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Commission’s Article 29 Data Protection Working Party declined to adopt
or approve the text on the ground that the transfer of PNR to the US was ‘in
any case illegal’ and that ‘nothing should be done to blur that fact’.45 The
approval of the European Parliament not being necessary under current EU
procedures, the EU–US agreement on PNR was eventually signed on 28 May
2004.46 Yet on 25 June 2004, the Parliament requested the ECJ to annul the
controversial agreement because of a violation of fundamental EU data
protection rights and procedural requirements. This case is still pending.
In response to strong US interest in a bilateral extradition treaty, the JHA
Council adopted on 26 April 2002 a negotiating mandate for an extradition and
mutual legal assistance agreement with the US. The negotiations started in June
2002 but proved difficult because of the obvious problem of the death penalty in
the US, US demands to be treated in a similar way as EU Member States, and the
seizure of property. A positive impetus was provided by a meeting of the US
Attorney General with EU JHA ministers in Copenhagen on 13/14 September
2002 at which it was agreed to arrange for regular meetings of EU and US law
enforcement experts on threat assessments and profiling of terrorism, for the
sharing of information on action plan implementation and for cooperating on
the setting up of joint investigative teams.47
On the issue of extradition and death penalty, a compromise was finally
reached in February 2003 according to which EU Member States may extra-
dite to the US on the condition that the death penalty shall not be imposed on
the person sought, or if imposed, shall not be carried out. Should the US not
be in a position, in a given case, to accept these conditions, EU Member States
can refuse the extradition request. The EU, concerned about US practices and
military justice in the Guantanamo Bay camp, insisted on an explicit refer-
ence to the right to a fair trial before an independent tribunal. Agreement was
also reached on the possibility of the EU and the US setting up ‘joint
investigative teams’. This will enable US officials to participate in investiga-
tions in the EU Member States (and vice versa), although the exercise of law
enforcement powers will be reserved to authorities of the country in which
the investigation takes place. The compromises reached were codified in two
agreements – one on extradition and one on mutual legal assistance – both of
which were signed in Washington on 25 June 2003.48
There can also be little doubt that the extraordinarily rapid progress made
by the Union on key aspects of its internal anti-terrorism agenda, such as the

45
Quoted from Commission Communication, ‘Communication on Transfer of Air
Passenger Name Record (PNR) Data’, COM(2003) 826, 16.12.2003, 7.
46
OJL 183 of 20.05.2004, 84–5. 47 Council document no. 13909/1/02 REV 1.
48
Text of the agreements: Council document no. 9153/03.
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 443

European Arrest Warrant, was in part motivated by an intention to prove to
the US that the EU could be a credible partner. Justice and home affairs issues
have clearly acquired a new salience in EU–US relations, widening the scope
of trans-Atlantic security partnership, but also creating friction over data
protection and extradition.

III. EU responses to the Madrid attacks of 11 March 2004
While the terrorist attacks in Madrid on 11 March 2004 sent shock waves
across Europe, they were not totally unexpected. Especially after the partici-
pation of the United Kingdom, Spain and several other European countries in
the US-led intervention in Iraq, there had been repeated warnings about a
heightened risk of large-scale attacks in Europe. Europe had come more than
ever before into the potential firing line of Muslim extremists.
The attacks highlighted the persistent deficiencies in of the implement-
ation of the September 2001 EU Action Plan to Combat Terrorism. The much
vaunted European Arrest Warrant, for instance, had by mid-March only been
fully implemented by ten of the (then) fifteen Member States. Similarly, at the
time of the attacks three Member States had still not reported on implemen-
tation of the crucial Framework Decision on combating terrorism of June
2002, which provides for crucial criminal law definitions and penalty levels.
Europol, which had been vested with an enhanced analysis function and a
special terrorism task force following the 2001 Action Plan, had been experi-
encing considerable difficulties because several Member States, fearing
potential leaks of sensitive information, had only provided it with limited
and highly-filtered intelligence. Six Member States had by the time of the
attacks not yet notified transposition of the June 2002 Framework Decision
on joint investigation teams, two had not yet established the national contacts
points provided for by the December 2002 Decision on specific judicial
and police cooperation measures to combat terrorism, and no less than
eleven had still not formally ratified the 2000 Convention on Mutual
Assistance in Criminal Matters. These and a range of other deficiencies were
clearly brought out in a European Commission memorandum to the Council
on 18 March 200449 which was followed by another memorandum50 propos-
ing action on implementation and several new measures. These were discussed
at a special meeting of the EU’s Justice and Home Affairs Council on 19 March.
The ministers agreed on the need to tackle, in particular, the deficiencies of
cooperation between the relevant security services, and the existing implement-
ation problems, with a range of concrete action points to be formally adopted
by the European Council meeting scheduled for the week after.

49
European Commission Memo/04/63, 18 March 2004.
50
European Commission Memo/04/66, 18 March 2004.
¨
JORG MONAR
444

The meeting on 19 March 2004 was not without tension. Some govern-
ments felt misled by the Spanish Aznar government who, in order not to lose
the Spanish general elections, had tried, almost to the last minute, to link the
Madrid attacks to ETA in spite of mounting evidence of al Qaeda involve-
ment. German Minister, Otto Schily, was particularly outspoken in his criti-
cisms. Several Member States felt that the involvement of Spain and other
partners in the war in Iraq had weakened international action against terror-
ism and increased rather than decreased terrorist risks. There were also
disagreements over the preference expressed by Austria and the Benelux
countries for the establishment of a new anti-terrorism agency, France and
Germany preferring instead a more informal information network.
On 22 March the General Affairs Council put the finishing touches to a
draft ‘Declaration on Combating Terrorism’, largely based on JHA Council
deliberations on 19 March. This was then, with very few changes, formally
adopted by the Heads of State and Government at the end of a two-hour
session during the European Council meeting in Brussels on 25 March 2004.
The Declaration51 is explicitly linked to the previous (September 2001) Action
Plan. It provided for a substantial package of measures which were laid out in
detail in an updated version of the EU Action Plan on Combating Terrorism
which was adopted by the Council on 15 June 2004.52 Four new elements
emerge from these texts and their implementation.

A. Solidarity
The European Council not only expressed its full solidarity with the Spanish
people but also, in a ‘Declaration on Solidarity’, took the unusual step of
committing itself to the application of the ‘solidarity clause’ of Article I-42 of
the not yet ratified draft EU Treaty establishing a Constitution for Europe,
whose final text was only approved in June 2004.53 This clause provides for
the full mobilization of Member States’ resources, including the military, to
prevent terrorist threats to any of them, and to assist affected Member States
upon their request. While this clearly marked a higher degree of commitment
to solidarity than before, it has to be noted that the Declaration left it to each
Member State to decide how to comply with this commitment and does not
mention, for instance, the use of the EU budget.

