Joint Committee On Human Rights Second Report


ANTI-TERRORISM, CRIME AND SECURITY BILL

Part 4 of the Bill: Immigration and Asylum

Due process

40. We were also concerned about whether the provisions of the Bill meet the requirements of due process under Article 6 of the Convention. There are various safeguards in the proposed measures.

    -  The suspected international terrorist would be able to appeal to the Special Immigration Appeals Commission (SIAC), which is a properly constituted judicial tribunal, against his or her certification within three months.[32]
    -  The SIAC must in any case review the certification as soon as reasonably practicable after the end of a period of six months starting on the date the certificate was issued, or starting on the date when any appeal was finally determined, whichever is the later, and then every six months, with a possibility of more frequent reviews. If the SIAC disagreed with the Secretary of State's assessment, it would have to cancel the certificate, but otherwise could make no order.[33]
    -  In initial appeals and on the six-monthly reviews, the interests of the person certified would be represented before the SIAC by a person appointed for that purpose in any part of the proceedings from which the person and his or her legal representatives were excluded on national security grounds.[34]
    -  In initial appeals and on the six-monthly reviews, there would be an appeal on a point of law from the SIAC to the Court of Appeal on matters of law.[35]
    -  A suspected international terrorist would, in theory at any rate, be able to be released on bail if detained for immigration purposes.[36]

41. On the other hand, where the SIAC cancels a certificate, under clause 27(9) of the Bill the Secretary of State can simply make another certificate 'whether on the grounds of a change of circumstance or otherwise'(our emphasis). The Home Secretary in his oral evidence recognized that this was too loose a formulation to make clear the intention that the power to issue a second certificate should be exercisable only if circumstances had changed or the decision of the SIAC had been reversed on appeal on a point of law.[37] We welcome the Home Secretary's undertaking to reconsider the wording of clause 27(9).

42. Furthermore, a number of normal legal safeguards, including judicial review and habeas corpus, are excluded. First, unlike normal provisions authorizing a person's detention, there is no requirement that the Secretary of State's suspicion or belief, the foundation for issuing a certificate under clause 21 or (in respect of asylum-seekers) clause 33, should be reasonable. We raised this with the Home Secretary,[38] who was prepared to look again at ways of introducing greater objectivity and transparency into the decision-making process. We welcome this undertaking.

43. Secondly, no court or tribunal other than the SIAC will have jurisdiction to entertain proceedings for questioning a certification or action made or taken by the Secretary of State under these provisions of the Act, or a decision or action of the SIAC (apart from the appeal to the Court of Appeal usually available on a point of law).[39] Only the SIAC would be able to entertain proceedings which call a derogation issue in question. This would be mitigated by giving the SIAC the same powers as the High Court or Court of Session would otherwise have had in such proceedings.[40]

44. There are also special provisions relating to asylum seekers. The Bill would allow the Secretary of State not to consider an application for asylum in certain cases. The Refugee Convention imposes duties in respect of people who are outside their country of nationality[41] and unwilling to return because of a 'well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion'.[42] The duties include a duty not to return the person 'to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.'[43] This is the so-called 'principle of non-refoulement.' However, Article 1F of the Refugee Convention provides that the Convention as a whole is not to apply to any person with respect to whom there are serious reasons for considering that—

    (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

    (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

    (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

In particular, Article 33(2) provides that the benefit of the principle of non-refoulement

... may not ... be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

45. Where the Secretary of State certifies that an applicant for asylum is not entitled to the benefit of the principle of non-refoulement on the ground that he or she falls within Article 1F or Article 33(2) of the Refugee Convention, and that the removal of the applicant from the United Kingdom would be conducive to the public good,[44] the Bill would restrict the due-process rights of the applicant. He or she would be able to appeal to the SIAC against a refusal of asylum, order for deportation, or other decision, but—

