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
I hope this is of assistance in the work of your
1. What is your assessment of the current
nature and seriousness of the threat to the United Kingdom from
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
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 removedand for whom a criminal prosecution is not an
optionwe 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
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
2(c) What was the general nature of the information
giving rise to reasonable suspicion that they are international
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
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
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
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 Novemberthe same day on
which the Bill was introducedcoming into force on 1 3 November
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
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