B. Improved implementation
The European Council Declaration had set June 2004 as the deadline for full
implementation of six key legislative acts of relevance to the fight against

51
European Council: Declaration on Combating Terrorism, 25 March 2004.
52
Council document no. 10586/04. 53 See below section IV. C.
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 445

terrorism, including the Framework Decisions on the European Arrest
Warrant. The same deadline was set for completing negotiations on a number
of other instruments, such as the Framework Decisions on attacks against
information systems, on the confiscation of crime-related proceeds, and on
the mutual recognition of confiscation orders. The German government,
¨
struggling with difficulties of German Lander competencies in the internal
security domain, would have preferred an ‘as soon as possible’ formula to
these binding deadlines, but failed to convince its partners.
It was decided to speed up the designation of national correspondents for
Eurojust, and the putting into place of the new Europol Information
System, to ensure that Member States pass on all criminal intelligence on
terrorism to Europol and to reactivate Europol’s Counter-Terrorist Task
force which had been increasingly marginalized as a result of limited input
by the national authorities. Europol and Eurojust representatives should
also be associated with the work of Joint Investigation Teams as soon as
possible; and a Eurojust/Europol cooperation agreement was signed on
9 June 2004.

C. New anti-terrorism measures
The Declaration instructed Ministers to start work on a number of new
legislative measures. These include rules on the retention of communications
traffic data by service providers (such as mobile phone companies), the
creation of European databases on convictions (European Criminal
Record) and disqualifications as well as forensic materials, and rules on the
facilitation of cross-border hot pursuit – a difficult issue because of the
territoriality of law enforcement powers. The Commission was invited to
come up with proposals on the protection of witnesses in terrorist cases, the
exchange of personal information (DNA, fingerprints and visa), the use of
passenger data for border and aviation security, and for an integrated system
for the exchange of information on stolen and lost passports (to be in place by
the end of 2005). The Council was also instructed to adopt Commission
proposals on the incorporation of biometric features into passports and visas
by the end of 2004. On 29 March the Commission came up with a first set of
concrete proposals. These included the creation of a system of national bank
account registries allowing for the identification of the true owners of
accounts, and streamlining of national information collection on terrorist
offences through specialized services, and wide-ranging obligations for
Member States to ensure the passing on of this information to Europol and
Eurojust.54


54
COM(2004) 221.
¨
JORG MONAR
446

In order to arrive at a new quality for the sharing of intelligence, Secretary-
General/High Representative Solana was asked to integrate within the
Council Secretariat an intelligence capacity on all aspects of terrorist threats
in Europe. This came as a compromise between Member States who had
advocated the creation of a new permanent intelligence agency on terror-
ism, and those who had instead favoured the enhanced use of existing
informal networks. The centralization of intelligence tasks poses the pro-
blem of a potential overlap with Europol’s task, and to some extent pena-
lizes Europol for shortcomings in analysis capabilities which were largely
due to the unwillingness of some Member States to provide it with relevant
information. The Declaration made it clear, however, that increased use
should also be made of information provided by intelligence services –
which had so far been made available only to a limited extent – and that
cooperation between Europol and intelligence services should be enhanced
to that effect.
The Declaration promised more support to vulnerable third-countries
on building up their counter-terrorism capabilities. It also announced that
the Union ‘will analyse and evaluate the commitment of countries on an
ongoing basis’, which is declared to be an ‘influencing factor’ in EU relations
with them. This is a rather strong hint at an enhanced ‘carrot and stick’
approach to countries seen as being not fully cooperative in the fight against
terrorism.


D. Appointment of a Counter-terrorism Co-ordinator
The most ‘visible’ innovation brought by the new anti-terrorism package
was the appointment of a ‘Counter-terrorism Co-ordinator’. The appoint-
ment of the former Dutch President of the Liberal Group in the European
Parliament (1994–1998), Junior Minister in the Dutch Interior Ministry
(1998–2002) and Dutch representative in the European Convention, Gijs de
Vries, came as a surprise to some observers as he had no specific credentials
in the anti-terrorism field. Yet de Vries brought with him consider-
able experience within the EU system and a reputation as a highly skilled
negotiator who is considered unlikely to pose difficulties to Secretary-
General Solana under whose authority he will have to work. To what extent
the new Co-ordinator will be able to make a difference remains to be seen.
The March 2004 Declaration did not confer any specific powers on Mr de Vries,
and national law enforcement and intelligence agencies have so far proved
extremely reluctant to subject themselves to common guidelines and system-
atic cooperation. The mandate given to the new Coordinator only rather
vaguely provides for him ‘to maintain an overview of all the instruments
at the Union’s disposal’, and to regularly report back to the Council on
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 447

the effective follow-up of Council decisions, which is an implicit admission
that implementation is seen as a key problem.

E. Assessment
Overall, the March 2004 anti-terrorism package clearly addressed some of
the most urgent problems in the implementation of the 2001 Action Plan.
The new deadlines for legislative action and enhanced information sharing
can increase the Union’s role in the fight against terrorism. At the same time,
the Member States have not transferred any new real powers to the EU
institutions and the role of Europol could actually have been weakened as a
result of the stronger coordinating role of the Council Secretariat. The new
Counter-terrorism Co-ordinator will have to struggle to develop and define
his role.
The proposed creation of a range of new data-collection and analysis
instruments almost immediately caused considerable concern, not only
amongst civil liberties groups, but also in some parliaments. The Select
Committee on European Scrutiny of the British House of Commons, for
instance, questioned the proportionality of the compulsory registration of
bank accounts envisaged in the Commission proposals and expressed doubts
about the compatibility of the proposed Council Decision on the exchange of
information with the European Convention on Human Rights.55 The House
of Lords Select Committee on the European Union made it clear that it was
unconvinced of the need for a European Criminal Record, expressing con-
cerns about its impact on privacy and the protection of personal data and
stating that it could violate the principle of the presumption of innocence if
the data stored extended beyond convictions.56
Effective implementation also remains a crucial problem. A Commission
report on the implementation of the Framework Decision on combating
terrorism of 8 June 2004 indicated that only eight of the fifteen ‘old’
Member States had by then specifically criminalized terrorist offences as a
separate category of crimes, which is one of the crucial requirements of the
Framework Decision.57 By mid-June 2004, only ten Member States had
reported completion of implementation measures of the Framework
Decisions on joint investigation teams and on money laundering.58