    -  the SIAC would have to start by considering the statements in the Secretary of State's certificate, and dismiss the application if the SIAC agrees with the statements;[45]
    -  if the SIAC disagrees with the statements, it would have to quash the decision or action in question, leaving the application for asylum undecided until the Secretary of State has made a new decision;[46]
    -  the Secretary of State would then be free to reach a different decision or the same one as before, whether or not there has been a change of circumstances (although the Home Secretary agreed to look again at this);[47]
    -  there would be an appeal to the Court of Appeal from a decision of the SIAC on a point of law only;[48]
    -  there would be no other judicial means of challenging a decision by the Secretary of State under these provisions.[49]

46. These provisions relating to asylum-seekers and others appear to be capable of satisfying the due-process requirements of the ECHR, as explained in relevant decisions of the European Court of Human Rights, before the SIAC. The SIAC is a fully-fledged judicial tribunal. It was established under the Special Immigration Appeals Commission Act 1997 specifically to give a judicial hearing in immigration and deportation cases involving national security matters.[50] The SIAC now receives and evaluates the grounds for the decision. National security is protected by withholding the information (where necessary) from the appellant and his or her legal advisers, and appointing a special representative to inspect the evidence and represent the appellant's interests before the SIAC.

47. As a result of this compromise, there is reasonable protection for the appellant's rights, because (a) the SIAC can offer a full hearing on the merits of the case leading to a final determination except in relation to asylum applications; (b) the use of the nominated representative to represent the interests of the applicant, where the applicant and his or her representatives are prevented from examining evidence on national security grounds, adequately balances the needs of the state and the interests of the applicant so as to maintain the fairness of the hearing; and (c) there is an opportunity to appeal on points of law.

48. However, before the Court of Appeal (or, on appeal from that court, the House of Lords) there would be a risk that the appeal procedure would be insufficient to meet the standards of Article 5(4) or Article 6 of the ECHR, because there is no provision under the legislation (or under the Special Immigration Appeal Commission Act 1997) for the nominated representative to represent the applicant's interests in the appeal.[51] There might therefore be a violation of the ECHR if—

    -  the nature of national security considerations in the case unduly inhibited an applicant or his or her representatives from formulating a point of law, or presenting his or her case in respect of a point of law, for the purpose of an appeal, or
    -  new evidence were presented on the appeal on behalf of the Secretary of State which, for reasons of national security, could not be adequately tested by a representative on behalf of the applicant.

49. We raised with the Home Secretary in oral evidence the possibility that an appellant's due-process rights might not be adequately protected on appeal from the SIAC to the Court of Appeal or the House of Lords in the absence of the nominated representative who appeared before the SIAC.[52] Having heard the Home Secretary's response, we remain concerned about it. We recommend that the role of the nominated representative should be extended to include participating in appeals from the SIAC in appropriate cases, including cases arising under the Bill. We accordingly draw this to the attention of each House.

50. We also welcome the undertaking by the Home Secretary to consider the possibility of providing that, after the first six months of detention, a detainee's case should be reviewed more frequently than at the six-monthly intervals presently proposed in the Bill.[53]

Fingerprints

51. The Bill also makes proposals in relation to fingerprints taken from immigrants and intending immigrants. Under clause 35, it would become possible to retain indefinitely fingerprints taken from intending immigrants, after the time when their cases are resolved and whether the fingerprints were taken before or after the date when the provisions in the Bill take effect. This engages the right to respect for private life under Article 8 of the ECHR, and gives rise to obligations under the Data Protection Act 1998. The provisions would apply to fingerprints currently being unlawfully retained in breach of the present requirement for destruction. There is nothing in the Bill to show what the purpose is, or that the requirement of necessity in a democratic society (specifically the tests of pressing social need and proportionality) will be satisfied.

