Joint Committee On Human Rights Fifth Report


What human rights questions are raised by sections 21 to 23 of the Act?

18. Sections 21 to 23 of the ATCS Act engage the right to liberty and security of the person under ECHR Article 5.1 and ICCPR Article 9.1, the right to be free of discrimination in the enjoyment of that right under ECHR Article 14 and ICCPR Article 2.1, and the free-standing right to be free of discrimination on the ground of (inter alia) nationality under ICCPR Article 26. These rights all include a requirement that any law interfering with them must satisfy the principle of legal certainty. In addition, the powers must be exercised, in individual cases, in ways that are compatible with those rights, and with other Convention rights.

19. Under ECHR Article 5.1(f), a person may be deprived of his liberty in accordance with a procedure prescribed by law in the case of 'the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.' In November 2001, we considered whether the provisions in the Bill which are now sections 21 to 23 of the ATCS Act fell within ECHR Article 5.1(f). We noted that the provisions did not in terms limit the power to the circumstances in which the Government envisaged using it, namely while the person was refusing to leave the country voluntarily and a diligent search was in progress for a safe third country to which the person could be removed. We expressed no definite view as to whether the Bill as drafted could be defended under Article 5.1(f), but noted that the use of the power in circumstances other than those envisaged by the Government would make it more like a power of indefinite detention and less like a power to detain pending removal, making it more likely that the detention would be held to violate Article 5.1(f).[13] Later, we took the following view: 'Because clause 23 [of the Bill, now section 23 of the ATCS Act] does not specify the purpose for which people may be detained, we consider that the Government was entitled to conclude that a derogation might be necessary, provided that it could show that the requirements of Article 15 of the ECHR had been met.'[14] (The requirements of Article 15 are explained in paragraph 18, below.) We remain of the view that Article 5 is engaged, and (in the absence of a valid derogation) there are reasonable grounds for thinking that the detention under Part 4 of the ATCS Act would fall outside the justification under Article 5.1(f). Only if the derogation from ECHR Article 5.1 is valid will the detention power be lawful in international law.

20. Under Article 9.1 of the ICCPR, 'Everyone has the right to liberty and security of the person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.' Because the purposes of detention are not spelt out in section 23 of the ATCS Act, there is a significant risk that the detention might be regarded as arbitrary, and that the grounds might not be regarded as established by law. It follows that there is a significant risk that Part 4 of the ATCS Act would violate Article 9.1, unless there is a valid derogation in accordance with the requirements of ICCPR Article 4. Once again, the lawfulness in international law of the statutory detention power can therefore be seen as depending on the validity of the derogation.

21. ECHR Article 14 and ICCPR Article 2 forbid discrimination in relation to the protection of other rights, including the right to liberty and security of the person. Sections 21 to 23 of the ATCS Act operate through immigration law and procedures. They therefore apply only to people who are not nationals of the United Kingdom. Nationality is a prohibited ground of discrimination. The Government has not argued for a derogation from this right. Instead, it has argued that the different treatment accorded to nationals and non-nationals is objectively and rationally justified and is proportionate to a legitimate aim, thus not amounting to unlawful discrimination and being compatible with the anti-discrimination provisions.

22. Principle of legal certainty. The principle of legal certainty requires that it should be possible to predict, with reasonable confidence and on the basis of reasonably accessible legal materials, the circumstances in which a power will be used so as to interfere with one's rights. The principle forms an important part of rights under the ECHR. In particular, the right to liberty and security of the person under ECHR Article 5.1 embodies the principle by requiring that any arrest or detention must be in accordance with a procedure prescribed by law and must be lawful. We need to consider whether the definition of the class of people liable to be detained under sections 21 to 23 of the ATCS Act is sufficiently certain to meet this requirement.

23. Other matters. Apart from issues relating to the intrinsic compatibility of sections 21 to 23 with human rights, we bear in mind that the powers must be exercised in each case so as to be compatible with relevant rights. We have been able to consider some evidence as to the manner in which powers have been exercised so far, in relation to the Home Secretary's functions, the appeal and review procedures (which engage due process rights under ECHR Articles 5.4 and 6.1), and the conditions under which detainees are being held (which engage the right to be free of inhuman or degrading treatment under ECHR Article 3 and the right to respect for private life under ECHR Article 8).

