Joint Committee On Human Rights Sixth Report

3 The Draft Continuance Order 2004


17. Part 4 contains some of the most controversial aspects of the 2001 Act. It is also the one which raises the most intense problems of compatibility with human rights, and led to a derogation by the United Kingdom from the right to liberty of the person under ECHR Article 5. Part 4 contains the power in sections 21 to 23 of the Act to detain a person indefinitely without any criminal charge, let alone a trial, if:

a)  the Secretary of State has certified that he reasonably believes that the person is a terrorist (including in this category anyone who 'has links with an international terrorist group');

b)  the person is a foreign national; and

c)  for legal or practical reasons, the person cannot be removed from the United Kingdom.

18. In order to avoid a situation in which this detention would be held to amount to a violation of the right to liberty of the person under ECHR Article 5.1, the Secretary of State made a derogation order under section 14 of the Human Rights Act 1998 designating a derogation from Article 5 for the purpose of combating the threat of terrorism as one of the derogations to which the Convention rights are subject under section 1 of that Act. The Government subsequently gave notice to the Secretary General of the Council of Europe that it considered that sections 21 to 23 of the 2001 Act were a justifiable derogation under Article 15 of the ECHR, on the ground that the terrorist attacks on the USA in September 2001 showed that there was a public emergency threatening the life of the nation and the measures derogated from the United Kingdom's obligations under Article 5 no further than was strictly required by the exigencies of the situation and consistently with the United Kingdom's other obligations under international law. An equivalent notice of derogation was given under the International Covenant on Civil and Political Rights, Article 4, in respect of the right to liberty of the person under Article 9. No other State party to the Convention or the International Covenant has made such a derogation in the wake of 11 September 2001.


19. When we considered the derogation and this Part of the Bill in 2001, we noted that we had not been shown any evidence of a public emergency threatening the life of the nation, although we accepted that there might be such evidence. We considered that the safeguards attached to the powers were insufficient to ensure that the measures in the Bill could be said to be strictly required by the exigencies of the situation.[8] We also drew attention (a) to the risk that the provisions would unlawfully discriminate on the ground of nationality, since only foreign nationals would be liable to be detained,[9] (b) to the need for stronger procedural protections for appellants before the Special Immigration Appeals Commission and the courts, and (c) to the need for more frequent reviews of detention.[10] In addition, we drew attention to a number of other procedural problems.

20. The sections were to cease to have effect after fifteen months (in March 2003) unless continued by affirmative resolution of each House. In preparation for the debate, Lord Carlile of Berriew QC conducted a statutory review of the operation of sections 21 to 23.[11] We then reported to each House on its view as to the propriety of continuing the operation of the sections.[12] We adopted the following position:

a)  we expressed doubts about the compatibility of the derogation with the Convention;[13]

b)  we took the view that the derogation was likely to have been valid and effective in municipal law under the Human Rights Act 1998, although we considered that it had not been proper to make the order in the abstract, before the detailed provisions to which it related had been endorsed by Parliament;[14]

c)  we recognised that it was for the courts to decide whether the detention of particular suspects was vitiated by unlawful discrimination;[15]

d)  we repeated its earlier recommendation, and endorsed that of Lord Carlile of Berriew, that the nature of the "links" with international terrorism sufficient to form the basis of a certificate made by the Secretary of State should be clarified;[16] and

e)  we came to the conclusion that the two Houses could legitimately rely on the review by Lord Carlile of Berriew and decide that the measures were being operated fairly,[17] although we drew attention to systemic weaknesses in the protection for human rights, which might properly be reasons for refusing to continue the measures in force, stemming from:

i)  the time it had taken the Special Immigration Appeals Commission to hold any substantive hearing into the merits of the detainees' appeals;[18]

ii)  the shortage of properly qualified, high-quality legal advice available to detainees;[19]

iii)  doubts as to whether evidence was being categorized as "open" or "closed", for the purpose of withholding it from appellants and their legal advisers, in a way that properly reflected the importance to procedural due process of withholding evidence from parties only when making it available would compromise the effort to protect the public against the national emergency which gave rise to the derogation under ECHR Article 15 and justified the detention;[20]

iv)  concern to ensure that the services of the special advocate, who could see and make submissions in the detainees' interests about 'closed' material, would be able to participate in proceedings in the Court of Appeal and House of Lords on appeal from the Special Immigration Appeals Commission;[21] and

v)  concern to ensure that the detainees' conditions of detention should reflect their status as people who have been neither charged with nor convicted of any offence.[22]

21. In the event, the operation of the powers was extended for twelve months from March 2003, and the two Houses must now consider whether to renew them again for a further twelve months.