52. We were concerned about this new power, because the lack of clarity as to the purpose of the provision, and because we question whether there will be appropriate safeguards against abuse of the fingerprint database to ensure that the requirements of pressing social need and proportionality will be met in individual cases, particularly in relation to subsequent storage, collation, cross-matching, and disclosure of the material, threatens its compatibility with Article 8 of the ECHR. We raised these matters with the Home Secretary in oral evidence.[54] We recognize that the provisions bring treatment of immigration-related fingerprints into line with fingerprints taken by the police, following the not uncontroversial amendment of the law governing the latter in the Criminal Justice and Police Act 2001. However, we are not persuaded that it is proportionate to treat all immigrants' fingerprints as being on a par with the fingerprints of those detained by the police. It seems to us to risk stigmatizing immigrants who have no criminal connections. The provision has no clear connection with terrorism or security. We recommend that the provisions should be reconsidered, and draw them to the attention of each House.

PART 3 OF THE BILL: DISCLOSURE OF INFORMATION

53. Part 3 of the Bill (including Schedule 4) would permit public authorities to disclose information to each other for the purposes of an investigation. These apply in relation to any criminal investigation. They are not framed specifically, or even mainly, to deal with terrorism or security matters. They contain provisions originally introduced to Parliament as Part 2 of the Criminal Justice and Police Bill in January 2001. Information obtained by a very wide range of public authorities under a vast array of legislative provisions (now listed in Schedule 4 to the Anti-Terrorism, Crime and Security Bill) would be entitled to disclose it for the purpose (inter alia) of a criminal investigation into, or criminal proceedings for, any offence, in the United Kingdom or elsewhere, or for the purpose of 'facilitating a determination of whether any such investigation or proceedings should be initiated or brought to an end'.[55] In addition, provision was made to remove the revenue departments' obligation of secrecy in relation to information if disclosure of the information would advance a wide range of criminal investigations or security functions.[56] The provisions attracted criticism from this Committee,[57] which concluded—

    There is a need to introduce adequate safeguards into this legislation. Consideration should be given to amending these provisions to include ... a requirement that there should be reasonable grounds for suspecting that the information in question would be relevant to a criminal inquiry or that the data subject has committed an offence, and a requirement that a pre-disclosure assessment be made of the proportionality of disclosing information on a particular individual in the context of the offence in question. Consideration should also be given to limiting the very wide power to make disclosures "for the purposes of initiating ... any such investigation or proceedings." We draw the attention of each House to these provisions, and consider that necessary safeguards should be provided to ensure that they are compatible with the right to privacy.[58]

54. The provisions were dropped from that Bill in the face of opposition in the House of Lords, in order to facilitate the passage of the remainder of the Bill before the general election. The provisions reintroduced in the current Bill still contain no express provision for appropriate safeguards to ensure that the powers will be used only in circumstances where their use is proportionate to a pressing social need. The Secretary of State would have power to exclude disclosures to overseas investigators in a limited range of cases, but has no obligation to do so, and could not prohibit disclosures by a Minister of the Crown or the Treasury.[59] The new provisions do not immediately appear to meet the Committee's criticisms quoted above.

55. The matter was raised with the Home Secretary in oral evidence.[60] One of his officials, Mr Harnett, sought to persuade us that the Treasury's intention had been to meet the Committee's concerns in the re-drafting of the clauses—

    First of all, as we understood it, the Committee had a concern about limiting this disclosure to public authorities, and we have done that. In clause 20 we have described a "public authority" as that which has the same meaning ... as in section 6 of the Human Rights Act. So we feel that that not only deals with the specific point about disclosure, but the fact that we have anchored this ... to section 6 of the Human Rights Act means that any disclosure that a public authority makes must be compatible with Article 8 of the Convention ... and thereby it has to meet the tests of reasonableness and proportionality which we understand the Committee was concerned about in January. The other protection that we have looked at in drafting this part of the Bill is that which the Data Protection Act will apply, so we have attempted to address, and believe we have addressed, the Committee's concerns in those respects ... we still think that it is necessary that public authorities should be able to disclose information to others in relation to whether criminal investigations or proceedings should be initiated. We think it is extremely important that this Act does enable us to do that. Our view is that we— and when I say "we" it is the Treasury primarily that has been responsible for this part of the Bill that you have before you— have sought to take account of your concerns in the way I have described.[61]

We welcome this evidence of willingness to take account of our view, but we may wish to examine the revised provisions further.

