strict regulation of access to data and oversight by the Information Commissioner (paragraphs 396 ff);

n)  radically simplifying the law of bribery and corruption (paragraph 421); and

o)  repealing the power to amend the primary legislation by order under section 124 of the Act (paragraph 442).

13. We welcome the report of the Newton Committee, and also the opportunity for Parliament to reconsider the Act in the light of mature reflection and experience which was not available when the Act was originally passed.

14. We endorse the principles on which the report is based, namely:

a)  that the individual has a right to liberty and to privacy; and

b)  that the authorities have a duty to take the steps necessary to protect society from terrorism (page 8).

15. We endorse the discussion of the application of these principles in the report (paragraphs 79-91).

Human rights issues arising from the report

16. The Newton Committee report identifies a number of issues which are either expressed in terms of compliance with human rights or have distinctive human rights implications. These relate to Parts 2, 3, 4, 8, 10 and 11 of the Act. We consider first the Newton Committee's recommendations relating to Part 4, together with Lord Carlile of Berriew's report on the operation of Part 4 in 2003 and the draft Continuance Order. We then consider the human rights implications of those parts of the Newton Committee Report which relate to Parts 1, 2, 8, 10 and 11 of the Act (paragraphs 41-59 below).

5   Newton Committee Report, op cit., p. 5. Back

6   ibid., para. 107. Back

7   ibid., para. 2. Back

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