The UK's anti-terror legislation and the House of Lords: The first Skirmish

Human Rights Law Review

Volumn 5, Issue 2, 2005, Pages 403-421

  Shah, Sangeeta ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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EID: 28744458428     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngi025     Document Type: Review

References (125)

1. For a short exposition of the UK's immediate response to the attacks of 11 September 2001 see, Katselli and Shah, 'September 11 and the UK Response', (2003) 52 International and Comparative Law Quarterly 245.
2. See Concluding Observations of the Committee on the Elimination of Racial Discrimination regarding the United Kingdom and Northern Ireland, 10 December 2003, CERD/C/63/CO/11 at para. 17; Conclusions and Recommendations of the Committee Against Torture regarding the United Kingdom, Northern Ireland, Crown Dependencies and Overseas Territories, 10 December 2004, CAT/C/CR/33/3; Council of Europe Commissioner for Human Rights Opinion 1/2002, 28 August 2002 at para. 40; Privy Councillor Review Committee (Newton Committee), Anti-Terrorism, Crime and Security Act 2001 Review: Report, December 2003, HC 100; and, the various reports of the Joint Committee on Human Rights, specifically, Second Report of Session 2001-2002, 16 November 2001, HL 37, HC 372 at paras 38-9; Fifth Report of Session 2002-2003, 24 February 2003, HL 59, HC 462 at para. 32; Sixth Report of Session 2003-2004, 23 February 2004, HL 38, HC 381 at para. 35; and, Eighteenth Report of Session 2003-2004, 21 July 2004, HL 158, HC 713 at paras 42-4.
3. [2004] UKHL 56.
4. 2001 Chapter 24.
5. 2000 Chapter 11.
6. 2178 UNTS 229.
7. For a full discussion of the ATCSA see, Fenwick, 'The Anti-Terrorism, Crime and Security Act 2001: A Proportionate Response to 11 September?', (2002) 65 Modern Law Review 724
8. and, Tomkins, 'Legislating Against the Terror: The Anti-Terrorism, Crime and Security Act 2001', (2002) Public Law 205.
9. S.21(1) reads: (1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably- (a) believes that the person's presence in the United Kingdom is a risk to national security, and (b) suspects that the person is a terrorist.
10. S.23(1) reads: (1) A suspected international terrorist may be detained under a provision specified in subsection (2) [relevant provisions of the Immigration Act 1971] despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by- (a) a point of law which wholly or partly relates to an international agreement, or (b) a practical consideration.
11. 1996-V 1831; 19 (1997) 23 EHRR 413 especially at para. 80.
12. This case follows the judgment of the ECtHR in Soering v UK A 161 (1989);
13. (1989) 11 EHRR 439, and it is to this point of law which s.23(1)(a) refers.
14. ETS No. 5.
15. Lord Nicholls, supra n. 3 at para. 81, citing the Attorney-General's arguments. However, Lord Nicholls notes that 'this freedom is more theoretical than real. This is demonstrated by the continuing presence in Belmarsh of most of those detained. They prefer to stay in prison rather than face the prospect of ill treatment in any country willing to admit them.' (ibid).
16. 999 UNTS 171. Article 5(1) of the ECHR and Article 9 of the ICCPR provide guarantees against arbitrary detention.
17. The text of both derogations is almost identical. They were communicated to the relevant authorities on 18 December 2001. The text of the derogation from the ECHR can be found at: http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT= 005&CV=0&NA=&PO=999&CN=999&VL=1&CM=9&CL=ENG;
18. and, the text of the derogation from the ICCPR can be found at: http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/ chapterIV/treaty6.asp. Both derogations were withdrawn on 15 March 2005.