55
House of Commons, European Scrutiny Committee, 21st Report Session 2003–2004,
‘Exchange of Information and Cooperation Regarding Terrorist Offences’, 7 HO
(25536), 17 June 2004.
56
House of Lords, European Union Committee: 23rd Report Session 2003–2004, Judicial
Cooperation in the EU: the role of Eurojust, HL Paper 138, 21 July 2004, para. 102.
57
European Commission: Report based on Article 11 of the Council Framework Decision of
13 June 2002 on combating terrorism, COM(2004) 409, 08.08.2004, 6.
58
Council document no. 10586/04, 26–27.
¨
JORG MONAR
448

IV. Conclusions
A. The emergence of the EU as actor in its own right
According to a 2003 Eurobarometer opinion poll, 80 per cent of EU citizens
count terrorism amongst their primary fears and 90 per cent of them think
that the fight against terrorism should be one of the priorities of the Union.59
Substantial expectations exist, and the question is whether the EU is capable
of meeting them. The EU has taken important steps towards a ‘comprehen-
sive’ actor capability in the security domain, which also enables it to play a
substantial role in the fight against international terrorism. This corresponds
fully with the treaty objective of Article 29 TEU, according to which the
Union should provide citizens with a ‘high level of safety’. While most of the
expertise and operational means remain obviously with the Member States,
the EU has the legal instruments, structures and political will to play, at least,
a significant complementary role. The EU responses to 9/11 – and more
recently the decisions of March 2004 and the revised Action Plan of June
2004 in response to the Madrid attacks – amply demonstrates this capacity.
Taken together the legislative and the operational measures are quite
substantial. The EU has not only used all available instruments and struc-
tures, but did so in some cases with extraordinary speed. Before 9/11 most
observers had expected the Union to need several more years to agree on a
common definition of terrorism and the introduction of a European Arrest
Warrant. In the event it proved possible within three months. The new
Amsterdam Treaty legal instruments – especially the Framework Decisions –
clearly demonstrated that they were far more suitable for effective legislative
action than the former Maastricht legal instruments, although national par-
liamentary scrutiny reserves took their toll in the delays for formal adoption.
The Commission was able to play a substantial role in the process, partly
because of having some of the necessary legislative proposals ready ‘in the
drawer’. Both Europol and Eurojust were, within a few months, given
enhanced functions, and a lot of effort was put into ensuring adequate
cooperation and synergy between the different EU structures and national
authorities. The introduction of intelligence services into EU cooperation
and the creation of the anti-terrorist team within Europol also indicated
flexibility in response to the terrorist threat. These and several other changes
have substantially increased common analysis and planning capacity.
Externally, both CFSP and economic instruments have been effectively
used to shore up the international coalition against terrorism in an unprece-
dented and sustained effort of ‘cross-pillar’ action. The US were not only
offered international support through these instruments but also a new

59
Standard Eurobarometer 59, July 2003, 9 and 58–9.
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 449

quality of cooperation in the justice and home affairs domain which went as
far as opening EU structures to the participation of US representatives and
the negotiation of formal agreements.
Through the adoption of the September 2001 Action Plan which has been
reaffirmed and revised after the Madrid attacks, the EU has arrived at some-
thing which it did not have before: a common strategy based on a common
approach on key issues.

B. Capability and legitimacy problems
The EU’s reaction to 9/11 has brought out a number of persistent capability
weaknesses. The most obvious is that all operational capabilities remain
exclusively with the Member States. So far no EU institution is vested with
any coercive or judicial powers. In essence the EU’s role remains limited to
information, coordination and framework legislation.
Then there is the unanimity requirement in the Council. The speed of the
agreement on the European Arrest Warrant should not make one overlook
the fact that the whole process very nearly failed because of Italian objections
which had nothing to do with the fight against terrorism. Yet even without
the Italian ‘intermezzo’, the negotiations in the Council bodies often enough
came to a complete standstill over objections by individual delegations
staunchly defending what they regarded as unchangeable elements of their
legal systems. The unanimity requirement encourages inflexibility of national
positions. The unanimity principle also prevented the complete abolition of
the double criminality principle under the European Arrest Warrant and,
significantly, delayed the adoption of other legal instruments such as the
Framework Decisions on attacks against information systems, on the con-
fiscation of crime-related proceeds, and on the mutual recognition of con-
fiscation orders.
The EU’s ‘pillar’ division and the absence of a cross-cutting legal base for
action against terrorism is an additional ‘systemic’ weakness. It necessitated
complex combinations of different legal bases and the involvement of differ-
ent strings of decision-making.
While decision-making may have been relatively fast by EU standards, the
same cannot be said about implementation. The fact that key instruments
such as the Framework Decisions on combating terrorism and on the
European Arrest Warrant had not been fully transposed by several Member
States at the time of the 11 March 2004 terrorist attacks highlights a signifi-
cant discrepancy between decision-making and implementation. This endan-
gers both the effectiveness and the credibility of EU action in this domain.
Europol had to struggle to get all necessary data from the Member States
for a comprehensive assessment of the terrorist threat within the EU, high-
lighting the problem of a central European police office without real powers,
¨
JORG MONAR
450

which in many respects continues to be dependent on the goodwill of
national police forces, although its remit has been increasingly expanded.
The PCTF has had difficulties in finding its own role in the process, ending up
with making recommendations but without producing any major results in
the operational sphere. The Union has been creating more and more struc-
tures, the most recent addition being the EU Counter-Terrorism Co-ordinator,
without ensuring an effective division of tasks and coordination between
them.
The very limited role of the European Parliament in the adoption of the
vast array of EU anti-terrorism measures, which is mainly due to its merely
consultative powers in this domain under current EC/EU treaty provisions, is
clearly one of the negative points on the EU’s post-September 11 balance
sheet. This is all the more true as national parliaments are more often than
not faced with the fait accompli of negotiated EU Council compromises on
anti-terrorism measures which national ministers are extremely reluctant to
get back to because of concerns of their own parliaments. Adequate parlia-
mentary control should be regarded as all the more important as some of the
EU measures have given rise to serious concerns about negative effects on
civil liberties in the EU.60
The EU cooperation framework has clearly contributed to the strengthen-
ing of the role of the executive branches in the fight against terrorism.
National governments can actually use the European level for reducing not
only parliamentary scrutiny, but also – as there is no such thing as a
‘European public opinion’ or a ‘European press’ – for escaping potentially
difficult debates in the media on some of the measures adopted in the name of
the fight against terrorism. Once a measure has been agreed on at EU level,
they can use the claimed legitimacy and importance of a common EU
approach to push through certain measures at the national level, which
would have been more difficult to pass if they had been national measures
only. A good example is the Draft EU Framework Decision on the retention of
data processed and stored in relation with publicly available electronic com-
munication services, proposed on 28 April 2004 by France, Ireland, Sweden
and the UK in line with the Anti-terrorism Action Plan.61 It extends the
period of storage of telecommunication data from a minimum of twelve to a
maximum of thirty-six months, to location as well as traffic data and for the
purpose not only of investigation and prosecution but also of prevention of
criminal acts. This goes partially beyond existing legislation in the proposing
countries, and definitely beyond legislation in other EU countries, showing