PART 5 OF THE BILL: RACE AND RELIGION

56. Part 5 of the Bill deals with incitement to religious and racial hatred. It would extend the existing offence of incitement to racial hatred to cover the incitement of racial hatred against people outside the United Kingdom.[62] It seems likely that this extension of an existing interference with the right to freedom of expression under Article 10 of the ECHR would be held to be capable of being justifiable.

57. The Bill would also create a new offence of incitement to religious hatred against people or groups within or outside the United Kingdom,[63] and extend the aggravated penalties for certain racially-motivated offences to those who commit those offences with religious motivation.[64] The maximum penalty for inciting both racial and religious hatreds would be 7 years' imprisonment (compared to 2 years for the current offence of inciting racial hatred).[65]

58. These provisions engage the right to freedom of expression under ECHR Article 10(1). They would be prescribed by law, and so capable of being justified under Article 10(2) if they have a legitimate aim, and are a proportionate response to a pressing social need to advance that

aim. The legitimate aims would be the protection of the rights of others to be free from abuse, and the protection of public order. There would be little difficulty in establishing a pressing social need for action. The Human Rights Committee at the United Nations, in its Concluding Observations earlier this month on the United Kingdom's latest periodic report under the ICCPR, noted the recent upsurge in religious harassment and attack, and urged the United Kingdom to 'extend its criminal legislation to cover offences motivated by religious hatred, and [to] take other steps to ensure that all persons are protected from discrimination on account of their religious beliefs.'[66] As long as the legislation is applied in a way that focuses closely on the prohibited purpose and outcome of speech, that is the incitement of hatred on religious grounds, it is therefore likely to be possible to justify it as a necessary and proportionate measure to protect the rights of others under ECHR Article 10(2), bearing in mind the provisions of ECHR Article 17 (no right to engage in any activity or perform any act aimed at the destruction of any of the Convention rights and freedoms) and Article 20 of the International Covenant on Civil and Political Rights (duty of states to prohibit propaganda for war, and any advocacy of [inter alia] religious hatred that constitutes incitement to discrimination, hostility or violence).

59. To satisfy ourselves on this matter, we asked the Home Secretary, in oral evidence, about the scope of the proposed offences, particularly as the Bill does not define 'religious' in any way except to make it clear that a religious group is one defined by religious belief or the absence of religious belief.[67] We were glad to have it confirmed that the Bill would not restrict freedom to express opinions and beliefs, including those which are critical of some or all religions, whether expressed seriously or satirically.[68]

60. We also asked the Home Secretary about his view of the relationship between the new provisions and the common-law offence of blasphemous libel.[69] The latter protects the Christian churches (or perhaps only the Church of England) against having doctrines, beliefs and ceremonies ridiculed. This runs the risk of causing a violation of rights under Article 10 of the ECHR. It is also regarded by non-Christian religious groups and atheists as protecting religious sensibilities asymmetrically in a way that has no objective and rational justification, giving rise to allegations of discrimination in relation to rights to freedom of belief and expression under Articles 9 and 10 of the ECHR. The European Commission and Court of Human Rights have so far refused to hold blasphemy laws to be disproportionate interferences with rights under those Articles, or unlawful discrimination under Article 14.[70] However, the dynamic interpretation of the ECHR as a living instrument may lead to a change of view. We were therefore pleased to learn that the Home Secretary is not committed to the view that the present state of the law of blasphemy is in tune with the equality-based and respect-based arguments which would be likely to be used to justify the interference with freedom of expression potentially occasioned by the provisions of the Bill on incitement to religious hatred. This, too, is a matter to which we may wish to return in the future.

