British Prevention of Terrorism Act 2005
I. The British Anti-Terrorism Crime and Security Act 2001
In response to the terrorist attacks of September 11, 2001, the UK Parliament enacted two pieces of anti-terrorism legislation: (1) the Anti-Terrorism, Crime and Security Act 2001 (the ATCSA); and (2) the Human Rights Act 1998 (Designated Derogation) Order 2001 (the Order). Part 4 of the ATCSA, relating to "Immigration and Asylum," granted the UK Secretary of State for the Home Department (the Home Secretary) legal authority to certify and detain indefinitely certain foreign terrorist suspects without charge or access to legal counsel. Pursuant to sections 21 and 23 of the ATCSA, persons certified and detained could leave the UK and go to another country willing to receive them. These provisions also applied to certain non-nationals whom the Home Secretary certified as a risk to national security and suspected of being or supporting international terrorists, but for various reasons the Home Secretary was unable to deport. Section 21(8) of the ATCSA provided that legal challenges to certification were reserved to an independent tribunal known as the Special Immigration Appeals Commission (the SIAC).
II.Legal Challenges to the ATCSA
On December 17 and 18, 2001, eight men were certified by the Home Secretary under section 21 of the ATCSA and detained under section 23; another man was certified on February 5, 2002. All nine detainees were non-UK nationals and were not subject to any criminal charge or proceedings.[1] The men challenged the grounds of their detention in the case A and Others; X and another v. Secretary of State for the Home Department.
The SIAC decided on July 30, 2002, that the Home Secretary's certification violated section 4 of the Human Rights Act 1998, which gives the European Convention of Human Rights and Fundamental Freedoms (the ECHR) domestic effect in the UK. The SIAC ruled that section 23 of the ATCSA was incompatible with Articles 5 and 14 of the ECHR because section 23 permitted the detention of suspected international terrorists in a way that discriminated against them on grounds of nationality. On October 25, 2002, the Court of Appeal of England and Wales (the Court of Appeal) disagreed with the SIAC and allowed the Home Secretary's appeal. On December 16, 2004, the House of Lords ruled 8-1 in favor of quashing the Order, declaring the ATCSA incompatible with Articles 5 and 14 of the ECHR. Given the difficulty and considerable public attention in this case, a panel of nine Law Lords, rather than the usual five, convened.[2]
III. The Decision of the House of Lords
(i) The Lead Opinion
Delivering the lead opinion for the House of Lords, Lord Bingham of Cornhill outlined and explained the relevant national, European and international law pertaining to the case, which is summarized below. Lord Bingham concluded that existing UK immigration law afforded no warrant for the long-term or indefinite detention of a person whom the Home Secretary wished to remove. His Lordship then referred to the relevant exception to the right to liberty contained in Article 5(1)(f) of the ECHR, which provides:
(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of . . . . a person against whom action is being taken with a view to deportation . . . . .
Even though the detainees could not be deported, Member States may still derogate from the right to liberty in certain circumstances. Article 15 of the ECHR allows for derogation "in time of war or other public emergency threatening the life of the nation," but only to the extent "strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."[3]
(ii) ?Public Emergency?
Both the SIAC and the Court of Appeal had ruled that there was a "public emergency threatening the life of the nation". However, the Law Lords differed on the question of an "emergency" and whether derogation was "strictly required" in this instance. Lord Bingham concluded that there was a "public emergency," stating that the SIAC had not misdirected itself on an issue of law; according to European case law, it was open to the British government to decide if there was an emergency; and this decision was more political than legal.
(iii) Proportionality
It was undisputed that the threat to the UK did not derive solely from foreign nationals. Lord Bingham concluded that the Order and section 23 of the ATCSA were, in ECHR terms, disproportionate. He wrote: "the choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem (by allowing non-UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if suspected of having links with Al-Qaeda, may harbour no hostile intention towards the UK." [4]
His Lordship highlighted that allowing a suspected international terrorist to leave the UK for another country in order to pursue criminal activity there was hard to reconcile with a belief in that person's capacity to harm the people and interests of the UK. In addition, His Lordship referred to the fact that the European Commissioner for Human Rights had drawn attention to this paradoxical conclusion, which ran the risk of exporting terrorism.
Given that this case involved derogation from the right to liberty, Lord Bingham noted that the judiciary had the role of minimizing the risk of arbitrariness and ensuring the rule of law. Consequently, the courts were not precluded by any doctrine of deference from scrutinizing the issues raised. Therefore, in ECHR terms, the Order and section 23 of the ATCSA were disproportionate.
(iv) Discrimination
The appellants complained that section 23 of the ATCSA unlawfully discriminated against them on the grounds of nationality or immigration status, which was in breach of Articles 5 and 14 of the ECHR. Article 14 prohibits discrimination on several grounds, including national origin.
Lord Bingham noted that, because the threat from suspected international terrorists did not depend on nationality or immigration status, the effect of section 23 was to permit non-nationals to be deprived of their liberty. Furthermore, His Lordship noted that Article 14 of the ECHR had not been the subject of the UK's derogation, and thus Article 14 would remain in force. He concluded that the decision to detain one group, defined by nationality or immigration status, violated Article 14 of the ECHR, as well as Article 26 of the International Covenant on Civil and Political Rights, and was inconsistent with the UK's other obligations under international law within the meaning of Article 15 of the ECHR.
