House of Commons - Explanatory Note
Anti-Terrorism, Crime And Security Bill - continued          House of Commons

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Suspected international terrorists

Clauses 21 to 23

73.     These three clauses extend the application of existing detention powers under the Immigration Act 1971 (the "1971 Act") to cases where the Secretary of State is seeking to remove a suspected international terrorist but where such removal is not currently possible.

74.     Although there are powers to detain people where the intention is to remove them, case law in the UK is that if removal is not going to be possible within a reasonable period of time, detention will be unlawful. Similarly, the European Court of Human Rights has established that the relevant part of Article 5(1)(f) of the European Convention on Human Rights (ECHR) permits the detention of a person only in circumstances where action is being taken with a view to deportation.

75.     The Government has concluded that, following the events of 11 September 2001 in the USA, there is a heightened threat from international terrorists, and that a public emergency exists in the UK. It has further concluded that in these circumstances action in the form set out in clauses 21 to 23 needs to be taken to safeguard national security against the threat posed by international terrorists whom the UK wishes to but cannot remove.

76.     Clauses 21 to 23 enable suspected international terrorists to be detained in circumstances where either a legal impediment derived from an international obligation or a practical consideration prevents removal. In parallel with these provisions, the UK intends to make a derogation from Article 5 of the ECHR (right to liberty and security) to the extent necessary to ensure that the measures contained in clauses 21 to 23 are not in breach of our obligations under the ECHR. Article 15 of the ECHR permits a derogation from Article 5 in a time of public emergency to the extent strictly required by that emergency.

77.     A designation Order under section 14(1) of the Human Rights Act 1998 was made on 11 November 2001 in anticipation of the making of a proposed derogation. This Order means that the Convention rights under the Human Rights Act 1998 have effect subject to the proposed derogation.

Clause 21 Suspected international terrorist: certification

78.     Clause 21 provides for the certification by the Secretary of State of a suspected international terrorist. A "suspected international terrorist" is defined as a person whose presence in the UK the Secretary of State believes to be a risk to national security and whom he suspects is an international terrorist. The clause also defines the terms "terrorism" (which is as defined in section 1 of the Terrorism Act 2000), "international terrorism" and "international terrorist". Domestic terrorism is excluded from the certification process because the Government has concluded that the nature of the public emergency is such that it would not be justified in applying the extended immigration detention powers to those involved in such terrorism.

Clause 22 Deportation, removal etc.

79.     Clause 22 lists, in subsection (2), actions which may be taken in respect of a suspected international terrorist despite the fact that those actions cannot at present result in the actual removal of that person because either a point of law relating to an international agreement or a practical consideration prevents this. The international agreement most likely to apply is the ECHR: case law from the European Court of Human Rights is clear that a person may not be removed where this would place them at a real risk of torture or inhuman or degrading treatment or punishment, contrary to Article 3 of the ECHR. There are no exceptions. By contrast the 1951 Convention and 1967 Protocol relating to the Status of Refugees (the "Refugee Convention") contains provisions which exclude from its protection people whom it would be possible for the Secretary of State to certify under clause 22.

80.     A "practical consideration" might be the unavailability of routes to the country of intended removal (there may, for example, be no commercial flights to that country) or a lack of appropriate travel documentation.

81.     The actions listed in subsection (2) relate to the refusal of entry, the refusal to vary leave to enter or remain, the giving of removal directions and various actions connected with deportation. This clause does not permit a person to be removed contrary to any international obligations but enables actions to be taken with a view to future removal which, but for the person being certified as a suspected international terrorist, the courts might be able to set aside. The reason it is necessary to enable such actions to be taken even though they cannot, for the time being, result in a removal is that the immigration detention powers are tied to such actions (see clause 23 below).

82.     Subsection (3) provides that where a certificate is made under clause 21 after one of the actions listed in subsection (2) has been taken, that action is to be treated as having been taken again. The purpose of this provision is to ensure that a court cannot set aside any of those actions once a certificate has been made, other than by cancelling the certificate itself (see clauses 25 and 26 below).