PART 10 OF THE BILL: POLICE POWERS

61. Part 10 of the Bill would increase police powers in relation to the identification of certain classes of people. Several of the new powers would apply in non-terrorism cases in England and Wales and Northern Ireland. They would allow a person detained in a police station for any reason to be subjected to a search (including a strip search, but not including an intimate search[71]) or examination to facilitate the ascertainment of his or her identity. This applies only where the officer has obtained the appropriate consent, or it is impracticable to obtain that consent. They would also allow a person detained at a police station to be photographed (with the appropriate consent, or without it if it would be impracticable to obtain it), removing any article or substance worn on the head or face if necessary. Force may be used if necessary.[72] These provisions engage the right to respect for private life under Article 8(1) of the ECHR, and give rise to delicate issues of proportionality in taking account of the seriousness of offences and the extent of the invasion of a person's physical and moral integrity when assessing proportionality. We are concerned about such provisions relating to the powers of the police being hurried through Parliament as part of a Bill which purports to be aimed primarily at taking emergency measures in respect of terrorism. We are particularly concerned that the Bill does not make clear the steps (if any) which would be taken to ensure that the regime covering the taking, storage, cross-matching, retention, disclosure and destruction of such photographs will contain safeguards sufficient to ensure that the process as a whole, and each stage in it, would meet the justifying requirements of Article 8(2).

62. We regard the provisions relating to police powers contained in clauses 88 to 92 of the Bill as being in need of additional safeguards and mature consideration, and accordingly draw them to the attention of each House.

63. Clauses 93 to 97 of the Bill contain a proposal to extend the powers of constables on the street to require anyone to remove any item which the constable reasonably believes is being worn wholly or mainly to conceal identity, and to seize an item which the constable reasonably believes the person intends to wear for that purpose. There is already power to do this in England and Wales, in a locality for which a superintendent has authorized it on the ground that it is expedient to do so to incidents involving serious violence or people carrying dangerous instruments or offensive weapons.[73] The Bill would extend the existing power by allowing an inspector rather than a superintendent to give the authorization, and by allowing it where the inspector reasonably believes that it is expedient to in order to prevent or control the commission of any offences (not just serious violence or the use of offensive weapons.) It would also extend the whole set of powers to Northern Ireland.

64. The removal of face coverings may be a matter of sensitivity to certain people, for example on religious grounds. These may include Muslims, especially Muslim women, and particularly at the moment. The provisions risk being seen as authorizing an unreasonable and disproportionate interference with their dignity, their right to respect for private life under Article 8 of the ECHR, and their right to manifest their religion under Article 9. Furthermore, the provisions may be considered disproportionate to the problem they seek to remedy since they extend a power to less serious offences while reducing the level of authority needed to exercise it. We consider that the measures relating to the powers of police to remove face coverings should be subjected to the most careful scrutiny on human rights grounds, and accordingly draw them to the attention of each House.

65. Clauses 97 to 100 of, and Schedule 7 to, the Bill contain provisions which would allow the Ministry of Defence Police and the Transport Police to operate as constables in the areas of ordinary constabularies in some circumstances.

66. The provisions relating to the MDP were originally contained in the Armed Forces Bill introduced to Parliament in the 2000-01 session. They were examined closely by the Commons Select Committee which considered the Bill but eventually endorsed by it with qualifications. They were dropped from it in the Lords as part of the pre-election dealing.

67. Alongside these provisions, we observe that clause 76(3)-(6), in Part 8 of the Bill, would permit special constables appointed by the Atomic Energy Authority to exercise all the powers and privileges (and be liable to the duties and responsibilities) of a constable at any place within 5 km of a nuclear site. They would have the same powers and responsibilities at any place outside that area if they are protecting nuclear material in transit or pursuing people reasonably believed to have unlawfully removed or interfered with, or attempted to remove or interfere with, nuclear material being guarded by them. The powers extend to United Kingdom waters adjacent to Great Britain.