60
For particularly sharp criticisms of EU action, see Tony Bunyan, ‘The War on Freedom
and Democracy’, Statewatch Analysis no. 13, London, September 2002 (http://www.state
watch.org/).
61
Council document no. 8958/04.
ANTI-TERRORISM LAW AND POLICY: THE CASE OF THE EU 451

clearly the risk of the EU level being used by national governments to push
through more invasive legislation at the national level.

C. Future prospects
Over the next few years, the EU will not only have to implement the revised
Action Plan of June 2004 but also – at least potentially – the provisions of a
new Treaty establishing a ‘Constitution’ for Europe. The draft of this Treaty
was adopted by an EU Inter-governmental Conference in June 2004 and now
needs to be ratified by the twenty-five Member States.62 It introduces a
number of reforms which are likely to enhance the Union’s capabilities in
the fight against terrorism. The cumbersome pillar structure will be abol-
ished, qualified majority voting will become possible on a range of criminal
justice cooperation issues, including minimum rules regarding the definition
of criminal offences and sanctions for terrorism and other serious crimes, and
new EU action possibilities are provided for as regards the adoption of
common minimum rules in the domain of criminal law procedures and
crime prevention as well as the conditions and limitations under which
national police authorities may operate in the territory of another Member
State.63 Article III-274 even provides for the possibility of establishing a
European Public Prosecutor’s Office, emanating from Eurojust, which shall
be responsible for investigating, prosecuting and bringing to judgment the
perpetrators of serious crimes, although the establishment of such an Office
remains subject to unanimity, and not a few political controversies.
Democratic accountability will be strengthened by the introduction of
co-decision powers of the European Parliament for all legislative measures.
The protection of fundamental rights in the EU will benefit from the full
incorporation of the EU Charter of Fundamental Rights, which includes
wide-ranging provisions on judicial rights and the protection of personal
data, and the removal of most of the remaining restrictions on the role of the
ECJ. Also new is the introduction of the ‘solidarity clause’ for terrorist threats,
which includes the mobilization of all instruments at the Union’s disposal to
prevent terrorist threats, to protect democratic institutions and the civilian
population and to assist a Member State in the event of an attack.64
The new Treaty has its flaws. The formally abolished ‘pillars’ continue to
exist in a sort of shadowy existence because decision-making procedures still
vary between former first and third pillar areas. Despite the obvious difficul-
ties, Europol has neither been redefined nor strengthened. Another example
on the negative side is the so-called ‘emergency brake’ introduced by Articles
III-270(3) and III-271(3) which allows a Member State to ask for a

62
Text: EU Council document no. CIG 86/04.
63 64
Articles III-271 to III-272 and III-277 s. 3 and III-329. Article I-42.
¨
JORG MONAR
452

suspension of the legislative process in substantive or procedural criminal law
if it considers that the proposed legislative measure affects fundamental
aspects of its criminal justice system, thereby reintroducing a national veto
through the backdoor. While these and other weaknesses should not be
underestimated, a successful ratification of the new ‘Constitution’ would
certainly enhance the Union’s capability to respond to the challenges of
international terrorism. This is something which, having regard to the
Eurobarometer opinion polls, European citizens clearly seem to expect,
although effective EU action in the fight against terrorism will ultimately
always depend on the common political will of the Member States to fully
realize its potential.
PART FIVE

Anti-Terrorism Law and Policy in the West
21

Legislative over-breadth, democratic failure and the
judicial response: fundamental rights and the UK’s
anti-terrorist legal policy
HELEN FENWICK AND GAVIN PHILLIPSON


I. Introduction: policy options and loci of opposition
Three standard governmental policy responses to terrorism have been iden-
tified:1 a military one, treating the fight against terrorism as a form of warfare;
a police-based one, treating it simply as a form of criminal activity, to be
detected and then defeated using (perhaps some modified version of) the
criminal justice system; and a political one, viewing it as a form of armed
rebellion to be resolved through negotiation and the political process. The
UK Government’s response to political violence in Northern Ireland, for
example, was to use a mixture of police-based and political strategies. In
this light, the UK Government’s response to the al Qaeda threat (leaving aside
its military aspect, such as the war in Afghanistan) is police-based: it has
involved a very significant ratcheting up of the state’s coercive powers in
terms of surveillance, data-sharing and detention. The main change in UK
anti-terrorist policy in recent years has been described as being ‘the shift to
intelligence-based and proactive methods [with] the primary aim of prevent-
ing terrorist attacks, rather than responding to events and attempting to solve
crimes after they occur’.2 The use of preventive detention, rather than


We are grateful to Kent Roach, George Williams and William C. Banks for their very useful
comments on earlier drafts of this chapter. [Editorial note: this chapter was written before the
ruling of the House of Lords in A. v. Secretary of State for the Home Department [2004] UKHL
56, and should be read in light of that ruling. See ‘Postscript’, Chapter 28, in this volume]
1
Noel Whitty, Therese Murphy and Stephen Livingstone, Civil Liberties Law – The Human
Rights Act Era (London, Butterworths, 2001), at 128–9.
2
Ibid., at 143. As Clive Walker, a leading commentator on UK anti-terrorist law and policy,
puts it, ‘The trend [of UK anti-terrorist policy] . . . represents a part of a fundamental
switch away from reactive policing of incidents to proactive policing and management of
risk’, in ‘Terrorism and Criminal Justice: Past, Present and Future’ [2004] Crim L. R. May,
311 at 314. Walker further cites R. V. Ericson and K. D. Haggerty, Policing the Risk Society
(Clarendon Press, Oxford, 1997). Clearly, preventive measures are the only possible
strategy in relation to the threat of suicide bombers: those who plan to die in carrying
out attacks self-evidently cannot be ‘punished’ after the event and are unlikely to be
deterred by the threat of conviction and imprisonment; however, imprisonment of those