Clause 23 Detention

83.     Clause 23 provides that a suspected international terrorist may be detained under certain provisions in the 1971 Act even though their removal is temporarily or indefinitely prevented by a point of law relating to an international agreement or a practical consideration. These provisions are paragraph 16 of Schedule 2 to the 1971 Act (detention of persons liable to examination or removal) and paragraph 2 of Schedule 3 to that Act (detention pending deportation).

Clauses 24 to 27

84.     These four clauses set out the role of SIAC and the higher courts in overseeing the use of the extended detention powers provided for in clauses 21 to 23.

Clause 24 Bail

85.     Clause 24 is concerned with bail. Where an appeal is pending before it, SIAC is the body responsible for hearing bail applications. The effect of clause 24 is to give SIAC the jurisdiction to hear bail applications for so long as a suspected international terrorist is detained under a provision of the 1971 Act, including a provision as extended by this Part.

Clause 25 Certification: appeal

86.     Clause 25 provides for an appeal against the decision of the Secretary of State to make a certificate under clause 21. A person against whom such a certificate is made may appeal within three months of the date of the certificate against that decision to SIAC, which will consider whether or not it agrees with the Secretary of State's certification. If SIAC agrees with the Secretary of State's certificate it will dismiss the appeal; if it does not agree, or if it finds any other reason why the certificate should not have been issued, it will cancel the certificate, in which case the certificate will be treated as having never been made. For either outcome, there will by virtue of clause 27(1) be the right to seek leave to appeal to the Court of Appeal (or its equivalents in Scotland and Northern Ireland).

Clause 26 Certification: review

87.     Clause 26 provides that for so long as a suspected international terrorist remains in detention there will be an automatic review of the certificate by SIAC. This will happen six months after the appeal or previous review is completed. As with the appeal, SIAC will be able to cancel the certificate on review if it does not agree with the Secretary of State. There is also provision for the six-monthly review to be brought forward if SIAC considers that a change of circumstances warrants this.

Clause 27 Appeal and review: supplementary

88.     Clause 27 makes various supplementary provisions relating to the appeal and review. In particular, it provides that an appeal to the Court of Appeal (or its equivalents in Scotland and Northern Ireland) may be made on a point of law against a decision by SIAC in respect of an appeal or review of the certificate. It also provides that the Secretary of State is not prevented from issuing another certificate after the original one has been cancelled, (for example if new circumstances justify such action).

89.     As an appeal on the certificate may raise similar issues to those raised in the substantive appeal (that is, the appeal against any of the actions listed in clause 22 which have been taken against the individual concerned), subsections (7) and (8) provide that SIAC should make every effort to hear those two appeals together, and to avoid or minimise delay resulting from this.

Clause 28 Duration of clauses 21 to 23

90.     Clause 28 imposes time limitations on clauses 21 to 23. These clauses will expire fifteen months after Royal Assent unless the Secretary of State renews them by Order. Such an Order may only extend the life of the sections by up to a year. This order needs to be approved by a resolution in both Houses of Parliament. In addition, clause 28 enables the Secretary of State to repeal clauses 21 to 23 at any time.

Clauses 29 and 30

Clause 29 Exclusion of legal proceedings

91.     Clause 29 provides that proceedings to question the decisions or actions of the Secretary of State in making a certificate under clause 21 or any other actions or decisions taken by him under clauses 21 to 31 may not be entertained in any court or tribunal except as provided by a provision of this Part. In effect, this means that SIAC will be the first venue to hear such challenges. The clause also provides that decisions of SIAC in relation to any matter connected with clauses 21 to 27 may not be entertained in any court or tribunal except as provided by a provision of this Part.

92.     The intention of this clause is to ensure that legal challenges to the certification process are confined to SIAC and the statutory appeal routes that already exist for challenges to decisions by SIAC.

Clause 30 Legal proceedings: derogation

93.     Clause 30 is concerned with proceedings which to any extent challenge the UK's derogation from Article 5 of the ECHR or the designation under section 14(1) of the Human Rights Act 1998 which reflects that derogation. These are referred to as derogation matter. Clause 30 provides that where a derogation matter is raised, SIAC will be the only appropriate venue for hearing the proceedings, including those brought under section 7 of the Human Rights Act 1998. Ancillary provisions are made to enable SIAC to hear proceedings which, but for this clause, could be brought in the High Court or the Court of Appeal or the Court of Session; and to enable SIAC to award costs in relation to the derogation matter. An appeal against the decision of SIAC would go to the Court of Appeal (or its equivalents in Scotland and Northern Ireland).