68. The powers which would be conferred are capable of engaging rights under Articles 2, 3, 5, 6, 8, 9, 10 and 11 of, and Article 1 of Protocol No. 1 to, the ECHR. The ordinary constabularies are subject to elaborate mechanisms designed to provide safeguards for those rights, including subjection to various Codes of Practice, recording requirements, complaints procedures, and training programmes. These safeguards usually make it possible to say that the exercise of police powers which interfere with Convention rights will normally be justifiable within the terms of the ECHR. It is not clear how those safeguards will be applied to, and operated by, the Ministry of Defence Police, the British Transport Police, and the Atomic Energy Authority special constables. Until the extent to which the safeguards surrounding the procedures of Home Office police forces will apply to the Ministry of Defence Police, the British Transport Police, and the Atomic Energy Authority special constables in their new functions is clarified, we are unable to be confident that the Bill provides adequate safeguards against abuse of or interference in human rights. We draw these matters to the attention of each House.

PART 11 OF THE BILL: RETENTION OF COMMUNICATIONS DATA

69. Part 11 of the Bill deals with the retention of communications data. These are data held by communications providers about the use made of their facilities by customers, such as the telephone numbers dialled from a particular line, the times and duration of calls, and equivalent data in respect of Email communications. They currently fall outside the regime for authorizing surveillance under Chapter 2 of Part I of the Regulation of Investigatory Powers Act 2000.

70. Clause 101 proposes that the Secretary of State should issue a Code of Practice and enter into agreements with providers about the retention of such data. Under clause 102, the Secretary of State would then be empowered to issue directions, by statutory instrument, requiring the providers to make specified provision for the retention of communications data. It would be possible to enforce the directions by civil proceedings. These powers are linked to the maintenance of national security, but also detection or prevention of crime more generally.

71. There is no express limit to the scope of the powers. They could be used to secure highly sensitive data for the purpose of investigating very minor offences, or even for monitoring people's communications without any ground for suspecting them of any offence or of threatening national security. We note that as the Bill is presently drafted, the Code of Practice relating to the retention of communications data will not be subject to any parliamentary procedure. We also have in mind that a Code of Practice may be used as evidence in courts and tribunals, and that a direction given by a Secretary of State may give rise to legal obligations. In the light of these factors, we consider that measures should be put in place to ensure that the Code of Practice and any directions are compatible with the right to respect for private and family life, home and correspondence under Article 8 of the ECHR, and that those measures should be specified, so far as practicable, on the face of the legislation. We accordingly draw these provisions to the attention of each House.

PART 13 OF THE BILL: EU 'THIRD PILLAR'

72. We note that Part 13 of the Bill would allow Secretaries of State, the Lord Chancellor, the Treasury, and the devolved executives to make subordinate legislation to give effect to obligations and rights of the United Kingdom arising in EU law under the 'third pillar' (Justice and Home Affairs). Provisions could include the creation of new offences required by EU law under the third pillar, which would not otherwise be offences under the law in the United Kingdom. The immediate purpose is to give effect to the Framework Directions on a European Arrest Warrant and on Anti-Terrorism Measures currently being negotiated, though as we noted above, Ministers seem to have indicated that the first of these will actually be introduced by way of primary legislation. The appropriateness of provision for implementation by affirmative instrument will no doubt be considered by the Delegated Powers and Regulatory Reform Committee of the House of Lords. Drafts of these are subject to the scrutiny reserve, and are under consideration by the House of Commons European Scrutiny Committee and the House of Lords EU Committee, Sub-Committee E.[74] At present, it seems to us likely that the main human rights questions to arise will be—

    -  whether safeguards attaching to a European arrest warrant will suffice to meet the requirements of the right to liberty under ECHR Article 5; and

    -  whether any provisions relating to deportation and extradition satisfy the requirements of the right to be free of the death penalty under Article 1 of Protocol No. 6 to the ECHR and the right to be free of torture and inhuman or degrading treatment or punishment under Article 3 of the ECHR (from which Articles no state is permitted to derogate under any circumstances), and the Geneva Convention on the Status of Refugees 1951.

