Enhancing Parliament's role in relation to human rights judgments - Human Rights Joint Committee Contents


Letter from the Chair of the Committee to Rt Hon Alan Johnson MP, Home Secretary, dated 15 July 2009

A V UNITED KINGDOM (APP NO 3455/05, 19 FEBRUARY 2009, GRAND CHAMBER)

  The Joint Committee on Human Rights is continuing its practice of reviewing the implementation of judgments of the European Court of Human Rights (ECtHR) finding the UK to be in breach of the European Convention on Human Rights (ECHR). On 19 February 2009, the Grand Chamber of the European Court of Human Rights found the following violations of the ECHR in respect of the detention under the now repealed Part 4 of the Anti-Terrorism Crime and Security Act 2001 (ATCSA) of a number of applicants:

    — Article 5(1): The Court found that the derogating measures were disproportionate in that they discriminated unjustifiably between nationals and non-nationals (para 190);

    — Article 5(4): On the basis of the open material disclosed to four applicants, the Court concluded that there had been a violation of Article 5(4) as the applicants were not in a position effectively to challenge the allegations against them (paras 223 and 224);

    — Article 5(5): The Court held that there was no enforceable right to compensation for the applicants' unlawful detention in breach of Articles 5(1) and/or 5(4).

  Whilst Parliament repealed Part 4 of the ATCSA 2001, following the judgment of the House of Lords in this case, the Grand Chamber judgment has wider implications for the Government's policy on those suspected of terrorism.

  Following the repeal of Part 4, Parliament enacted a system of control orders which may be imposed on both nationals and non-nationals (Prevention of Terrorism Act 2005). This legislation is subject to annual renewal, on which we have reported each year. Our most recent Report was published on 27 February 2009.[12] Relying on the Grand Chamber judgment in A v United Kingdom, we recommended that the controlled person should be provided with the gist of the closed material which supports the allegations made against them. We also recommended that the statutory framework should be amended to provide that rules of court for control order proceedings require the Secretary of State to provide a summary of any material which fairness requires the controlled person to have an opportunity to comment on.[13] The Government rejected our recommendations, stating that it was possible under section 3 of the Human Rights Act 1998 to interpret the existing provisions compatibly with Article 6. Describing the procedure to be followed by the judge and the Secretary of State, the Government concluded that "no control order will be upheld through a process whereby the individual's right to a fair trial has not been protected".[14]

  The Government has also extended, by the Terrorism Act 2006, the maximum period of pre-charge detention for terrorism offences from 14 to 28 days. This is subject to annual renewal by Parliament on which we have reported. In our most recent annual renewal Report, we pointed to the Grand Chamber decision in A and the recent House of Lords' decision in AF.[15] We expressed concern that the statutory framework for the extension of pre-charge detention expressly provides for information to be withheld from the suspect and their lawyer, and for them to be excluded from parts of the hearing at which the determination of whether or not to authorise further detention is made. We recommended that the legal framework governing judicial authorisation of extended detention be amended to provide stronger procedural safeguards for the rights of the detained person such as those we suggested as amendments to the Counter-Terrorism Bill. We stated that unless those amendments to the statutory framework are made, we remained of the view that the renewal of the maximum extended period of 28 days risks leading in practice to breaches of Article 5(4).[16]

  We wrote to you on 11 June 2009 asking how the Government proposes to respond to the House of Lords judgment in AF and requested a reply by 25 June 2009. We note that we are still awaiting a response and look forward to receiving it as soon as possible.

  In the light of the above, and in addition to our questions in our June letter, we would be grateful for your response to the following questions:

    1. What steps has and is the Government taking to implement the Grand Chamber judgment in A v UK?

    2. Specifically, how do proceedings for (a) control orders and (b) extended periods of pre-charge detention comply with the requirement that sufficient information should be disclosed to individuals so that they can effectively challenge the allegations against them?

    Schedule 8, paragraph 5 of the Terrorism Act 2000 appears to preclude a claim for compensation where an individual is detained under the Act and subsequently released without charge.

    3. Does the Government consider paragraph 5 of Schedule 8 to the Terrorism Act 2000 to be compatible with the right in Article 5(5) ECHR to compensation for detention in contravention of Article 5? If so, please explain why.

    4. In addition to paragraph 5 of Schedule 8 of the Terrorism Act 2000, are there other circumstances in which individuals might be detained without an enforceable right to compensation? If so, what are they?

    5. How does the Government propose to ensure that individuals are able to claim compensation domestically for any unlawful detention without having to go to the ECtHR?

  We understand that the Government has provided information to the Committee of Ministers which is currently being assessed. Please provide us with copies of the Government's submissions to the Committee of Ministers and ensure that we continue to be updated as further information is provided.

15 July 2009










12   Fifth Report of Session 2008-09, Counter-Terrorism Policy and Human Rights (Fourteenth Report): Annual Renewal of Control Orders Legislation 2009Back

13   Para. 27. Back

14   The Government Reply to the Fifth Report from the JCHR, Counter-Terrorism Policy and Human Rights (Fourteenth Report): Annual Renewal of Control Orders Legislation 2009, Cm 7625, May 2009, p 1. Back

15   Secretary of State for the Home Department v AF [2009] UKHL 28. Back

16   Eighteenth Report of Session 2008-09, Counter-Terrorism Policy and Human Rights (Fifteenth Report): Annual Renewal of 28 Days, HL Paper 199, HC 726, para 29. Back


 
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