Clause 32 Channel Islands and Isle of Man

94.     Clause 26 provides that clauses 21 to 30 may with appropriate modification be extended by Order in Council to any of the Channel Islands or the Isle of Man.

Refugee convention

Clause 33 Certificate that Convention does not apply

95.     Clause 33 introduces new arrangements for the consideration and associated appeal to SIAC of asylum claims made by certain individuals. These are individuals whom the Secretary of State has certified as being excluded from refugee status or not entitled to the protection of Article 33(1) of the Refugee Convention because Article 1(F) and/or Article 33(2) of that Convention apply, and whose removal from the UK would be conducive to the public good. Where such a certificate is made, SIAC will, in hearing the asylum appeal, be able to consider only the statements made in that certificate, and will not be able to consider whether a person has a well-founded fear of persecution.

96.     Article 33(1) - often termed the non-refoulement provision - prevents the removal of a refugee where this would lead to their life or freedom being threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. Article 33(2) provides an exception to this protection where there are reasonable grounds for regarding the refugee as a danger to the security of the country. Article 1(F) states that the provisions of the Convention are not to apply to persons with respect to whom there are serious grounds for considering that they have committed an offence or action listed in that Article. These include acts contrary to the purposes and principles of the United Nations, which is taken to include terrorist acts - see for example, Article 3(3) of UN Security Council Resolution 1373, passed on 28 September 2001, which required States to "Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts".

97.     So if either or both of Article 1(F) or 33(2) applies then a person can be removed without contravening the UK's obligations under the Refugee Convention. It is therefore not necessary to consider whether, had a person not been so excluded, he would have qualified for refugee status based on a well-founded fear of persecution. The purpose of this clause is to reflect this by enabling an asylum claim to be refused solely on the basis that the applicant is excluded from the protection of the Refugee Convention.

98.     Accordingly, where SIAC upholds the Secretary of State's certificate it must dismiss such part of the appeal as amounts to a claim for asylum. If there are other elements to the appeal SIAC would proceed to consider those elements.

99.     Should SIAC allow the appeal, the case would return to the Secretary of State who would have to consider the substance of the asylum claim. If the claim was still refused any appeal would lie to the Immigration Appellate Authority in the normal way (under the Immigration and Asylum Act 1999), assuming that no public interest provision applied (in which case the appeal would go back to SIAC).

100.     The clause provides for appeals against decisions of SIAC to be made to the Court of Appeal (or its equivalents in Scotland and Northern Ireland). It also provides that this is the only avenue for bringing proceedings against a decision of SIAC in connection with this clause; prevents legal proceedings to a decision or action of the Secretary of State in connection with a certification except through SIAC; and enables with appropriate modifications the clause to be extended by Order in Council to any of the Channel Islands or the Isle of Man.

Clause 34 Construction

101.     This clause provides that in considering whether or not Article 1F or Article 33(2) applies, there is no requirement to consider the fear of persecution the person may have or the threat to their life or freedom they may face if removed from the UK. That is, consideration of whether a person comes within the scope of Article 1F or 33(2) will be determined solely by reference to the appropriate Article.

Fingerprints

Clause 35 Destruction of Fingerprints

102.     Section 141 of the Immigration and Asylum Act 1999 allows fingerprints to be taken in certain circumstances relating to immigration and asylum. Section 143 requires the fingerprints to be destroyed within a certain time. Clause 35 removes this requirement, both for fingerprints taken in future and ones already held.

PART 5: RACIAL AND RELIGIOUS HATRED

Clause 36 Meaning of racial hatred

103.     This clause removes from the definition of racial hatred in section 17 of the Public Order Act 1986 the requirement that the group of persons against whom the hatred is directed is in Great Britain. The effect is that "racial hatred" in Part 3 of the Public Order Act 1986 will include hatred manifested in Great Britain but directed against a racial or religious group outside Great Britain.

Clause 37 Meaning of fear and hatred

104.     This clause makes corresponding amendments to Northern Ireland legislation.

Clause 38 Religious hatred offences

105.     This clause makes a number of amendments to Part 3 of the Public Order Act 1986 to extend the existing provisions on incitement to racial hatred to cover incitement to religious hatred.

