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under the now repealed Part 4 of the Anti-Terrorism Crime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Whilst Parliament repealed Part 4 of the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 2009. Back
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
| 
