Joint Committee On Human Rights Fifth Report


3. Letter from the Chairman to Lord Carlile of Berriew QC

REVIEW OF THE ANTI-TERRORISM, CRIME AND SECURITY ACT 2001

Thank you for taking the time to meet me to discuss the relationship between the work of your statutory review of the detention provisions in Part 4 of the Anti-terrorism, Crime and Security Act 2001 ('the Act') and the role of the Joint Committee on Human Rights ('the JCHR') in relation to the same Act. In the light of our discussion, this letter sets out my understanding of the relationship between our inquiries, and seeks your assistance in relation to the JCHR's review of the detention provisions in sections 21 to 23 of the Act.

The JCHR is considering the human rights implications of the Act as a whole. The examination falls into several parts. First, in relation to the detention provisions under sections 21 to 23, the JCHR has undertaken to review the human rights implications before the first renewal order, in time for Parliament to know its views when considering any draft order laid under section 29.[46] Secondly, the JCHR is considering the procedures for derogating from the European Convention on Human Rights 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[47] in respect of Article 5 of the ECHR made for the purposes of section 23 of the 2001 Act. The JCHR's review of that particular derogation has significant implications for its review of the human rights implications of sections 21 to 23. Thirdly, the JCHR has said that it will seek further evidence on, and give further consideration to, other matters of concern, including the provisions on disclosure of information in Part 3 of the Act, due process rights on appeal from the Special Immigration Appeals Commission, extensions to police powers in Part 10, provisions relating to the retention of communications data in Part 11, and powers to give effect to EU 'third pillar' obligations by subordinate legislation.[48] There is no timetable for this, but the JCHR is likely to want to examine certain issues in time for its views to be taken into account by Parliament and the Home Secretary before they decide whether to extent these powers, which would otherwise lapse on 14th December 2003 (see sections 104 and 105 of the Act).

In relation to the first part of this programme, the review of the detention provisions, the Home Secretary has today laid before Parliament a draft order under section 29 of the Act to extend the life of sections 21 to 23 of the Anti-Terrorism Act. The JCHR is therefore preparing to report to each House on the human rights implications of sections 21 to 23, including the derogation from Article 5 of the ECHR in respect of those provisions, as a matter of urgency. Unlike your review and that of the statutory Committee of Privy Councillors chaired by Lord Newton, the JCHR's remit is limited to human rights matters in the United Kingdom, and excludes consideration of individual cases. The JCHR's focus will therefore be narrower than yours.

Nevertheless, the existence of your review is likely to be a significant factor in the JCHR's inquiry. The JCHR will have to consider whether sections 21 to 23 of the Act are compatible with the right to liberty under Article 5 of the ECHR and Article 9 of the International Covenant on Civil and Political Rights (ICCPR), and with the right to freedom from discrimination under Article 14 taken together with Article 5 of the ECHR and under Article 26 of the ICCPR. For this purpose, it will be asking whether ECHR Article 5 and ICCPR Article 9 have to be read subject to the purported derogations from those instruments. The answer will depend partly on whether the derogations are legally valid in international law, that is whether the conditions for derogating under ECHR Article 15 and ICCPR Article 4.1 are currently satisfied. Those conditions include a requirement for a public emergency threatening the life of the nation, and a requirement that any derogation must be strictly required by the exigencies of the situation.

In November and December 2001, the JCHR was unable to obtain, from the Home Office, or other sources, the evidence which could satisfy it that there was a public emergency threatening the life of the nation, or that the derogations were strictly required by the exigencies of the situation, although the JCHR recognised that such evidence might exist.[49] The Committee is likely to find itself in the same position when it comes to consider the renewal order. It will, however, be able to say whether the separate reviews by you and by the Committee chaired by Lord Newton, as well as by the Special Immigration Appeals Commission and the courts in individual cases, are likely to provide adequate safeguards against abuse of the power to derogate from rights under the ECHR and the ICCPR, and against unjustified use of the detention power. If you and the Committee chaired by Lord Newton have access to the appropriate evidence, and are in a position to report your conclusions as to the need for the measures and the adequacy of safeguards against abuse, it would help the JCHR to evaluate the capacity of the institutional arrangements to ensure the continuing legality of the derogations.

It would, therefore, be very helpful for the JCHR to know what steps, if any, you have been able to take to obtain and scrutinise evidence from the Home Office, the Security and Intelligence Services, the police, Customs and Excise and others about—

  • the current nature and seriousness of the threat to the United Kingdom from international terrorism;

  • the effectiveness of the use of the detention provisions in sections 21 to 23 of the Act in combatting that threat;

  • whether the threat could be effectively combatted without those powers;

  • whether the safeguards under the Act are working adequately; and

  • whether, save for the deprivation of liberty, the special detainees are otherwise able, in your view, to exercise their other fundamental rights so far as is compatible with the exigencies of the emergency identified by the Government.

The Committee is making similar inquiries of Lord Newton's Committee.

It would be very helpful to the Committee to have your response by 31 January or as soon as possible thereafter.

23 January 2003


46   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

47   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

48   Joint Committee on Human Rights, Second Report of 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37, HC 372, p. xx, para. 79 Back

49   See Joint Committee on Human Rights, Second Report of 2001-02, Anti-terrorism, Crime and Security Bill, HL Paper 37, HC 372, p. x, para. 30; 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


 
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