Joint Committee On Human Rights Fifth Report


The Joint Committee on Human Rights has agreed to the following Report:



Summary. The Government has laid a draft Order in Council to extend the powers, under sections 21 to 23 of the Anti-terrorism, Crime and Security Act 2001, to detain indefinitely without trial certain foreign nationals who are reasonably suspected to have links to international terrorism and who cannot be removed from the United Kingdom for legal or practical reasons. The Committee has examined the human rights implications of extending this power for a further twelve months in the light of safeguards offered by SIAC and by independent reviews of the operation of the provisions. The Committee reports that it considers the safeguards to be sufficiently reliable to warrant the Government's decision to seek Parliament's approval for the extension of the powers. At the same time, the Committee draws attention to certain improvements that are needed in the operation of this power.


8. The Anti-terrorism, Crime and Security Act 2001 ('the ATCS Act') was passed by Parliament in the wake of the terrorist attacks on the World Trade Centre in New York and on the Pentagon on 11 September 2001. It is a major measure, consisting of 129 sections and eight extensive Schedules. It confers substantial additional powers and creates a number of new criminal offences. The Bill was processed as an emergency measure. It had its first reading in the House of Commons on 12 November 2001 and received Royal Assent on 14 December 2001. The speed at which this mass of provisions went through Parliament necessarily limited the time available for careful scrutiny. Nevertheless, we gave extensive consideration to it, taking oral evidence from the Home Secretary and publishing two reports.[1]

9. Although the Bill was improved in a number of ways during its parliamentary stages, we continued to be concerned about a number of aspects of it. One was the hurried adoption of new anti-terrorism measures only a short time after Parliament had exhaustively considered the appropriate balance between investigative powers and human rights in the Regulation of Investigatory Powers Act 2000 and the Terrorism Act 2000. More specific concerns related to—

  • the fact that a number of provisions appearing not to be particularly related to the threat of international terrorism were rushed through Parliament in the Bill, including extended powers to disclose information (Part 3 of the Act) and additional powers for Ministry of Defence Police (sections 98 to 101) which Parliament had previously refused to enact in earlier Bills, together with new police powers not restricted to terrorism (sections 89 to 97), new requirements for retention of communications data (Part 11), and powers to give effect to EU third pillar (Justice and Home Affairs) instruments by subordinate legislation (sections 111 and 112);

  • a new power to detain indefinitely a class of 'suspected international terrorists' contained in Part 4 of the Bill (sections 21 to 23), which was only doubtfully compatible with Convention rights (particularly ECHR Articles 5 and 14) and rights under the ICCPR (particularly Articles 9 and 26);
  • the Government purporting to derogate from ECHR Article 5 and ICCPR Article 9, and to make the derogation from ECHR Article 5 effective in the law of the United Kingdom by amending the Human Rights Act 1998 by way of the Human Rights Act 1998 (Designated Derogation) Order 2001.[2] The legal validity of the derogations and of the Order is currently the subject of legal proceedings, and their impact on human rights in the United Kingdom may be significant.

10. In the face of persistent calls from many people of all political parties for additional safeguards to be included in the legislation, the Act now establishes a number of reviews and sunset periods.

11. First, sections 21 to 23 on detention of suspected international terrorists cease to have effect on 14 March 2003 unless renewed, for no more than a year, by order of the Secretary of State. Subsequently the sections may be further extended by order for periods of no more than a year at a time until 10 November 2006 (section 29(1), (2), (7)).

  • Before making such an order, the Secretary of State must receive a report from a person appointed to review the operation of the sections, which is to be provided at least a month before the date when the sections would cease to have effect and is to be laid before Parliament (section 28). Lord Carlile of Berriew Q.C. was appointed to conduct the review, and made his report (hereafter referred to as 'Lord Carlile's ATCS Act Report') on 14 February 2003.[3]

  • Before making an order, the Secretary of State must lay a draft of the order before Parliament, and it must be approved by resolution of each House, except in cases of urgent necessity, when the order can be made but will cease to have effect if not approved by resolution of each House within 40 days of being laid before it (section 29). In 2001, we undertook to review the human rights implications in time for Parliament to know its views when considering any draft order or order laid under section 29.[4]

  • Sections 21 to 23 will cease to have effect at the end of 10 November 2006 (section 29(7)).

12. Secondly, the power of the Secretary of State under section 104 of the Act to give directions to communications providers for the retention of communications data will lapse at the end of 13 December 2003 unless extended by order made by statutory instrument by the Secretary of State under section 105. Such an order would first have to be approved in draft by resolution of each House.

13. Thirdly, the whole Act is to be subject to a single, comprehensive review by a committee of Privy Councillors appointed by the Secretary of State, which is to report not later than 13 December 2003. The committee's report is to be laid before Parliament (section 122). A committee chaired by Lord Newton of Braintree has been appointed for this purpose, and has started to take evidence.

  • The report by the committee of Privy Councillors may specify any provision of the Act as one to which section 123 applies (section 123(1)). The effect of this would be that the specified provision would cease to have effect six months from the date when the report is laid before Parliament (section 123(2)), unless before the end of that period 'a motion has been passed in each House of Parliament considering the report' (section 123(3)).