19. Human Rights Act 1998 (Designated Derogation) Order 2001, SI 2001 No. 3644. The HRA formally incorporates the substantive human rights guarantees within the ECHR and its Protocols into UK domestic law. S.14 of the HRA provides for the Home Secretary to make an order for prospective derogations to be designated for the purposes of the HRA. For further information on the HRA see, Clayton and Tomlinson, The Law of Human Rights (Oxford: Oxford University Press, 2000), specifically at 107-257 and 1409-1529
20. Wadham, Mountfield and Edmundson, Blackstone's Guide to the Human Rights Act 1998 (Oxford: Clarendon, 2003);
21. and, Lester and Clapinska, 'Human Rights and the British Constitution', in Jowell and Oliver (eds), The Changing Constitution, 5th edn (Oxford: Oxford University Press, 2004) 62.
22. Details of the detainees and the proceedings relating to their detention can be found on the Home Office website at: http://www.homeoffice.gov.uk/docs3/atcsa.detainees.html.
23. Details of the allegations against the detainees can be found in: 'Who are the Terror Detainees?', BBC News, 11 March 2005 (available at: http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk/4101751.stm);
24. Dodd, 'The 11 Belmarsh Detainees Likely to be Freed', Guardian, 11 March 2005
25. and, Naughton, 'Judge Grants Bail to Belmarsh Terror Detainees', The Times, 10 March 2005.
26. [2002] HRLR 1274. SIAC (Collins J, Kennedy LJ and Mr Ockleton) rejected contentions that the Designated Derogation Order was invalid as there was no emergency threatening the life of the nation and that the Part 4, ATCSA powers were a disproportionate response to any emergency that did exist. However, it did uphold the claim that the restriction of detention to foreign nationals only was discriminatory and as such contrary to Article 14, ECHR.
27. [2002] EWCA Civ 1502
28. [2004] QB 335. The Court of Appeal (Lord Woolf CJ, Brooke LJ and Chadwick LJ) unanimously allowed an appeal by the Home Secretary from the decision of SIAC, holding that restricting detention to only foreign nationals who could not be deported was a proportionate response to the emergency facing the UK for the purposes of Article 15, ECHR, and was not discrimination in breach of Article 14, ECHR.
29. Lord Walker provided the dissenting opinion.
30. A 3 (1961); (1979-80) 1 EHRR 15. The definition given is 'an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.' (para. 28).
31. (1969) 12 YB 1. To constitute a public emergency: '(1) It must be actual or imminent. (2) Its effects must involve the whole nation. (3) The continuance of the organised life of the community must be threatened. (4) The crisis or danger must be exceptional, in that the normal measures or restrictions permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.' (para. 153).
32. This is not a specific requirement of Article 15. However, it was considered to be inherent within the meaning of the term 'emergency' and echoes the views of the UN Human Rights Committee in General Comment No. 29, 31 August 2001, CCPR/C/21/Rev.1/Add.11; 40 9 IHRR 303 (2002); and, those of the Joint Committee on Human Rights in its Eighteenth Report of the Session 2003-4, supra n. 2 at para. 4.
33. Specifically referring to the ECtHR's decision in Marshall v UK, 10 July 2001, Application no. 41571/98.
34. Para. 25, supra n. 3.
35. E/CN.4/1985/4, Annex (1985).
36. A 25 (1978); (1979-80) 2 EHRR 25.
37. Para. 29, supra n. 3.
38. See also the comments of Lord Hope at para. 112; Lord Scott at para. 154; Lord Rodger at para. 166; Lord Walker at para. 208; and, Baroness Hale at para. 226. However, Lord Scott pointed out that government assessments may not always be correct, referring to 'the faulty intelligence assessments on the basis of which United Kingdom forces were sent to take part, and are still taking part, in the hostilities in Iraq' (para. 154, ibid.).
39. Para. 119, supra n. 3.
40. This was an interesting 'about turn' considering Lord Hoffman's striking speech in Secretary of State for the Home Department v Rehman [2001] UKHL 47, which reads in part: This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions ... require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. (para. 62) Such a dramatic change in opinion could be interpreted as a reaction to the UK government's excessive use of national security reasoning post-September 11 leading to the UK's participation in the invasion of Iraq.
