2. Response from Rt Hon David
Blunkett MP, Secretary of State for Home Affairs, to the Chair
Draft anti-terrorism, Crime and Security Act 2001
(Continuance in force of sections 21-23) Order 2004 and Report
of the Newton Committee
Thank you for your letter of 21 January.
I should say at the outset that arrangements for
the two debates are still being finalised, but we expect that
both debates will take place in the week commencing 23 February.
It would be immensely helpful if your Committee could report before
that timescale, and I hope that my responses below to your questions
will help this. I know my officials would be very willing to answer
any follow up enquiries which may help you to produce your Report.
Turning to the questions:
1. Since the powers contained in sections
21 to 23 of the Act were determined by Parliament to be so exceptional
as to be justified only on a temporary basis, and subject to annual
renewal, have you formed any view as to how long you consider
that this state of emergency is likely to persist, and in what
foreseeable circumstances the need for these powers will cease
to exist?
It is not possible to predict for how long the current
state of public emergency will continue to subsist. I have recently
reviewed the position, based on an updated assessment of threat.
I am satisfied that there is a continuing state of public emergency
threatening the life of the nation and that the powers are strictly
required by the exigencies of the situation and are proportionate.
The attacks in November, against British interests
in Istanbul gives further evidence of the continuing threat posed
by Al Quaida.
Both the Special Immigration Appeals Commission and
the Court of Appeal have upheld the Home Secretary's conclusion
that there is a public emergency threatening the life of the nation
within the terms of Article 15 of the ECHR. Whilst the Commission
considered that the provisions of the Act were incompatible with
Articles 5 and 14 ECHR, in so far as they permitted detention
of suspected international terrorists in a way that discriminated
against them on the ground of nationality, the Court of Appeal
reversed that decision. The House of Lords has granted permission
to appeal.
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, for
example, if deportation would result in treatment contrary to
ECHR Article 3 within their countries of origin.
2. Do you intend to respond formally and in
writing to the comments of the Newton Committee, at least so far
as they relate to Part 4, before you invite Parliament to agree
the draft Order relating to Part 4 of the Act?
The Newton report specifies the whole of the ATCS
Act 2001 under the section 123 provisions. This means that the
whole of the Act must be debated. We therefore need to debate
both the renewal of the part 4 powers and the "Newton Report".
I am giving careful consideration to the recommendation of the
report and intend to issue, at the time of the debate, a discussion
paper on the Part 4 powers. The discussion paper on Part 4 is
important. Unlike the coverage of my comments in Pakistan suggests,
there is no settled solution to the way in which we will seek
to improve the current way in which we detain foreign nationals
without charge suspected of terrorism. There are a range of options,
which need careful exploration, and I want an open, transparent,
debate about this, which will be assisted by the discussion paper
I propose to publish. I would very much welcome the JCHR's thoughts
on the ideas in the Paper.
3. In particular, how do you intend to respond
to the criticisms of that Committee concerning the management
of the cases of the individuals detained under the Part 4 powers,
and the lack of evidence of active efforts to find alternatives
to continued detention?
I should say that I do not accept the criticisms
made by the Newton Committee about the individual management of
the cases. The first tranche of individual appeals (to date all
eleven appeals have been dismissed) took longer to come before
SIAC because of the legal challenges made by the appellants to
the derogation that had to be heard first.
In the preparation for the individual appeals each
of the cases was fully considered. This included the threat posed
by the individual, the ability to deport and any changes in circumstances.
The individual cases are kept actively under review.
One individual has been convicted on criminal charges and another
is currently being prosecuted—both cases based on evidence
that came to light after certification.
We are actively pursuing a broader policy of seeking
removal whilst ensuring that rights of the individual, and the
UK's obligations under ECHR are not breached. The individuals
are of course free to leave the country at any time should they
choose to do so. I should say that we are experiencing some trouble
convincing origin countries to accept back detainees because of
the anonymity order imposed by SIAC in relation to the detainees'
identity.
The first set of reviews—six months after the
determination of the appeals—will start in April, with subsequent
reviews conducted at three monthly intervals. The reviews will
reassess all of this information as well as any new information
on the detainees, including a threat assessment and any changes
that there may be in ability to remove.
The detainees can of course apply for bail at any
time.
4. If you consider that there is no foreseeable
end to the state of emergency that you believe necessitates the
continuation of these powers, what active consideration are you
giving to finding alternative means of achieving the ends you
seek which would obviate the need for the continuation of the
derogation and would be able to be passed in a form which Parliament
might consider appropriate to agree to on a long-term basis?
We are already looking at whether there are new measures
that we could take, and or refinements that could be made to existing
provisions. As I've mentioned, I will be issuing a paper to coincide
with the debates, outlining a range of possible options that we
could take in the longer term.
5. The meaning of section 123(3) of the 2001
Act, relating to the effect of any "motion ... passed in
each House of Parliament considering the report" is unclear.
How do you interpret its effect? Is it your intention to table
a substantive motion which will enable each House to express approval
or disapproval of the recommendations of the Committee of Privy
Councillors in relation to the separate provisions of the Act?
And how do you intend to respond to any decision of either House
which indicates disapproval of the continuance in force of any
provision of the Act?
I am clear that section 123(3) would be satisfied
if, within the period specified in section 123(2), a motion is
made in each House that it considers the report.
In this context, a motion along the lines that you
suggest (that is one that seeks approval or disapproval of the
recommendations of the Committee in relation to the separate provisions
of the Act) would fall outside section 123(3). Accordingly, any
such motion would not secure the continuance in force of the 2001
Act.
It follows that, under the motion which section 123(3)
requires, there will be no decision of either House indicating
disapproval of the continuance in force of particular provisions
of the 2001 Act. There will only be expressions of opinion by
individual speakers. As I understand it, therefore, I do not think
it will be necessary to respond to any decision of the House in
the way you describe.
I hope this is helpful, and I do hope we will be
able to engage with you in the important matters raised by the
forthcoming debates, particularly in relation to the Part 4 provisions.
6 February 2004