106.     Subsection (3) inserts a definition of religious hatred after section 17 of the 1986 Act. Religious hatred is defined as hatred against a group of persons defined by reference to religious belief or lack of religious belief. This definition is designed to cover a wide range of religious beliefs but does not seek to define either what amounts to a religion or a religious belief.

107.     The definition covers hatred directed against a group defined by reference to lack of religious belief, which will include hatred of those who have no belief, such as atheists. The definition is also designed to include hatred of a group where the hatred is not directed against the religious beliefs of the group or to a lack of any belief but to the fact that the group do not share the particular religious beliefs of the perpetrator.

108.      The reference to lack of religious belief does not mean that a group identified by any other factors, such as political opinion, would be caught. The group does not have to have an independent existence as such.

109.     Subsection (4) makes a number of amendments to sections 18 to 23 of the 1986 Act. The effect is that the offences under Part 3 of the 1986 Act can be committed by reference to religious hatred as well as racial hatred.

110.     Subsection (7) amends section 24(2) of the Police and Criminal Evidence Act 1984 to reflect the fact that the arrestable offence under section 19 of the 1986 Act extends to religious hatred as well as to racial hatred.

Clause 39 Religiously Aggravated Offences

111.     Subsections (1) to (6) of the clause amend Part 2 of the Crime and Disorder Act 1998 so that the nine existing offences under sections 29 to 32 described as "racially aggravated" are committed if they are aggravated by either racial or religious factors.

112.     Subsections (3) and (4) amend section 28 of the 1998 Act so that it provides for when an offence is racially or religiously aggravated. The effect of the changes is that an offence will be an aggravated offence under the 1998 Act if there is evidence of hostility towards the victim of the offence by the perpetrator at the time of committing the offence or immediately before or after doing so and that hostility is based on the victim's membership of a racial or religious group. Alternatively, an offence will be aggravated if there is evidence that it was motivated by hostility towards members of a racial or religious group. The nine aggravated offences in sections 29 to 32 of the Crime and Disorder Act 1998 carry higher maximum penalties than the offences they are based upon.

113.     Subsection (3)(c) deletes a reference in the 1998 Act to religious hostility being immaterial in determining whether an offence is racially aggravated. This reference is no longer needed as the amended test for aggravation will cover hostility based on either racial or religious grounds.

114.     Subsection (4) defines a religious group as a group of persons defined by reference to religious belief or lack of religious belief.

115.     As with the amendments to Part 3 of the Public Order Act 1986, the definition means that offences can be aggravated if the hostility that is shown, or which motivates them, is based on the victim's membership of a group defined by reference to a particular religious belief, lack of a particular religious belief, or lack of any religious belief. This will cover those who have no belief, such as atheists, and also cases where the hostility is based on the fact that the victim does not share the particular religious beliefs of the perpetrator.

116.      The reference to lack of religious belief does not mean that a group identified by any other factors, such as political opinion, would be caught.

117.     Subsections (5) and (6) provide for the offences that are currently committed if they are racially aggravated to be committed if they are racially or religiously aggravated.

118.     Subsection (7) amends section 153 of the Powers of Criminal Courts (Sentencing) Act 2000 to refer to racial or religious aggravation. (This section is derived from section 82 of the Crime and Disorder Act 1998.) The effect is that an offence (other than the nine specific aggravated offences listed in sections 29 to 32 of the 1998 Act) may now be aggravated by either racial or religious hostility. If a court is considering the seriousness of an offence and finds that it was aggravated by either of those factors, it is required to treat this as increasing the seriousness of the offence and to state in open court that the offence was found to be aggravated.

119.     Subsection (8) amends section 24(2) of the Police and Criminal Evidence Act 1984 to reflect the fact that an offence under section 32(1)(a) of the Crime and Disorder Act 1998 can now be racially or religiously aggravated.

Clause 40 Racial or religious hatred offences: penalties

120.     The clause amends section 27(3) of the Public Order Act 1986 to increase the maximum penalty for the racial or religious hatred offences in Part 3 from 2 years imprisonment to 7 years.

