Joint Committee On Human Rights Fifth Report

2. Letter from Rt Hon David Blunkett MP, Home Secretary, to the Chairman


Thank you for your letter of 23 January about the Joint Committee on Human Rights inquiry into the human rights implications of the ATCS Act as it is currently operating. You asked for information on seven broad questions in relation to the detention powers under the Act and the related derogation from Article 5 of the European Convention on Human Rights (ECHR).

I consider each of these in turn, in the attached annex.

I hope this is of assistance in the work of your Committee.


1.    What is your assessment of the current nature and seriousness of the threat to the United Kingdom from international terrorism?

The threat posed to the UK by Al Qaida and its associated networks constitutes a public emergency threatening the life of the nation within the meaning of Article 15(1) of the European Convention on Human Rights.

There is continuing and escalating evidence for this. The Security Service assessment is that Al Qaida and associated groups pose an immediate and dangerous threat to the UK.

Since last summer, public pronouncements reportedly from Usama Bin Laden and his representatives have provided confirmation of the threat. Recent arrests and recovery of terrorist material in the UK demonstrate an increased intent and capability to target the UK.

Where terrorism is concerned, our paramount responsibility is to ensure public safety and national security. So long as the present public emergency subsists, where a person is suspected of terrorism of the sort which led to 11 September 2001 and is considered to be a threat to national security but cannot currently be removed—and for whom a criminal prosecution is not an option—we believe that it is necessary and proportionate to provide for extended detention, pending removal.

2 (a)  How many people are, or have been detained under sections 21 to 23 of the Act?

Fifteen foreign nationals have so far been detained using the powers under the ATCS Act. Two of them have voluntarily left the UK. The other thirteen remain in detention.

2(b)  What are the periods for which they have been detained?

Of the fifteen foreign nationals: eight were detained in December 2001, one in February 2002, two in April 2002, one in October 2002, one in November 2002 and two in January 2003.

The two foreign nationals no longer in detention were among the original eight detainees. One voluntarily left the UK in December 2001. And the other voluntarily left in March 2002.

2(c)  What was the general nature of the information giving rise to reasonable suspicion that they are international terrorists?

My decisions to certify and detain these individuals, under the ATCS Act, were made on the basis of detailed and compelling intelligence and other material, including their individual activities and links in relation to terrorism of the sort which led to 11 September 2001.

On the basis of that evidence, which will be examined by the Special Immigration Appeals Commission when the individuals' appeals are heard as provided for under the ATCS Act, I issued suspected international terrorist certificates under Section 21 of the Act. Section 21 enables me to do so where I reasonably believe the person's presence in the UK is a risk to national security and where reasonably I suspect that the person is a terrorist.

2(d)  What are the methods used to keep under review the justifications for their detention?

The evidence on which my decisions to detain these individuals were based will be examined by the Special Immigration Appeals Commission when the individuals' appeals are heard, as provided for under the ATCS Act. In addition the ATCS Act provides or the Commission regularly to review the certificates. The Commission is equivalent to the High Court. It has the power to overturn the certificates which I have issued in respect of those detained.

Detainees also have a right to apply to the Commission for bail at any time.

2(e)  How many detainees (if any) have been released, and what were the reasons for releasing them?

All those detained are free to leave the UK if they wish and two have already done so.

So far three of the detainees have applied to the Special Immigration Appeals Commission for bail. The Commission rejected all three applications.

3.  What is your assessment of the effectiveness of the detention of the detainees in helping to combat the threat from terrorism in the United Kingdom or elsewhere?

The detention powers in Part IV of the Anti­terrorism Crime and Security Act are a cornerstone of the UK's anti­terrorism measures. It is essential that we are able to take firm, swift action against those who threaten the safety of this country.

We are certain that these powers have had a disruptive effect on terrorists.

It is difficult to state conclusively that the powers are having a deterrent effect. But we strongly believe that to be the case.

4.  What are the methods by which the Government is keeping under review the factors on which the United Kingdom relied when giving notice of its derogations from the right to liberty under the ECHR and ICCPR?

I closely and regularly review the need for the detention powers and the derogation from ECHR Article 5(1) and the feasibility of other possible options. In doing so I take full account of the advice which I receive from the police and security services as well as other sources. I have concluded that there is no alternative but to maintain the powers to detain, and the ECHR and ICCPR derogation.

The Court of Appeal upheld our position on the need for these powers in its judgment last October.

I will continue to keep the position under close review.

5.  Why, in the Government's view, is it necessary for the detention provisions to continue in force after the first renewal date in March?

The draft Anti­terrorism, Crime and Security Act 2001 (Continuance in force of sections 21­23) Order 2003 provides for the continuation in force of the immigration powers under Part IV of the 2001 Act to certify, and to detain pending removal, suspected international terrorists, subject to safeguards. The powers are continued in force from 14 March 2003 until 1 3 March 2004.

It would be negligent of the Government to wait until a catastrophe occurred before acting. Where terrorism concerned, our paramount responsibility is to ensure public safety and national security. That threat, confirmed by recent events in Bali, Mombassa, Yemen, here and elsewhere in Europe, is already beyond doubt. So long as the public emergency continues, where a foreign national is suspected of terrorism of the sort which resulted in events of September 11th and of being a threat to national security, and where we want to remove them but removal is not presently possible, we believe it is necessary and proportionate to continue to provide for extended detention pending removal.

6.  Are there any other matters which, in your view, are relevant to the justification for allowing the detention provisions to continue in force?

The Court of Appeal unanimously upheld our position on the need for these detention powers, last October. The Court agreed that the detention powers are not discriminatory and comply with the European Convention on Human Rights.

The persons detained have been detained under immigration powers. They are not being held pending criminal charges.

All of those detained have had access to legal advice throughout the detention period. There is no limit to the number of legal visits the detainees may receive.

Following the draft Order to continue the powers of detention in the Anti­terrorism Crime an Security Act 2001 for a further 12 months, which I laid before Parliament on 23 January and which will be debated by both Houses of Parliament early in March, I hope shortly to be in a position to lay before both Houses Lord Carlile's report on the workings of detention under sections 21­23 of the ATCS Act.

7.  What are the reasons for the Government's view, in November 2001, that it was appropriate to make a derogation order under section 14 of the Human Rights Act 1998 in respect of measures which had not yet been laid before Parliament or published?

The sequence in which the various steps in relation to the Derogation Order and the ATCS Bill were taken was entirely proper. The Order was made on 11 November 2001. It was laid before both Houses of Parliament on 1 2 November—the same day on which the Bill was introduced—coming into force on 1 3 November 2001.

One consequence of the Order being made very shortly before the Bill was introduced was that I was able to state that, in my view, the provisions of the Bill were compatible with Convention rights. I would not have been able to do that had the Order not been made.

The Order was debated on 19 November 2001, a week after the Bill was published. In the House of Commons debate on the Derogation Order, which took place after Second Reading of the ATCS Bill, Beverley Hughes acknowledged that, if Parliament did not approve the measures in the Bill necessitating the proposed derogation from Article 5(1) of the ECHR, there would be no need for the Order and it would be revoked.

31 January 2003

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