455
HELEN FENWICK AND GAVIN PHILLIPSON
456

charging suspects with offences actually committed, is the logical conclusion
of this approach: persons may be imprisoned, not because of what they have
actually done, but for fear of what they might do, based upon suspicion of
their involvement with al Qaeda generally.
It should be pointed out that the experience of the use of such ‘special
powers’ in relation to Northern Ireland is not a happy one: there is substantial
evidence of the use of powers in an oppressive manner, of their use against
persons later turning out to be innocent,3 and of more oppressive practices
being carried on in secret.4 A further lesson from Northern Ireland is that the
use of draconian security methods of fighting terrorism diminished when they
were seen as counter-productive, because they were obstructing movement
towards a political solution to the terrorist problem – the Northern Ireland
peace-process. For example, it appears that governmental policy towards the
use of lethal force against IRA members preparing to carry out violent acts
changed, not because of a finding in McCann v. UK 5 that such use had violated
the suspects’ right to life under Article 2 of the European Convention on
Human Rights (ECHR), but because a political calculation was made that the
creation of ‘republican martyrs’ would hinder the British Government’s
attempts to reach a political settlement with the IRA.6 Given that there appears
to be absolutely no possibility of political negotiation with al Qaeda and its
associates,7 this obvious ‘political route’ towards less repressive security mea-
sures against terrorist suspects seems to be unequivocally closed off.
Nevertheless, there are good reasons for reconsidering the current measure of
executive detention discussed below: there is now substantial evidence that the
use of this measure exclusively against Muslim men has created substantial
resentment and alienation in the Muslim community and a loss of faith in the
British justice system and Western democratic values generally.8 This in turn
may both increase support for extremist Islamic groups within the wider
Muslim community and hamper intelligence gathering by the security services
within that community. Unfortunately, however, the Government at present
shows little or no appreciation of these counter-productive effects. Thus there

engaged in planning and preparation for such attacks (e.g. on conviction for proscription
offences or for conspiracy (below text to notes 23, 24) would assist in preventing them.
3
80% of those arrested under the PTA were released without charge.
4
E.g. the use of the so-called ‘five techniques’ of intensive interrogation used in Northern
Ireland against terrorist suspects in the 1970s, eventually found to breach Art. 3 European
Convention of Human Rights in Ireland v. UK (1978) 2 EHRR.
5
(1995) 21 EHRR 97.
6
T. Harnden, Bandit country: the IRA and South Armagh (1999), 303.
7
Note however, that M. Ignatieff in a new book, Lesser Evils (Toronto, Penguin, 2004)
suggests the possibility of negotiating with groups broadly sympathetic to al Qaeda but
with less extreme agendas and methods.
8
See the Liberty paper on the ATCSA: Reconciling Security and Liberty in an Open Society:
Liberty Response (2004), Ch. 2, esp. pp. 9–10.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 457

appear to be only two means by which amelioration, in human rights terms, of
the current statutory powers could at present come about: political pressure
from other sources and the use of legal challenge.
Political pressure from civil libertarians in Parliament and the media has
not to date had any significant effect, mainly because of strong support in
much of the press for ‘tough action’ against terrorism, and cross-party back-
ing for it. Indeed, Parliament’s role in relation to the Anti-terrorism, Crime
and Security Act 2001 (ATCSA) – the main legislative response of the UK
Government to September 11 – reveals not only an absence of any effective
democratic opposition to the draconian powers it granted, in particular those
in Part 4 giving powers to detain non-British nationals without trial, but
also a lack of willingness to subject them to the kind of sustained, careful
scrutiny that might be expected of a country with (purportedly) a strong
allegiance to the rule of law and basic human rights values. The ATCSA was
passed with strong support from the main opposition party in the House of
Commons9 and the overwhelming backing of MPs generally. Indeed, the 124-
page long ATCS Bill, which partially abrogated habeas corpus and made the
UK the only country in Europe to derogate from Article 5 of the European
Convention on Human Rights,10 was passed with just sixteen hours of debate;
of the 135 clauses of the Bill, precisely 86 were debated in the Commons.11


9
The Conservative Party; there was opposition from the much smaller Liberal Democrat
party.
10
Article 5 ECHR, as relevant, provides:
1. Everyone has the right to liberty and security of a person. No one shall be deprived of
his liberty save in the following cases and in accordance with a procedure prescribed
by law:
a. the lawful detention of a person after conviction by a competent court;
b. the lawful arrest or detention of a person for non-compliance with the lawful order
of a court or in order to secure the fulfilment of any obligation prescribed by law;
c. the lawful arrest or detention of a person effected for the purpose of bringing him
before the competent legal authority on reasonable suspicion of having committed
an offence or when it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so . . .
d. the lawful arrest or detention of a person to prevent his effecting an unauthorised
entry into the country or of a person against whom action is being taken with a view
to deportation or extradition . . .
2. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of
this Article shall be brought promptly before a judge or other officer authorised by law
to exercise judicial power and shall be entitled to trial within a reasonable time or to
release pending trial . . .
3. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not lawful.
11
See H. L. Deb. Vol. 629 col. 1533, 13 Dec. 2001 (Baroness Williams).
HELEN FENWICK AND GAVIN PHILLIPSON
458

Despite powerful reports from the Joint Committee on Human Rights,12
warning that the Bill as drafted almost certainly violated the ECHR, the
Commons imposed not a single amendment against the Government,13 and
then, as and when instructed to by Government Whips, obediently and
repeatedly overturned amendments passed in the House of Lords14 intended
to safeguard human rights and keep the proposed new powers within reason-
able, internationally endorsed limits.
Thus the route of legal challenge has always appeared to be the only one
likely to result in significant amelioration of the authoritarian aspects of the
anti-terrorist legislation.15 However, it should be noted that under the UK’s
Human Rights Act 1998 (HRA), due to the doctrine of parliamentary sover-
eignty, the courts have no power to strike down statutory provisions that
violate fundamental rights guaranteed under the ECHR. The courts are
limited instead to seeking to interpret legislation compatibly with such rights
‘if possible’,16 and if they cannot do so, making a formal declaration of
incompatibility between the provision in question and the ECHR right17
that has no effect upon the legal validity or enforceability of the incompatible
provision.18
This chapter focuses on a number of central characteristics of the UK’s
current counter-terrorist response19 and on the future discernible trends. The


