Joint Committee On Human Rights Fifth Report

Question 3: Does the restriction of 'suspected international terrorists' to people who are not nationals of the United Kingdom unlawfully discriminate against those detained on the ground of nationality, violating ECHR Article 14 taken together with Article 5 or Article 26 of the ICCPR taken alone?

35. Under ECHR Article 14. In November 2001, we were concerned that the use of immigration legislation as the vehicle for authorising detention of suspected international terrorists might lead to discrimination on the ground of nationality. While recognising that the differential treatment might be found to have an objective, rational and proportionate justification, we were not persuaded that the Government had sufficiently taken on board the risk of discrimination.[22]

36. Since then, the matter has been litigated in A, X and Y and others v. Secretary of State for the Home Department.[23] The Government has argued before SIAC and the Court of Appeal that differential treatment of foreign nationals for this purpose, in the context of powers under the immigration legislation, is objectively and rationally justified, and proportionate to the pressing need to protect against international terrorism, and hence is compatible with the ECHR. The Government has relied particularly on the recognition, in public international law, that every sovereign state is entitled to regulate the entry of foreign nationals to its territory. This is said to mean that some discrimination on the ground of nationality is inevitably legitimate. Foreign suspected international terrorists are objectively and rationally in a different situation from United Kingdom nationals who are suspected international terrorists, because the United Kingdom owes a higher duty of protection towards its own nationals than towards foreign nationals. It is therefore rational to allow foreign nationals (but not United Kingdom nationals) to be removed if they threaten national security. If they cannot be removed without violating their human rights, it is rational, and proportionate to the threat that they pose, to allow them to be detained until a safe country can be found to accept them.

37. This argument was rejected by SIAC in the first case to be heard under this legislation. SIAC took the view that it did not justify treating suspected international terrorists differently on the basis of their nationalities. The discrimination inherent in the detention power was said to be insufficiently related to the objective of the legislation to be necessary and proportionate. A power to detain indefinitely all suspected international terrorists, regardless of their nationalities, would have satisfied ECHR Article 14, but merely entering a derogation from Article 14 would not have done so, because SIAC considered that there was not a reasonable relationship between the means employed and the aims sought to be pursued.

38. However, the Government's argument was accepted on appeal by the Court of Appeal. It was held that UK nationals and aliens, while certainly differently treated, were not in a relevantly analogous position, because a UK national has a right of abode in the jurisdiction while an alien has only a right not to be removed (save in accordance with immigration law). On the question of rational relationship and proportionality, the court accorded a degree of deference to the views of the executive.[24]

39. That decision in A, X and Y and others v. Secretary of State for the Home Department is understood to be the subject of a petition to the House of Lords for leave to appeal.[25] We consider that the Government is entitled at present to rely on the Court of Appeal's acceptance of its argument that differential treatment on the ground of nationality is justified for the purposes of ECHR Article 14. We note, however, that the Government might have to review its position in the light of any future decision of the House of Lords or the European Court of Human Rights in A, X and Y and others v. Secretary of State for the Home Department or similar cases.

40. Under ICCPR Article 26, there is a right to be free from discrimination on grounds which include nationality. If it is legitimate for the Government to advance the argument that differential treatment of non-nationals is justified for the purpose of ECHR Article 14 and ICCPR Article 2 is accepted, it would be equally legitimate for it to do so in respect of the free-standing right to be free of discrimination under ICCPR Article 26.

Question 4: Does the definition of 'suspected international terrorist' satisfy the requirements of the principle of legal certainty?

41. When we examined the Bill in November and December 2001, we were worried that the definition of 'suspected international terrorist' was insufficiently precise to meet the standards of the principle of legal certainty. We were particularly concerned about the provision treating as an international terrorist anyone who had links with an international terrorist or an international terrorist group.[26] There was a risk that the notion of 'links' would be insufficiently precise to avoid arbitrariness, and so would have made it impossible to satisfy the requirement, under ECHR Article 5.1, that a detention be 'lawful' and 'in accordance with a procedure prescribed by law'.[27] The Government decided not to remove the reference to 'links', but agreed to introduce amendments to restrict the class of international terrorists to those who have links with international terrorist groups (rather than individual terrorists), and to define 'links' as consisting of support of or assistance to an international terrorist group.[28]