The views of the Newton Committee on Part 4 of the Act

22. The Newton Committee drew attention to a number of features of Part 4 of the Act which, in its view, make it an inappropriate basis for continuing to deal with the threat from international terrorists. Several of these features stem from the fact that the detention power is based on immigration law, rather than being a measure specifically designed for the needs of counter-terrorism. There are objections of principle, namely:

a)  the need for the United Kingdom, alone among Council of Europe member states, to derogate from Article 5 of the ECHR; and

b)  the indefinite period for which detention can continue; and the fact that selective use of a power such as this opens the door to arbitrary action.[23]

23. The Newton Committee thought that there were also objections relating to efficacy, since the terrorist threat is not limited to foreign nationals.

24. Finally, the Newton Committee thought that there was evidence of a lack of proactive, focused, case-management in determining whether any particular detainee should continue to be detained.[24]

25. The Newton Committee considered the shortcomings to be sufficiently serious to allow it to recommend strongly that the provisions of Part 4 should be replaced as a matter of urgency. The Committee recommended that new legislation should deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators, and should not require a derogation from the ECHR.[25]

The Home Secretary's views

26. These factors are relevant to the continuance in force of sections 21 to 23 of the Act after 13 March 2004. Our Chair therefore asked the Home Secretary for the Government's response. The Home Secretary replied, "The need for these powers will continue to exist whilst the public emergency remains and whilst we are unable to take action to remove suspected international terrorists". However, he continued, "It is not possible to predict for how long the current state of public emergency will continue to subsist".[26] The Home Secretary told us he plans to launch a consultation exercise on possible measures to replace or complement the detention powers, looking towards a possible reform "in the longer term" (answers to questions 2 and 4).[27] It is clear that no developed proposal will be ready before the debates take place in the two Houses.

27. In a written statement made by the Home Secretary on 20 January 2004 when he laid the draft Continuance Order before each House, he said that the detention powers in Part 4 of the Act "are a cornerstone of the UK's anti-terrorism measures. It is essential that we are able to take firm, swift action against those who threaten the safety of this country….[W]e continue to believe that the Part 4 powers are a necessary and proportionate response to the current threat".[28] He disclosed that 16 people had been detained under the Part 4 powers. Two had subsequently left the country. The Special Immigration Appeals Commission (SIAC) had rejected appeals by ten detainees, and judgment is awaited in respect of two more.

28. In his letter to our Chair, the Home Secretary informed us that he did not accept the criticisms made by the Newton Committee about the management of individual cases. In his written statement of 20 January 2004 he had already stated, "My decisions to certify and detain these individuals were made on the basis of detailed and compelling evidence".[29] In his letter, he further assured us that the cases had been fully considered again in preparation for the detainees' appeals to the SIAC, and that the individual cases were kept actively under review, a process which had led to one detainee being convicted on criminal charges and another currently being prosecuted. He pointed out that some delay had occurred in getting individual cases heard by SIAC as a result of the need to litigate the lawfulness of the derogation from rights under ECHR Article 5 as a preliminary issue, and mentioned that some difficulty was being experienced in returning detainees to their countries of origin because SIAC had imposed an order requiring the detainees' anonymity to be maintained.[30]

Lord Carlile's Report on the operation of sections 21 to 23 in 2003


29. Lord Carlile begins his report by pointing out that he is required to report on the operation of sections 21 to 23 of the Act on the premise that they are in effect, whereas the Newton Committee was required to advise as to whether they considered that those sections should remain in effect.[31] He referred to comparisons with other countries which he had undertaken, and mentioned the risk of '"function creep"—the tendency of the control authorities such as the police to want to use information provided for counter-terrorism purposes in a wider context.[32]

30. Lord Carlile noted that we had not been persuaded in 2001 that the conditions for the derogation had been met, but that the SIAC and the Court of Appeal had concluded that they were met, although the matter is subject to an appeal to the House of Lords in which judgment is expected early in the Spring of 2004. He also commented on the fact that the detention provisions "are wide in their scope and have a significant impact on a particular group of the resident community … who do not hold British nationality".[33] He agreed with a view expressed by the SIAC that grounds for detention which may be reasonable for an arrest and a short period of detention "may be insufficient for indefinite detention. Taking into account all the circumstances as one should, the passage of time may alter significantly the threat posed by an individual or even a group or former cell".[34]

31. Lord Carlile noted that the Government had rejected his suggestion, in his report last year, that the "links" to international terrorism which would justify detention under section 21(2) and (4) of the Act should be clarified. He accepted the rejection, and drew attention to the judgment of the SIAC that it is possible, within the scope of the SIAC's powers under section 25, to allow a detainee "to contend that even if what is said against him were true, recourse to so draconian a power was disproportionate in the light of other circumstances".[35] Lord Carlile considered that this set the notion of "links" in "an acceptable context".[36]