73. Any Orders made under the powers proposed in the Bill would be scrutinized by the Joint Committee on Statutory Instruments. Orders might be invalid to the extent of any incompatibility with Convention rights. However, if an order were to amend primary legislation (which it would have power to do), it would itself be regarded as primary legislation for the purposes of the Human Rights Act 1998, section 21(1). A court might make a declaration of incompatibility in respect of it, but an incompatibility would not affect the validity or effectiveness of the order.

74. We consider that it will be important to ensure that the procedure for making orders adequately safeguards human rights. Since other Committees are currently examining different aspects of the proposals, we make no detailed comment on them now, but we may decide to revisit the matter in the future.

75. We have considered other provisions of Chapter 13 of the Bill, but have concluded that it is not necessary to draw attention to any of them at this time. As noted above, we may in any case report further on this Bill at a later stage in its passage through the two Houses.


32   Clause 25 Back

33   Clause 26 Back

34   Special Immigration Appeals Commission Act 1997, s. 6; Clause 27(1)(a) of the Bill. Back

35   Clause 27(1)(b) Back

36   Clause 24 Back

37   QQ 34 and 35 Back

38   QQ 36 and 37 Back

39   Clause 29 Back

40   Clause 30 (although the powers the courts would have in relation to such issues is not entirely clear) Back

41   In the case of someone without a nationality, their country of former habitual residence Back

42   Refugee Convention, Art. 1(2) Back

43   ibid., Art. 33(1) Back

44   Clause 33(1) of the Bill. Back

45   Clause 33(3), (4). Back

46   Clause 33(5). Back

47   Clause 33(6) Back

48   Clause 33(9) Back

49   Clause 33(8) Back

50   After the European Court of Human Rights had held in Chahal v. United Kingdom ((1996) 23 E.H.R.R. 413) that judicial review of such decisions of the Secretary of State gave inadequate protection to satisfy the requirements of the ECHR because the courts were prevented from effectively scrutinizing the grounds for the Secretary of State's decision Back

51   See, e.g., Secretary of State for the Home Department v. Rehman [2001] 3 W.L.R. 877, H.L. Back

52   QQ 38 and 39 Back

53   Q 40 Back

54   QQ 44 and 45 Back

55   See now Clause 17(2) of the present Bill Back

56   See now Clause 19(6), making it clear that the revenue departments would have to comply with the requirements of the Data Protection Act 1998 in making disclosures. However, those requirements are heavily qualified in respect of disclosures for criminal investigations and security matters Back

57   First Report, Criminal Justice and Police Bill, HL Paper 69, HC 427 of 2000-01, pp. xx-xxii, paras. 58-66 Back

58   ibid., p. xxii, para. 66 Back

59   Clause 19(3), (4) of the Bill Back

60   Q 47 Back

61   ibid Back

62   Clauses 36, 37 Back

63   Clause 38 Back

64   Clause 39 Back

65   Clauses 40, 41 Back

66   Op. cit., at para. 14 Back

67   Clauses 38(3), 39(4) Back

68   Q 48 Back

69   Q 49 Back

70   See, e.g., Gay News and Lemon v. United Kingdom (1983) 5 E.H.R.R. 123 Back

71   For example a search of a person's body orifices other than the mouth Back

72   Clauses 89-92 Back

73   Criminal Justice and Public Order Act 1994, s. 60(4A), inserted by Crime and Disorder Act 1998, s. 25 Back

74   See Sixth Report from the Select Committee on the European Union, Session 2001-02, Counter Terrorism: the European Arrest Warrant, HL Paper 34  Back


 
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