42. In his Review of these provisions, Lord Carlile of Berriew Q.C. draws attention to the possibility that even the amended version of the definition of 'international terrorist' may be uncertain because of the presence of the word 'links', particularly as 'international terrorist group' is not defined, and goes beyond the list of organisations proscribed under the Terrorism Act 2000. He gives the example of the wife of a member of an international terrorist group, who might know nothing of the group's activities but, by providing domestic arrangements for her husband, could fall to be treated as supporting or assisting the group. Lord Carlile recommends that consideration should be given to removing the word 'links' from the definition, which could be amended to refer to a person who 'otherwise supports or assists an international terrorist group'. While accepting that the change would not alter the substance of the law, Lord Carlile suggests that it would be consistent with an effort to maintain clear definitive standards.[29] We agree, and suggest that the word 'materially' might usefully be included before 'supports or assists' in an amended version of the definition. However, for the purpose of deciding whether to extend the life of sections 21 to 23, we have to take the definition as it stands. We consider that the present definition will suffice as long as it can be shown that the power is being used in a justifiable way in all cases.

Question 5: Are the powers being used in individual cases in a manner compatible with human rights?

Assessment of the evidence in individual cases

43. We have ourselves received little information about the way in which the Home Secretary has assessed the specific evidence in individual cases, although the Home Secretary's memorandum to us provides some general indication of the nature of the evidence which he has been considering.[30] In this respect, Lord Carlile's ATCS Act Report is very helpful. He explains that he has examined the material (including 'closed' material subject to security restrictions) put before the Home Secretary in the case of each detainee, and concludes, 'In every case I was entirely satisfied that the criteria [for detention under section 23(1) of the Act] were met, and would have been very surprised if certification had not taken place.'[31] Although it was not always possible to be precise as to the detainee's exact group affiliation, Lord Carlile concluded that it was necessary to concentrate on the threat to public safety in the United Kingdom and abroad. That threat was established, and flexibility was needed, because international terrorists often work in small cells, may not be easy to categorise as members of known groups, and operate in a context in which new groups can appear suddenly. That being so, Lord Carlile considered that the provisions operated satisfactorily and fairly having regard to the context.[32]

44. We have to operate without the sensitive intelligence information which was made available to Lord Carlile about the grounds on which the Home Secretary is using the power to certify people as suspected international terrorists. This makes it impossible for us to express an independent view about the compatibility of the provisions, in practice, with human rights. Nevertheless, we can take account of the material made available to Lord Carlile, the information he has provided (both in his ATCS Act Report and in his letter to our Chair) about the way in which he approaches his task, his previous experience of dealing with such evidence in his different role as reviewer of the operation of the Terrorism Act 2000, and the fact that he has a continuing role in regularly reviewing the operation of sections 21 to 23 of the ATCS Act.

45. In our view, it is particularly significant that Lord Carlile has seen all the evidence relating to individual cases and has declared himself to be entirely satisfied that the statutory criteria for detention were met in each case. In the light of this factor, we consider that each House can legitimately accept—

  • that the powers under section 21 of the ATCS Act are being used satisfactorily and fairly, and

  • that the rigour of the review procedure under section 28 of the Act is providing adequate assurance that the powers to certify and detain people under sections 21 to 23 of the Act are being used in a manner compatible with Convention rights.

22   Joint Committee on Human Rights, Second Report of 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37/HC 372, p. xii, paras. 38-39 Back

23   [2002] EWCA Civ 1502, CA Back

24   A, X and Y and others at paras. [56] per Lord Woolf CJ, [100]-[133] per Henry Brooke LJ, and [152]-[153] per Chadwick LJ Back

25   Lord Carlile's ATCS Act Report, p. 8, para. 3.1 Back

26   ATCS Bill, cl. 21(2)(c) Back

27   Joint Committee on Human Rights, Second Report of 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37/HC 372, p. xi, paras. 36-37 Back

28   See now ATCS Act, s. 21(2)(c) and (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. 19 Back

29   Anti-terrorism, Crime and Security Act 2001, Part IV Section 28 Review by Lord Carlile of Berriew Q.C., pp. 11-13, paras. 4.3-4.7 Back

30   Home Secretary's memorandum, paras. 2(c) and 2(d), Ev 2-Ev 3 below Back

31   Lord Carlile's ATCS Act Report, p. 13, para. 4.8 Back

32   ibid., p. 14, paras. 4.09-4.11 Back

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