Clause 41 Hatred and fear offences: penalties

121.     This clause makes a similar amendment to penalties contained in Northern Ireland legislation.

Clause 42 Saving

122.     This clause makes it clear that the changes made by Part 5 do not apply to anything done before the Part comes into force. The Part will come into force on Royal Assent of the Bill.

PART 6: WEAPONS OF MASS DESTRUCTION

Amendment of enactments relating to biological and chemical weapons

Clause 43 Transfers of biological agents and toxins

123.     This clause amends the Biological Weapons Act 1974 to make it an offence to transfer biological agents or toxins outside the UK or to assist another person to do so. Biological agents and toxins are defined in the Act as "any microbial or other biological agent and any toxin, whatever its origin or method of production".

Clause 44 Extraterritorial application of biological weapons offences

124.     This clause extends UK jurisdiction over offences under section 1 of the Biological Weapons Act 1974 carried out overseas by a United Kingdom person.

125.     A United Kingdom person is a UK national, Scottish partnership, body incorporated under the law of a part of the UK or, on extension by Order in Council, a body incorporated under the law of any of the Channel Islands, the Isle of Man or any Overseas Territory.

Clauses 45 and 46 Customs and excise prosecutions

126.     These clauses permit the Customs and Excise Commissioners to enforce offences under the Biological Weapons Act 1974 and the Chemical Weapons Act 1996, in cases involving the movement of a biological or chemical weapon across a border. Officers of the Commissioners will be able to institute offences in England and Wales and Northern Ireland (assuming the Attorney General gives his consent under section 2 of the 1974 Act and section 31 of the 1996 Act).

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Nuclear weapons

Clause 47 Use etc. of nuclear weapons

127.     This clause makes it an offence to knowingly cause a nuclear weapon explosion, develop, produce, transfer, possess or engage in military preparations to use or threaten to use a nuclear weapon. In this clause "nuclear weapon" is taken to include nuclear explosive devices not intended for use as a weapon.

128.     Subsection (6) makes the offences apply to acts outside the United Kingdom by a United Kingdom person (see paragraph 125 above).

129.     Subsection (8) provides for the offence of knowingly causing a nuclear weapon explosion to cease to have effect under this Bill on the coming into force of the Nuclear Explosions (Prohibitions and Inspections) Act 1998. That Act will come into force following the entry into force of the Comprehensive Test Ban Treaty, and includes a similar offence.

Clause 48 Exceptions

130.     This clause makes exceptions for actions carried out in the course of an armed conflict or for actions authorised by the Secretary of State.

Clause 49 Defences

131.     This clause sets out defences for lack of knowledge that a thing was a nuclear weapon or for an attempt to inform the authorities as soon as practicable after discovering that an object was a nuclear weapon.

Assisting or inducing weapons-related acts overseas

Clause 50 Assisting or inducing certain weapons-related activities overseas

132.     Under this clause it will become an offence for a United Kingdom person (see paragraph 125 above) outside the UK to assist a foreigner to do an act which would (for a UK person) be contrary to section 1 of the Biological Weapons Act, section 2 of the Chemical Weapons Act, or Clause 47 of the Bill. Offences under this clause carry a sentence of up to life imprisonment.

Supplemental provisions relating to sections 47 and 50

Clause 51 Extraterritorial application

133.     This clause supplements the provisions of clauses 47 and 50 that extend to acts of United Kingdom persons overseas.

Clause 52 Powers of entry

134.     This Clause gives powers of entry under warrant to constables and officers of the Secretary of State to search for evidence for the commission of an offence under clauses 47 and 50.

Clause 53 Customs and Excise prosecutions

135.     This clause permits the Customs and Excise Commissioners to enforce offences under clauses 47 and 50, in cases involving the movement of a nuclear weapon across a border. Officers of the Commissioners will be able to institute offences in England and Wales and Northern Ireland (assuming the Attorney General gives his consent under clause 54.

Clause 54 Offences

136.     Subsection (1) sets out additional offences in relation to obtaining an authorisation from the Secretary of State under clause 48 by fraud. These offences carry a sentence of up to two years imprisonment and a fine.

137.     Subsection (3) lays out individual liability of the relevant senior office holder in a body corporate, in addition to corporate responsibility.

 
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Prepared: 13 November 2001