12
Second Report, H. C. 37, H. L. 372 (2001–02); Fifth Report, H. C. 51, H. L. 420 (2001–02).
13
The Government did bring forward some amendments in the Commons, in response to
reports by various Select Committees, in particular the Joint Committee: see its Fifth
Report (ibid.), at 8.
14
The second, unelected, chamber of the UK Parliament did impose some improvements on
the Bill: the deletion of the proposed creation of an offence of incitement to religious
hatred; the insertion of ‘sunset’ clauses against Government resistance, whereby the more
draconian aspects of the legislation would automatically lapse after a specified period
(crucially re ss. 21–23, the powers to detain without trial); and the restriction of the
provisions re retention of communications data to crime that ‘may relate directly or
indirectly to national security’ (s. 102(3)(b)), not any criminal offences.
15
See further on this, Ramraj, Chapter 6, in this volume.
16
Section 3(1) HRA: ‘So far as it is possible to do so, primary legislation and subordinate
legislation must be read and given effect in a way which is compatible with the Convention
rights.’
17
Section 4(2) HRA states: ‘If the court is satisfied that [a provision of primary legislation] is
incompatible with a Convention right, it may make a declaration of that incompatibility’.
18
Sections 3(2) and 4(6) HRA.
19
We do not consider the European Council Framework Decision on Combating Terrorism,
(COM (2001) 521; Framework Decision [2002] O JL 164/3). The UK Government con-
siders that, ‘the proposal does not go further than existing UK legislation, which is
considered to be adequate and not to require change’ (House of Lords Committee on
the European Union, (1999–00 HL 34, App.3). For discussion of EU anti-terrorist policy,
see Monar, Chapter 20, in this volume, and Walker, ‘Terrorism and Criminal Justice’,
at 323–5.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 459

current Labour Government introduced a new counter-terrorism scheme
with the introduction of the Terrorism Act 2000 (TA) and the ATCSA of
2001. This scheme offers a strong contrast to the previous one of the 70s, 80s
and 90s. This chapter demonstrates that the new scheme represents a new
model of counter-terrorist legislation that is more open to the criticism that it
fails the test of proportionality – ‘a recurring theme in the interpretation of
the Convention’20 – discussed below. The test derives from the principle
encapsulated in Article 15 of the ECHR, which allows for derogation from
certain fundamental rights protected by the Convention in states of emer-
gency, but only to the extent ‘strictly required by the exigencies of the
situation’. This chapter will argue that the current Government shows little
recognition of the need to tailor provisions more precisely to the particular
emergency in order to avoid unnecessary impairments of human rights.

II. UK counter-terrorism legislation – the criminal justice model
The previous UK counter-terrorist scheme – essentially the Prevention of
Terrorism (Temporary Provisions) Act 1989 (PTA) and the Northern Ireland
(Emergency Provisions) Act 1996 (EPA) as amended – revealed some accep-
tance of the principle that emergency measures should be adopted only in the
face of immediate and severe need. The old model for the counter-terrorist
legislation – temporary, graduated to levels of threat, incrementally devel-
oped in the face of particular emergencies, with localized effect – was viewed
in many quarters as deeply flawed, not least in that the legislation became
more far-reaching as the terrorist activity diminished. It was at its most
extensive, as a temporary measure, in 1998, although the Irish peace process
was in being. Nevertheless, it had not entirely lost touch with the principles
often put forward by government Ministers and by civil libertarians: that in a
democracy, steps taken in abandonment of a commitment to human rights
should be subject to the most rigorous tests for proportionality derived from
Article 15 ECHR: an immediate and serious threat should be evident; the
measures adopted should be effective in combating it and should go no
further than strictly necessary to meet it. The additions to the original
legislation were relatively minor and usually had at least an apparent justifi-
cation as a response to an actual terrorist act. In contrast, the counter-
terrorist scheme post-2000, aimed mainly at extreme Islamic groups and
at ‘international terrorists’ generally, is more extensive than in the worst
years of Irish terrorist violence. Its cornerstone is formed by the Terrorism
Act 2000.


20
D. J. Harris, M. O’Boyle, C. Warbrick, Law of the European Convention on Human Rights
(London, Butterworths, 1995), at 11.
HELEN FENWICK AND GAVIN PHILLIPSON
460

A. The definition of terrorism in the 2000 Act
The TA, s. 1(1) provides that ‘terrorism’ means the use or threat, ‘for the
purpose of advancing a political, religious or ideological cause’, of action
‘designed to influence a government or to intimidate the public or a section
of the public’, which involves serious violence against any person or serious
damage to property, endangers the life of any person, or ‘creates a serious
risk to the health or safety of the public or a section of the public, or is
designed seriously to interfere with or seriously to disrupt an electronic
system’. This extraordinarily wide definition covers such action occurring
anywhere in the world (under s. 1(4)). It is not an offence to ‘be a terrorist’
under this definition unless, as indicated below, the group to which the
‘terrorist’ has links is proscribed since membership of such a group is an
offence in itself. The definition covers the actions of the most extreme and
dangerous terrorist groups, such as al Qaeda, but it also covers on its face
forms of direct action adopted by protest groups. In Australia and South
Africa, such groups were expressly exempted from those countries’ equiva-
lent terrorist legislation when the definition of terrorism was borrowed
from the UK’s TA, s. 1.21 Significantly, the s. 1(1) definition creates a
potential effect that is far wider in practice than the effect of the previous
definition (under s. 20 PTA) since the new legislation, unlike the PTA,
allows the definition itself to determine the application of the special
powers.22


B. Proscription-related offences
Under the TA, the power of proscription and all the proscription-related
offences (formerly under the PTA) are retained, and their impact is greatly
extended. The power to add to or delete groups from the relevant TA Schedule
is exercised under s. 3(3) by the Secretary of State, by order. Thus the initial
exercise of the proscription power is retained within the executive domain.
Under s. 3(4) the power may be exercised ‘only if he believes that [the organiza-
tion] is concerned in terrorism’. The proscription power is wider therefore than
the application of the s. 1(1) definition itself would warrant, since groups which
do not themselves fall within the s. 1 definition can be proscribed. Parliament’s
approval is required for additions to, or deletions from, the list, as it was under

21
See Chapters 24 and 25, respectively, in this volume.
22
‘Terrorism’ was defined in section 20(1) of the PTA 1989 as: ‘the use of violence for
political ends and includes any use of violence for the purpose of putting the public, or any
section of the public in fear’. But the special powers conferred applied only to ‘terrorism
connected with the affairs of Northern Ireland’ or (in certain narrow instances) to
international terrorism.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 461

the PTA provisions.23 Under s. 11(1) TA a person commits an offence if s/he
belongs or professes to belong to a proscribed organization. It is notable that
there is no mens rea requirement.24