(v) The Dissenting Opinion
Seven of the other eight Law Lords concurred in the result. Lord Walker delivered the only dissenting opinion. He differed from the majority in his assessment of whether the derogating measures were disproportionate, irrational and discriminatory. His Lordship highlighted that the ATCSA contained several important safeguards against oppression and the Home Secretary's powers were subject to judicial review by the SIAC. Furthermore, the 2001 legislation was only temporary in nature; in particular, the ATCSA provided for detailed scrutiny of the powers in sections 21 to 23. Finally, he noted that, "in a period of nearly three years no more than seventeen individuals had been certified under section 21 [of the ATCSA]," and this was directly relevant to the issue of proportionality.
IV. Prevention of Terrorism Act 2005
The detention powers under section 21-23 of the ATCSA were due to lapse on November 10, 2006. In response to the judgment of the House of Lords, the government introduced the Prevention of Terrorism Bill (the Bill). The Bill was designed to put in place a new system of controls (Control Orders) applicable to all suspected terrorists irrespective of whether they are British or foreign nationals and, in relation to most Control Orders, irrespective of the type of terrorism in which they are involved.
After lengthy parliamentary debate, the Bill was finally approved by both the House of Commons and the House of Lords, received the Royal Assent on March 11, 2005, and thereafter became The Prevention of Terrorism Act 2005 (the PTA). [5]
Article 1(1) of the PTA empowers the Home Secretary to impose a range of Control Orders against an individual if the Home Secretary has "reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity" and he considers that it is "necessary" to make an order imposing obligations on the individual to protect the public. Article 1(2) provides that Control Orders can be tailored to meet the threat that each individual poses. In their most extreme form, Control Orders could require an individual to remain in a particular place at all times, or involve some similar measure that amounts to a deprivation of liberty and would require derogation under Article 15 of the ECHR.
Article 2(1) states that, in order to make a derogating Control Order, three factors must apply: (1) there must be a designated "public emergency" derogation in force from Article 5 of the ECHR; (2) the obligation imposed on the individual imposed must be that in the derogation; and (3) the Home Secretary must be satisfied, on the balance of probabilities, that the person is, or has been, involved in terrorism and the imposition of that obligation is "strictly required" for the purposes of protecting the public from the risks associated with that "public emergency."
The remainder of Article 2 provides for two stages of court review for derogating Control Orders. First, when a Control Order is made, within seven days it is referred to the High Court for a preliminary hearing in order to assess whether the Home Secretary had reasonable prima facie grounds for making the Control Order. Both sides will be represented; there will be open and closed sessions; and the interests of the subject of the order will be represented in closed session. Second, if the Court is satisfied, the case is automatically referred for a full hearing, again involving open and closed sessions. At either stage of review, the High Court has the authority to strike down the Home Secretary's Control Order or give directions for modification.
Article 4 provides that a derogating Control Order will come into force immediately but, in order to comply with the Human Rights Act of 1998, the conditions of the derogation would need to be confirmed by a vote in each House of Parliament within 40 days of the Control Order being made in order for it to continue in force. Article 4 also provides that a derogating Control Order has effect for a period of six months. In addition, the court, on an application by the Secretary of State, may renew a derogating Control Order (with or without modifications) for a period of six months. The power of the court to renew a derogating Control Order is exercisable on as many occasions as the court thinks fit.
V. Conclusion
Under the ATCSA, the Home Secretary's powers were subject to judicial review by the SIAC, which was an independent court with a wide jurisdiction to hear appeals. During the drafting stages of the PTA, parliamentary debate focused on the degree of judicial oversight on the Home Secretary's power to make derogating Control Orders. Some Members of Parliament vigorously argued that these responsibilities should have been left entirely to the judiciary; others stressed the executive's responsibility to protect the nation's security. In the end, the PTA has been worded to provide that, where a derogating Control Order is speedily made by the executive, the courts are required, as soon as practicable, to decide on the merits whether the Control Order is justified.
Now that that British government has drafted its latest anti-terrorism legislation to comply with the Law Lords' criticisms of proportionality and discrimination, the PTA is unlikely to face further legal challenges pursuant to the ECHR. However, public attention in the UK will likely focus on whether the Home Secretary makes derogating Control Orders and how these will be scrutinized by the High Court.
About the author
Oonagh Sands, and ASIL member, is a trainee solicitor at the law firm SJ Berwin, London. She holds an LL.M. from Georgetown University Law Center, Washington D.C., a Postgraduate Diploma in Law from King's College, London, and an LL.B. from the Queen's University of Belfast. The opinions expressed in this Insight are hers alone.
Footnotes
[1] Two of the December detainees exercised their right to leave the UK and went to Morocco and France, respectively. In July 2002, another detainee was transferred to a high security psychiatric hospital in Belmarsh, England, on the grounds of mental illness.
[2] Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffman, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Carswell.
[3] The ATCSA did not contain any provisions that derogate from Article 14 of the ECHR, which prohibits discrimination on the grounds of nationality; rather, the ATCSA only derogated from Article 5, which guarantees the right to liberty.
[4]A and others; X and another v. Secretary of State for the Home Department, Session 2004-05, [2004] UKHL 56, at paragraph 43.
[5] The Prevention of Terrorism Act, 2005, c.2 (Eng.).