14. The first renewal date for sections 21 to 23 of the Act is approaching. The Government has laid before each House a draft Order in Council to continue the provisions in force for a further year. As already noted, Lord Carlile of Berriew Q.C. has presented his report on those sections, and each House must now decide whether to approve the draft Order. We have therefore returned to examine again the human rights implications of sections 21 to 23 in Part 4 of the Act in the light of the experience of the last fourteen months. We start our assessment bearing in mind the words of Mr. (later Sir) Winston S. Churchill in relation to the power to intern 'enemy aliens' during the Second World War:

The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist.[5]

We hope that this Report will assist each House in considering the draft Order.[6]

15. In considering the matter, we have had assistance from a number of sources. In 2002, we initiated an inquiry into the procedures for derogating from the European Convention on Human Rights ('the ECHR') under Article 15 of the ECHR, the making and review of derogation orders generally under sections 14 and 16 of the Human Rights Act 1998, and the particular derogation and order[7] in respect of Article 5 of the ECHR made for the purposes of section 23 of the 2001 Act. As explained below, this has significance for the human rights implications of sections 21 to 23 of the Act. A substantial body of written evidence has been received, and it has informed our consideration of this issue. More recently, our Chair wrote to: Lord Newton of Braintree asking for information about the plans of the committee of Privy Councillors for taking evidence relevant to sections 21 to 23; Lord Carlile of Berriew Q.C., asking for information about his plans for taking evidence relevant to sections 21 to 23 as part of his review under section 28 of the Act; and the Home Secretary, asking a series of questions about the operation of sections 21 to 23 and about the current intelligence assessment of risks facing the United Kingdom from international terrorism. We have received replies to those letters, together with some other correspondence, and an Opinion by Mr. Alvaro Gil-Robles, the Commissioner for Human Rights, Council of Europe, on the derogation.[8] We have also benefited from seeing the report by Lord Carlile. We express our appreciation for the help and co-operation we have received from all these people.

What do sections 21 to 23 of the Act do?

16. Sections 21 to 23 allow the Secretary of State to issue a certificate if he reasonably believes that a person's presence in the United Kingdom is a risk to national security, and reasonably suspects that the person is a terrorist with connections with international terrorism.[9] Included in the definition is anyone who 'has links with an international terrorist group.'[10] A person named in the certificate may be refused entry to the United Kingdom, or removed from the United Kingdom.[11] However, by reason of the Human Rights Act 1998, section 6, it would be unlawful to exercise that power if as a result the person would be subject to a threat of violation of Convention rights in the place to which he or she would be removed. Of particular importance in this connection are the right to be free of torture or inhuman or degrading treatment or punishment under ECHR Article 3, and the right to be free of unjustified threats to life (ECHR Article 2), including the death penalty (ECHR Protocol No. 6). It might also be practically impossible to remove a person to a safe place, for example because no direct means of transport exists to such a place (e.g. the Kurdish Autonomous Area). Section 22(1) therefore provides that an order may be made for a person's removal from the United Kingdom even if it cannot be put into execution because of a point of law which relates to an international agreement, or to a practical consideration. These powers apply only to people who are subject to immigration restrictions, i.e. people who are not United Kingdom nationals.

17. Where an order has been made but the person cannot be removed, section 23 provides that the person may be detained indefinitely under immigration law powers. If the person voluntarily agrees to be deported to a specified country, he or she must be released and removed to that place. While a person is detained, the Secretary of State has an implied duty to search diligently for a place to which the person could be safely and practicably removed, and to detain the person only as long as necessary to find a safe place and make arrangements for removal. The Home Secretary has informed us that, so far, fifteen foreign nationals have been detained, of whom two subsequently left the country voluntarily and thirteen remain in detention.[12]

1   Joint Committee on Human Rights, Second Report of 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37/HC 372; Joint Committee on Human Rights, Fifth Report of 2001-02, Anti-terrorism, Crime and Security Bill: Further Report, HL Paper 51/HC 420 Back

2   SI 2001 No. 3641 Back

3   Anti-terrorism, Crime and Security Act 2001, Part IV Section 28 Review by Lord Carlile of Berriew Q.C., February 2003 Back

4   Joint Committee on Human Rights, Fifth Report of 2001-02, Anti-terrorism, Crime and Security Bill: Further Report, HL Paper 51/HC 420, p. x, para. 20 Back

5   Quoted in A. W. Brian Simpson, In the Highest Degree Odious: Detention without Trial in Wartime Britain (Oxford: Clarendon Press, 1992), p. v. Back

6   We are continuing to monitor other aspects of the Act, and will be liaising with the committee of Privy Councillors chaired by Lord Newton of Braintree and will report in due course Back

7   Human Rights Act 1998 (Designated Derogation) Order, SI 2001 No. 3644. See Joint Committee on Human Rights, Fifth Report of 2001-02, Anti-terrorism, Crime and Security Bill: Further Report, HL Paper 51, HC 420, p. vi, para. 4 Back

8   The correspondence, and Opinion 1/2002 by the Commissioner, are reproduced as appendices to this Report, Ev 1-Ev 14 below Back

9   ATCS Act s. 21(1), (2) Back

10   ibid., s. 21(2)(c) Back

11   ibid., s. 22 Back

12   Memorandum from the Home Secretary, para. 2(a) Back

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Prepared 26 February 2003