32. After a full and careful examination of the operation of the whole of the procedure for operating sections 21 to 23 of the Act, Lord Carlile concluded that:

a)  "there remain in the United Kingdom individuals and groups who pose a present and real threat to the safety of the public here and abroad";[37]

b)  in every individual case, the criteria for detention were met;[38]

c)  civil servants in the Home Office exert pressure to decrease rather than increase the level of detentions;[39]

d)  criminal charges are being brought whenever possible (although not necessarily for terrorism-related offences), in order to bring the detention into line with conventional ideas of lawfulness and due process: like the Newton Committee, Lord Carlile considered (as we do) that normal criminal proceedings should be the preferred approach;[40]

e)  the Home Secretary considers each case in an active and inquiring way;[41]

f)  appropriate levels of political executive judgment are generally being applied to certification decisions;[42]

g)  there is, however, a tendency to over-estimate the risk that a person would be exposed to the risk of death, torture, or inhuman or degrading treatment or punishment, in violation of ECHR Article 2 or 3, if returned to his or her country of origin; the Foreign and Commonwealth Office is inclined to rely on a generic assessment of risk in a country, rather than to enter into bilateral discussions with the country as to the likely experience of the people being considered for removal to that country; and the Government should investigate the possibility that in some cases it might be possible to return a person to his or her country of origin, avoiding the need for indefinite detention in this country;[43]

h)  overall, the SIAC procedure is proceeding according to "a determined and managed timetable" (albeit one which faces delays because of the preliminary litigation over the lawfulness of the derogation from ECHR Article 5 rights and a possible future application to the European Court of Human Rights); it "operates effectively and proportionately to the risks of national security, especially in the light of the disclosure and hearing constraints applicable";[44]

i)  the statutory review periods, which we had considered to be insufficiently frequent, have not caused difficulties to the SIAC;[45]

j)  at present a detainee who leaves the country cannot continue his or her appeal from outside the country; the Act should be amended to allow such a person to protect his or her future position by continuing an appeal on the merits against certification from outside the country;[46]

k)  the Special Advocates (who represent the interests of appellants in relation to material which is too sensitive to be disclosed to the appellants or their legal advisers) have done a good job within the scope of their powers, and "the special advocate procedure works reasonably well to achieve its purpose of assisting SIAC to reach decisions correct in fact and law";[47]

l)  however, as the shortage of Special Advocates has delayed hearings, there should be—

i)  organised training opportunities at which Special Advocates can share problems and develop common approaches to procedural and ethical issues, and receive training,

ii)  a security-cleared assistant in every case to help the Special Advocate, for example by categorising papers and acting as a conduit of information, and

iii)  a widening in the range of people who are appointed as Special Advocates beyond the ranks of those with specialist knowledge in administrative law, for example by including people with expertise in the practise of criminal law;[48]

m)  it should be made clear that the Special Advocate should continue to represent the interests of the appellant in closed proceedings before the SIAC even if the appellant instructs his or her representatives to withdraw from the open proceedings;[49]

n)  those in authority should consider whether Special Advocates should have greater access to the appellants in relation to the closed material, to assist the Special Advocates in the performance of their duties and the SIAC in its procedure;[50]

o)  as much relevant information as possible should disclosed;[51] but that

p)  taken as a whole, the present system is "workable and working reasonably well".[52]

Our conclusions in the light of the two reports

33. We consider that the reports of the Newton Committee and Lord Carlile in relation to Part 4 of the Act are valuable and complementary. In the light of them, and of our previous scrutiny of the Act and its operation, we have come to the conclusion there are serious weaknesses in the protection for human rights under Part 4. We continue to doubt whether the very wide powers conferred by Part 4 are, in Convention terms, strictly required by the exigencies of the situation.

34. Like the Newton Committee, we have grave concerns about long-term detention without trial on the basis of suspicion of links with international terrorism, necessitating an indefinite derogation from the important right to liberty under ECHR Article 5. Insufficient evidence has been presented to Parliament to make it possible for us to accept that derogation under ECHR Article 15 is strictly required by the exigencies of the situation to deal with a public emergency threatening the life of the nation. Even if the derogation were found by the courts to be justified under Article 15 we would still consider it to be deeply undesirable.

35. We remain deeply concerned about the human rights implications of making the detention power an aspect of immigration law rather than anti-terrorism law. We agree with the Newton Committee that applying the power only to people who are not United Kingdom nationals reduces its efficacy as an anti-terrorism tool, and with Lord Carlile that it has a particular impact on one part of the resident community. We have previously expressed the view that this means that Part 4 is incompatible with the right to be free of discrimination in the enjoyment of Convention rights under ECHR Article 14. The SIAC took the same view, but the Court of Appeal considered that the difference of treatment was justifiable as having an objective and rational justification. Until the matter is finally and authoritatively settled (which may require an application to the European Court of Human Rights in Strasbourg) we remain of the view that there is a significant risk that Part 4 violates the right to be free of discrimination under ECHR Article 14.