C. Special ‘terrorism’ offences
The TA applies all the special ‘terrorism’ offences that were developed in
the context of the PTA or EPA to an extremely wide range of organ-
izations. Unless and until the Home Secretary proscribes a range of inter-
national political groups advocating terrorist tactics in their own countries
to bring down oppressive regimes,25 or domestic extremist groups covered
by the s. 1 definition, the proscription-related offences will not apply to
them. But all the special terrorist offences, which have no equivalents in
ordinary criminal law, apply, as does the special criminal justice regime
under the TA for suspected terrorists, affording them lesser rights within
the criminal justice system (in relation to stop and search, arrest and
detention) than ‘ordinary’ criminals.26 In so far as the offences discussed
below curb expression or association rights protected under the HRA
(Articles 10 and 11 ECHR), it was assumed that no derogation from
those Articles was required, on the basis that the offences, even coupled
with the very broad definition of terrorism, set permissible limits on those
rights.
A range of very broad offences are available. Section 56 TA makes it an
offence, carrying a maximum sentence of life imprisonment, to direct ‘at any
level’ a terrorist organisation. Under Section 19 TA it is an offence to fail to
report information to the police that comes to one’s attention in the course of
a trade, profession, business or employment and which might be of material
assistance in preventing an act of terrorism or in arresting someone carrying


23
s. 123(4). Al Qaeda itself and its associated groups are of course proscribed, along with
other groups not linked to it, including the PKK and various groups associated with
Northern Ireland.
24
A maximum penalty of ten years’ imprisonment is imposed. Under s. 11(2) it is a defence
to prove that the organization was not proscribed when the person became a member or
that he has not taken part in the activities of the organization since it was proscribed.
S. 12(1) provides that it is also an offence to solicit support, other than money or other
property, for a proscribed organization. See also the offences under s. 12(2) and 12(3) of
arranging, managing or speaking at meetings designed to support or further the activities
of a proscribed organization and s. 13, relating to the wearing of badges or uniforms
signalling support for such organizations.
25
Some of these groups, such as the PKK, are already proscribed; see note 23 above.
26
See H. Fenwick, Civil Liberties and Human Rights (3rd ed, London, Cavendish Publishing,
2002), Ch. 11.
HELEN FENWICK AND GAVIN PHILLIPSON
462

out such an act.27 Section 38B ATCSA broadens this provision immensely: it
makes it an offence, subject to an unexplicated defence of reasonable excuse,
for a person to fail to disclose to a police officer any information which he
knows or believes might be of material assistance in preventing an act of
terrorism or securing the apprehension or conviction of a person involved
in such an act. Family members are not exempted from the duty. A further
wide range of people are potentially subject to criminal penalties under
s. 58(1) TA, the provision relating to the collection of information, which is
based on s. 16B PTA.28 S. 57(1) TA is particularly draconian in imposing a
reverse burden of proof: it provides that a person is guilty of an offence if he
has an article in his possession in circumstances giving rise to a reasonable
suspicion that the article is in his possession for a purpose linked to terrorism.
Under s. 57(2) the accused can rebut this presumption of guilt by proving
that the article was not in his possession for the purpose mentioned in
s. 57(1).29
These offences could probably originally only have been introduced in the
context of the threat from Irish terrorism, in some instances at a time when
the number of deaths from bomb attacks had been very high in the preceding
years. But the TA does not act only as the ‘trigger’ applying the old PTA
or EPA offences to a wider range of groups; it also creates new offences
of inciting terrorism abroad, which apply under ss. 59–61.30 Reviewing
the existing powers available to the executive in fighting terrorism, the
Joint Committee on Human Rights commented, ‘the UK’s armoury of anti-
terrorism legislation is widely regarded as the most rigorous in Europe’.31 The
very broad scope of the offences described above must be borne in mind when
considering the necessity of introducing the further power of detention
without trial.



27
Subs. (5) preserves an exemption in respect of legal advisers’ privileged material.
28
S. 58(1) provides: ‘A person commits an offence if (a) he collects or makes a record of
information of a kind likely to be useful to a person committing or preparing an act of
terrorism, or (b) he possesses a document or record containing information of that kind.’
The offence lacks any requirement of knowledge regarding the nature of the information or
any requirement that the person intended to use it in order to further the aims of
terrorism, though a defence of ‘reasonable excuse’ is provided.
29
Under s. 57(4), if it is proved that the article and the accused were both present on the
premises or that the article is present on premises which he occupies or habitually uses,
this may be sufficient evidence of possession, unless he proves that he did not know of its
presence or had no control over it.
30
Under s. 59(1) the offence is made out if the act of terrorism incited would, if committed
in England and Wales, constitute one of the offences listed in subs. (2), which include the
more serious offences against the person, including murder.
31
Second Report (note 12) above, at 35.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 463

III. UK counter-terrorism legislation – the detention without
trial scheme32
A. The introduction of Part 4 of the Anti-Terrorism, Crime and
Security Act, and the Derogation Order
The problem faced by the Government after September 11 was presented to
Parliament and a number of parliamentary committees33 in the following
terms: a dilemma arises in respect of persons suspected of being international
terrorists but who cannot be placed on trial due to the sensitivity of the
evidence and the high standard of proof, and cannot be extradited, or
deported to their country of origin, because there are grounds to think that
they would there be subject to torture or inhuman and degrading treatment,
in breach of Article 3 ECHR.34 The dilemma arose due to the decision of the
European Court of Human Rights in Chahal v. UK,35 in which it found that a
breach of Article 3 will arise where a country deports a person to another
country, knowing that he or she will face a substantial risk of Article 3
treatment in that other country.36 Article 3 imposes an absolute obligation
on signatory states. Further, the UK has ratified Protocol 6 of the Convention
and therefore cannot deport persons to countries where there is a real risk
that the death penalty will be imposed.37 As a matter of domestic law, it is
clear that the power to detain persons prior to deportation under Schedule 3,
paragraph 1 of the Immigration Act 1971 is limited to such time as is
reasonable to allow the process of deportation to be carried out, and that
deportation should follow promptly after the making of the order: R v.
Governor of Durham prison ex parte Singh.38 Thus current powers of detention
prior to deportation did not provide the Government with a solution since
the suspected terrorists in question could not be deported within a reasonable
time, or, in some instances, at all.
The Government’s preferred solution to the dilemma was to introduce
detention without trial for foreign nationals suspected of involvement with