24. We therefore have to consider five separate issues. First, are the derogations from ECHR Article 5.1 and ICCPR Article 9.1 valid in international law? Secondly, if the derogations are valid, was the derogation order (made to allow the derogation from ECHR Article 5.1 to operate in municipal law under the Human Rights Act 1998) validly made as a matter of municipal law? Thirdly, is the different treatment of nationals and non-nationals legally justified? Fourthly, does the definition of those liable to detention under sections 21 to 23 of the ATCS Act meet the requirements of the principle of legal certainty? Fifthly, are the powers being used in ways that are compatible with relevant rights in individual cases?

Question 1: Are the derogations from ECHR Article 5 and ICCPR Article 9 valid in international law?

25. The ECHR permits states to derogate from Article 5. Article 15 provides that derogation is permitted only if—

  • the derogation is no more extensive than is strictly required by the exigencies of the situation, and

  • the measures are not inconsistent with the state's other obligations under international law.

26. Article 4 of the ICCPR permits states to derogate from Article 9. The conditions for a valid derogation include those required by ECHR Article 15, together with two others—

  • the existence of a public emergency threatening the life of the nation must have been officially proclaimed, and

  • the measures taken must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

27. Existence of a public emergency threatening the life of the nation. In his written evidence to us, the Secretary of State has asserted the existence of such an emergency, and has indicated that his view is based on intelligence assessments and events such as the Bali bombing. In November 2001, we said that we had insufficient evidence to satisfy us of the existence of a public emergency threatening the life of the nation, but thought it was important for each House to take steps to satisfy itself of that matter.[15] Since then, the matter has been considered by the Special Immigration Appeals Commission (hereafter 'SIAC'), which concluded that there was such an emergency, and this view has been endorsed by the Court of Appeal.[16] We have not seen the evidence on which the Home Secretary's assessment or that of SIAC was based, and Lord Carlile's ATCS Act report does not seek to address the question directly, although it contains some relevant information.[17] The assessment inevitably relies on information which cannot be put into the public domain, and is ultimately a matter of judgment rather than fact. We draw attention to the fact that SIAC had access to both 'open' and 'closed' material. SIAC is, in our view, well placed to form an independent and reliable judgment (see paragraph 43, below). Nevertheless, each House may wish to seek further information from the Government in order to satisfy itself on this issue.

28. Are the measures derogating from Article 5 rights strictly required by the exigencies of the situation? SIAC and the Court of Appeal considered that, if examined only in the light of the terms of section 21, the measures would have been over-inclusive and therefore not strictly required, because section 21 was capable of subjecting people to indefinite detention without the need for a public emergency to be threatening the life of the nation, etc. But SIAC and the Court of Appeal went on to hold that it would be unlawful to exercise the power in circumstances not covered by the derogation, because any exercise of the power which was not covered by the derogation would be incompatible with Article 5 and therefore unlawful by virtue of section 6(1) of the Human Rights Act 1998. There was therefore no possibility of the power being lawfully exercised where there was no such public emergency, or in a way that was not strictly required by the exigencies of the situation.[18] In this way, the requirements of Article 15 are to be understood as being read into the terms of sections 21 to 23 of the ATCS Act. This is a matter which SIAC will have to consider whenever it hears an appeal against a certificate issued by the Secretary of State under section 21, or conducts a periodic review of a person's detention under the Act. As a matter of logic, this seems to us to be a compelling argument. We therefore accept that the availability of appeals to, and reviews by, SIAC provides a sufficient safeguard to ensure that the powers are exercised only when, and for as long as, there is a public emergency threatening the life of the nation, and that each individual detention is lawful only so long as that public emergency continues and the detention itself is strictly required by the exigencies of the situation.

29. Other requirements. To be valid, a derogation must also be compatible with the United Kingdom's other international obligations, the public emergency must have been officially proclaimed, and the measures must not discriminate solely on the ground of race, colour, sex, language, religion or social origin. There is no suggestion that decisions to certify and detain people as a suspected international terrorist are incompatible with other obligations. The public emergency can be regarded as having been officially proclaimed when the derogation order was laid before Parliament. Finally, nobody has suggested that the provisions discriminate solely on the ground of race, colour, sex, language, religion or social origin. So far as there is discrimination, it takes place on the ground of nationality alone.