41. Para. 92, supra n. 3.
42. Para. 91, ibid.
43. Para. 93, ibid.
44. Para. 96, ibid.
45. Lord Hoffman refrained from any discussion on this point. See para. 97, ibid.
46. Lord Hope, para. 121, ibid.
47. Para. 37, ibid. This view was echoed by the dissenting judge, Lord Walker: See paras 197 and 209.
48. Lord Hope, para. 131, ibid. Similar comments were also made by Lord Bingham at para. 40 (who also refers to the report of the European Commissioner for Human Rights) and Lord Rodger at para. 176.
49. Lord Nicholls, para. 80, ibid.
50. See para. 36, ibid., neatly summarised by Lady Hale: 'We have always taken it for granted in this country that we cannot be locked up indefinitely without trial' (para. 243, ibid.).
51. Specific reference was made to the judgments of the ECtHR in Kurt v Turkey 1998-III 1152
52. (1998) 27 EHRR 373
53. Garcia Alva v Germany (2001) 37 EHRR 335
54. and, Aksoy v Turkey 1996-VI 2260
55. (1996) 23 EHRR 553.
56. See Lord Bingham, paras 36 and 41, ibid.
57. Lord Scott, para. 155, ibid.
58. Lord Bingham, para. 42, ibid.
59. Lord Bingham even outlined the measures that had been taken in respect of one of the international terrorists who had been released on bail to minimise the risk that individual posed to national security, suggesting that '...conditions of this kind, strictly enforced, would effectively inhibit terrorist activity. It is hard to see why this would not be so.' (para. 35, ibid.) The measures he outlines in respect of 'G' are the foundations of those provided for by the Prevention of Terrorism Act 2005, which was adopted in response to the A & Others judgment. See discussion infra.
60. Para. 168, supra n. 3.
61. Para. 33, ibid.
62. See para. 34, ibid.
63. Para. 218, ibid.
64. See Shestack, 'The Jurisprudence of Human Rights', in Meron (ed.), Human Rights in International Law: Legal and Policy Issues (Oxford: Clarendon, 1988) 69 at 89-90.
65. Para. 217, supra n. 3.
66. S.28 (1) provides that 'The Secretary of State shall appoint a person to review the operation of sections 21 to 23.'
67. S.122(1) provides that 'The Secretary of State shall appoint a committee to conduct a review of this Act.'
68. Supra n. 18.
69. Supra n. 2.
70. Ibid. at para. 197.
71. Ireland v UK, supra n. 27.
72. See Belgian Linguistics A 6 (1968); (1979-80) 1 EHRR 252 at para. 10.
73. [2004] UKHL 39.
74. These are listed as 'any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or status.' [footnote added].
75. Supra n. 58 at para. 42 [footnote added]. Interestingly question 5 of this schema uses the idea of 'objectively justifiable' to represent the two-limbed test of 'reasonable and objective justification' used by the ECtHR (see Belgian Linguistics, supra n. 57) where an objective justification is one which pursues a legitimate aim and a reasonable justification is determined by assessing the proportionality of the measure.
76. Paras 55 and 56, supra n. 3.
77. The Attorney General relied upon the ECtHR's decision in Moustaquim v Belgium A 193 (1991);
78. (1991) 13 EHRR 802 for confirmation of this.
79. 75 UNTS 287.
80. 189 UNTS 137.
81. GA Res. 40/144, 13 December 1985, A/40/RES/53.
82. Specifically, Shaugnessy v United States, ex rel Mezei 345 US 206 (1953);
83. Fernandez v Wilkinson 505 F Supp 787 (1980);
84. and, Zadvydas v Davis 533 US 678 (2001).
85. Lady Hale, supra n. 3 at para. 235.
86. Ibid. at para. 63.
87. CRI (2004) 26, 17 March 2004.
88. (1985) 79 American Journal of International Law 1072. Lord Bingham also referred to comments made by national bodies including the Newton Committee; and the Joint Committee on Human Rights reports on the ATCSA legislation.