36. As both the Newton Committee and Lord Carlile accept, we are convinced that there is a need for other measures to respond to the threat of terrorism. While we note that Lord Carlile has found that the certification and detention of those detained so far under Part 4 was fully in accordance with the statutory criteria, and that the SIAC is capable of applying those criteria in a proportionate and context-sensitive way, provided that it acts in accordance with the requirements of Article 6 of the Convention; and while we appreciate that at least some of those who are currently in detention may pose a threat which would make it undesirable to release them while a search is taking place for an alternative; we are nevertheless certain that 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 Article 5 of the ECHR.

37. We are not persuaded that it is appropriate to renew Part 4 when there is no end in sight of the "emergency" by which these exceptional powers were considered to be justified. If the Government argue that it is necessary to continue Part 4 in force this should be limited to six months and should be subject to a firm undertaking that the Government will actively seek, as a matter of priority, a new legal basis for its anti-terrorism tactics to be put in place speedily and in accordance with the principles developed in the Newton Committee Report.

38. In the event that the Government persuades Parliament that these exceptional powers should be continued, we support the recommendation of the Newton Committee that the Government should publish up-to-date, anonymised information about each individual Part 4 certification and the number of detentions there have been under the Terrorism Acts (including the Terrorism Act 2000 as well as the 2001 Act) and their outcomes (for example prosecution, certification under Part 4, release, etc.).[53] This would help Parliament to assess the continuing need for these, or other, measures, as well as providing a degree of openness for the process which could be a safeguard for the human rights of detainees.

39. We also support the recommendations of Lord Carlile for improving the way in which the current procedures operate while they continue to have effect, particularly those noted above in paragraph 32 g), j), l), m) (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), n) and o).

40. Finally, we draw the attention of each House once more to the substantial concerns which we expressed in our earlier reports on this Part of the Act, summarised in paragraphs 19 and 20 above, not least to those in paragraph 20(e)(v) about which we believe there are real grounds for anxiety.

8   Joint Committee on Human Rights, Second Report of Session 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37, HC 372, para. 30. Back

9   ibid., paras 38-39. Back

10   ibid., paras. 49-50. Back

11   Anti-terrorism, Crime and Security Act 2001, Part IV section 28 Review by Lord Carlile of Berriew QC, February 2003. Back

12   Joint Committee on Human Rights, 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. Back

13   ibid., paras. 18-22. Back

14   ibid., paras. 23-27. Back

15   ibid., paras. 28-33. Back

16   ibid., paras. 34-35. Back

17   ibid., paras. 36-38 and 53-54. Back

18   ibid., paras. 39-41. Back

19   ibid., para. 42. Back

20   ibid., paras. 43-48. Back

21   ibid., paras. 49-50. Back

22   ibid., paras. 51-52. Back

23   Newton Committee Report, paras. 186-191. Back

24   ibid., paras. 192-201. Back

25   ibid., para. 203. Back

26   See Appendix 2, reply to question 1, pp. 28-9. Back

27   See Appendix 2, reply to questions 2 and 4, pp. 29-30. Back

28   HC Deb., 20 January 2004, c 56WS. Back

29   HC Deb., 20 January 2004, c 56 WS. Back

30   See Appendix 2, reply to question 3, p. 29. Back

31   Carlile Report, p. 4, para. 7. Back

32   ibid., pp. 5-6, para. 11. Back

33   ibid., p. 7, paras 18 and 21. Back

34   ibid., p. 9, para. 25, citing Ajouau and A, B, C and D [2003] Appeal Nos. SC/1/2002; SC/6/2002; SC/7/2002; SC/10/2002, SIAC judgment of 29 October 2003 (hereafter 'the generic judgment'), paras. 46-48. Back

35   Generic judgment, para. 24. Back

36   Carlile Report, p. 12, paras. 33-35. Back

37   ibid., p. 13, para. 42. Back

38   ibid., p. 12, para. 36. Back

39   ibid., pp. 12-13, para. 38. Back

40   ibid., p. 27, para. 101 and p. 30, para. 113. Back

41   ibid., p. 13, para. 39. Back

42   ibid., p. 13, para. 40. Back

43   ibid., pp. 25-26, paras. 94-96 Back

44   ibid., p. 17, paras. 55-57. Back

45   Ibid., p. 17, para. 62. Back

46   ibid., p. 18, para. 66. Back

47   ibid., p. 23, para. 85. Back

48   ibid., pp. 20-21, paras. 69-75. Back

49   ibid., p. 22, para. 80. Back

50   ibid., p. 22, para. 81. Back

51   ibid., p. 23, paras. 84 and 86-89. Back

52   ibid., p. 31, para. 123. Back

53   Newton Committee Report, para. 258. Back

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