Question 2: Is the derogation order under the Human Rights Act 1998 valid in UK law?

30. Where measures validly derogate from a right under an international human rights treaty, the right has to be read subject to the derogation. However, constitutional law in the United Kingdom does not treat treaties operating in international law as automatically forming part of municipal law. In international law, the United Kingdom's power to derogate from treaty obligations is exercised by virtue of the Royal Prerogative. The Human Rights Act 1998 provides a procedure for translating the notification of a derogation into United Kingdom law. Under section 1 of the Act, Convention rights are to be read subject to any 'designated derogation', and section 14(1)(b) provides for a derogation in international law to become a 'designated derogation' by being designated for the purposes of the 1998 Act in an order (referred to here as a 'derogation order') made by the Secretary of State. The Home Secretary made and laid before Parliament a derogation order[19] on 12 November 2001. It came into force on 13 November 2001, the day on which the Bill was published. Each House of Parliament approved the derogation order on 14 November, immediately before Second Reading of the Bill in the House of Commons.

31. It has been argued in evidence to the Committee from the Council of Europe Commissioner for Human Rights, Mr. Alvaro Gil-Robles,[20] that the procedure was defective, because at the time the derogation order was made the measures to which it would relate had not been formulated, much less debated by Parliament or enacted. As the derogation consists of measures, rather than a declaration of intention not to be bound by the Convention rights, we consider that it is unacceptable to make an order in the abstract, before the measures which constitute the derogation have been publicly endorsed by Parliament. We hope and expect that this would not be repeated.

32. We can understand the Government's desire to be able to make a statement of compatibility with Convention rights before Second Reading under section 19(1)(a) of the Human Rights Act 1998, rather than a statement under section 19(1)(b) that the Minister could not be satisfied that the Bill was compatible but the Government none the less wished the House to consider it. However, we consider that the appropriate course of action, should a similar problem arise in the future, is to introduce the Bill with a statement under section 19(1)(b), to announce an intention to derogate from the relevant Article (if it is one from which derogation is permitted), and after Royal Assent to tailor any notification of a derogation and any derogation order to the terms of the legislation as Parliament has passed it.

33. In accordance with our view, it could be argued that the derogation order was flawed on procedural grounds: at the time it was made, purported to come into force, and was approved by Parliament, there was no derogation which the order could designate for the purposes of the Human Rights Act 1998. However, it is equally arguable that the order, if initially ineffective, became effective when measures were enacted falling within its scope. In the Court of Appeal, Lord Woolf CJ took the view that the procedure for making a derogation order was a matter for Parliament, not the courts, although he noted that Parliament was likely to have been aware of the measures proposed when considering the order, and 'the position was clear beyond a peradventure before the Act was passed.'[21]

34. In relation to this particular derogation order, we consider that it is very likely to have become effective from the time the ATCS Act come into force, and might have been effective from an earlier date. As none of the detainees was taken into custody before the Act came into force, we accept that for practical purposes the order is effective.


13   Joint Committee on Human Rights, Second Report of 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37/HC 372, pp. viii-ix, para. 23 Back

14   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. 6 Back

15   Second Report of 2001-02, p. x, para. 30 Back

16   A, X and Y, and others v. Secretary of State for the Home Department [2002] EWCA Civ 1502, CA, at paras. [33]-[34] per Lord Woolf CJ, [82]-[85] per Henry Brooke LJ, and [140]-[143] per Chadwick LJ Back

17   Anti-terrorism, Crime and Security Act 2001, Part IV Section 28 Review by Lord Carlile of Berriew Q.C., p. 14, para. 4.10 Back

18   A, X and Y and others at paras. [35] and [42]-[44] per Lord Woolf CJ, [91]-[98] per Henry Brooke LJ, and [147]-[151] per Chadwick LJ Back

19   Human Rights Act (Designated Derogation) Order 2001, SI 2001 No. 3644 Back

20   The Opinion of the Commissioner is reproduced as an appendix to this Report, Ev 9-Ev 14 below Back

21   A, X and Y and others at para. [60] Back


 
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