89. Para. 69, supra n. 3. This is a noteworthy rejection of the view that the global war on terrorism is an armed conflict.
90. Ibid.
91. Supra n. 27 at para. 228.
92. Ibid. at para. 230.
93. '...it was considered by the Secretary of State that the serious threats to the nation emanated predominantly (albeit not exclusively) and more immediately from the category of foreign nationals', para. 19, Witness Statement of Mr Whalley as cited by Lord Rodger at para. 182, supra n. 3.
94. See the comments of Lord Bingham at para. 54, ibid.
95. See, for example, the comments of Lord Hope, at para. 99; Lord Scott, at para. 154; and, Lord Rodger at paras 161 and 177-8.
96. In fact Baroness Hale explicitly acknowledged this. See para. 219, ibid.
97. [1917] AC 260.
98. [1942] AC 204.
99. [1964] AC 763.
100. See Gearty, 'Civil Liberties and Human Rights', in Bamforth and Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford: Hart, 2003) 371 at 385-7.
101. As was the situation in Secretary of State for the Home Department v Rehman [2001] UKHL 47, in which the House of Lords took a particularly deferential approach to the powers of the Home Secretary to assess what constituted a threat to national security and the risk posed by individuals who were being considered for deportation on national security grounds. Essentially the court deferred to the government's opinion on what constituted a threat, but in that case it did not need to assess on human rights grounds the action taken to thwart this threat.
102. Following his speech in Belmarsh one assumes that Lord Hoffman would not advocate such an approach.
103. [2004] EWCA 1123.
104. The House of Lords is due to hear an appeal of the Court of Appeal's decision in October 2005.
105. HC Deb., Vol. 428, Col. 151WS, 16 December 2004 (on the day of the judgment).
106. HC Deb., Vol. 430, Col. 307, 26 January 2005.
107. Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the United Kingdom, 4-12 November 2004, 8 June 2005, Comm DH(2005) 6 at para. 28.
108. 2005 Chapter 2. In force from 11 March 2005.
109. Para. 13, Explanatory Notes to Prevention of Terrorism Act 2005.
110. See s.1(4), PTA 2005 for a non-exhaustive list of possible measures.
111. S.3(1)(a), PTA 2005.
112. Report of the Commissioner for Human Rights, supra n. 88 at para. 12.
113. Travis, 'Freed Terror Suspects Face Rigid Regime', Guardian, 12 March 2005.
114. Abu Rideh has been returned to prison following a breach of control orders imposed on him. See Stringer, 'Control Order Terror Suspect Back in Prison', The Scotsman, 28 April 2005.
115. HC Deb., Vol. 431, Col. 153, 22 February 2005.
116. Joint Committee on Human Rights, Prevention of Terrorism Bill: Preliminary Report, Ninth Report of Session 2004-5, 23 February 2005, HL 61, HC 389; and, Joint Committee on Human Rights, Prevention of Terrorism Bill, Tenth Report of Session 2004-5, 4 March 2005, HL 68, HC 334.
117. See, the debates in the House of Commons (HC Deb., Vol. 431, cols 151-170, 22 February 2005
118. HC Deb., Vol. 431, cols 333-448, 23 February 2005
119. HC Deb., Vol. 431, cols 644-790, 28 February 2005
120. HC Deb., Vol. 431, cols 1573-1658, 9 March 2005
121. HC Deb., Vol. 431, cols 1761-1880, 10 March 2005) and those of the House of Lords (HL Deb., Vol. 670, cols 116-220, 1 March 2005
122. HL Deb., Vol. 670, cols 359-383 and 399-464, 3 March 2005
123. HL Deb., Vol. 670, cols 482-556 and 568-615, 7 March 2005
124. HL Deb., Vol. 670, cols 846-920 and 1000-1066).
125. Report of the Commissioner for Human Rights, supra n. 88.