32
The ATCSA had a large number of provisions many of which were not counter-terrorist
measures: see H. Fenwick ‘The Anti-Terrorism, Crime and Security Act 2001: A propor-
tionate response to September 11?’ [2002] 65 MLR 724–762. This section draws to an
extent upon that article.
33
Home Affairs Select Committee, The Anti-Terrorism, Crime and Security Bill (HC
(2001–02) 351, 10 Nov. 2001).
34
Article 3 provides: ‘No one shall be subjected to torture or to inhuman or degrading
treatment or punishment’.
35
(1996) 23 EHRR 413. 36 Ibid. at 74.
37
X v. Spain DR 37 (1984) 93; Aylor-Davis v. France (1994) 76-A DR 164; Raidl v. Austria
(1995) 82-A DR 134. Protocol 6 prohibits the death penalty in time of peace: it was ratified
by the UK on 27 Jan. 1999.
38
[1984] 1 WLR 704.
HELEN FENWICK AND GAVIN PHILLIPSON
464

terrorism, even where they could not be deported. But it considered that
the new provisions would be incompatible with Article 5(1) ECHR, which
protects the right to liberty and security of the person, afforded further effect
in domestic law under the Human Rights Act (HRA). Although there is an
exception under Article 5(1)(f) allowing for detention of ‘a person against
whom action is being taken with a view to deportation or extradition’, it was
clear, following Chahal, that it would not cover the lengthy detentions
envisaged during which deportation proceedings would not be in being.39
Therefore, in order to introduce the new provisions it was necessary to
derogate from Article 5(1). The derogation was made by giving notice to the
Secretary-General of the Council of Europe under Article 15(3) ECHR.
Article 15 provides that ‘in time of war or other public emergency threatening
the life of the nation’ any of the contracting parties may take measures
derogating from its obligations under the Convention, ‘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’. No
derogation from Articles 3, 4(1), 7 or 2 (‘except in respect of deaths resulting
from lawful acts of war’) can be made under Article 15. Before giving notice
to the Secretary-General the Government made an order under s. 14 HRA,
the Human Rights Act (Designated Derogation) Order 2001,40 setting out the
derogation from Article 5(1). The derogation itself is expressed to subsist
until it is withdrawn, but for HRA purposes it will cease to have effect after
five years unless its extension is approved by the positive resolution proce-
dure in both Houses of Parliament.41 The schedule to the Derogation Order,
which takes the form of a draft letter to the Secretary-General, points out that
the UN Security Council recognized the 11 September attacks as a threat to
international security and required states in Resolution 1373 to take measures
to prevent terrorist attacks, which include denying a safe haven to those who
plan, support or commit such acts. The schedule argues that on this basis
there is a domestic public emergency, which is especially present since there
are foreign nationals in the UK who threaten its national security. Therefore,
it argues, the measures in Part 4 ATCSA are clearly and strictly required by the
very grave nature of the situation. The Government also derogated from
Article 9 of the International Covenant on Civil and Political Rights as a further
method of safeguarding the new measures from challenge.42


39
See Chahal v. UK (1996) 23 EHRR 413, [113]. In order to detain, deportation proceedings
should be in being and it should be clear that they are being prosecuted with due diligence.
40
SI 2001 No. 3644. It was laid before Parliament on 12 November 2001, coming into effect
on the following day. It designates the proposed derogation as one that is to have
immediate effect.
41
S. 16 HRA.
42
Under Article 4(1) of the Covenant: see UK Derogation under the ICCPR, 18 Dec 2001.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 465

The Part 4 provisions are sometimes spoken of as amounting to ‘indefinite
detention’. This is not strictly so: the detention powers in Part 4 will expire on
10 November 2006.43 Detention is therefore limited to a little less than five years
for those arrested immediately after the Act was passed in December 2001.
Moreover, Part 4 must be renewed by order, subject to Parliamentary approval,
every fifteen months.44 However, it appears that the Government’s intention is to
introduce legislation to Parliament in order to retain these powers, once they lapse,
assuming that the current ‘emergency’ is considered to be ongoing at that point.45
Therefore in practice the detention may be termed indefinite.

B. The Part 4 detention provisions
Detention under Part 4 ATCSA depends on certification by the Home Secretary
as – in a sense – a substitute for a trial. Under s. 21(1) the Home Secretary can
issue a certificate in respect of a person on the basis of (a) a reasonable belief that
the person’s presence in the UK is a ‘risk to national security’ and (b) reasonable
suspicion that he or she is a terrorist. Under s. 21(2) a ‘terrorist’ is a person who
‘is or has been concerned in the commission, preparation or instigation of acts of
international terrorism’ or (b) is a member of or belongs to an international
terrorist group or (c) has ‘links’ with such a group. Under s. 21(4) such links will
exist only if the person ‘supports or assists’ the international terrorist group.
‘Terrorism’ has the meaning given to it in s. 1(1) of the Terrorism Act 2000
(TA).46 Thus the TA and ATCSA must be read together. But the detention
provisions in Part 4 of ATCSA do not apply to all those within the definition in
s. 1(1) TA; the power to detain only applies to ‘suspected international terrorists’
who are non-British citizens. Under s. 21(5) ATCSA a ‘suspected international
terrorist’ is a person who falls within the definition of terrorism in s. 1 TA and
who has been certified under s. 21(1).
It is crucial that the definition of a ‘suspected international terrorist’
should be precise since such a person can be subject to lengthy – perhaps
indefinite – detention without trial. But, as indicated, the definition of
‘terrorism’ under s. 1 TA, on which it is centrally based, is itself immensely
broad and imprecise. No full definition of an ‘international’ terrorist is
contained in the Act, but s. 21(3) provides that an international terrorist
group is a group subject to the control or influence of persons outside the UK
and the Home Secretary suspects (not qualified by ‘reasonably’) that it is
concerned in the commission, preparation and instigation of acts of terror-
ism. Further, a person can be termed a ‘suspected international terrorist’ on
the basis that he or she has ‘links’ with an international terrorist group.


43
S. 29(7). 44 S. 29(1)–(6).
45 46
As appears from the Government’s discussion paper (note 119 below). S. 21(5).
HELEN FENWICK AND GAVIN PHILLIPSON
466

The power of certification can only be exercised in respect of persons who,
under s. 22 ATCSA, can be subject to various immigration controls.47 Under
s. 23(1) persons falling within s. 21 ‘may be detained under a provision
specified in subs. (2) despite the fact that his removal or departure from the
UK 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’. S. 23(2) refers to Schedule 2 paragraph 16 of the 1971 Act
(detention of persons liable to examination or removal) and Schedule 3
paragraph 2 of that Act (detention pending deportation). No definition or
explanation of the terms used in s. 23(1) is offered. Provision under (a) must
be taken to relate to Article 3 and Protocol 6 of ECHR, while the ‘practical
consideration’ covers inter alia a failure to identify a country which will take
the person. The detention powers were used immediately to detain eleven
persons in Belmarsh Prison in London. Two of them stated that they were
prepared to leave the country and did so.48 Since that time a further five
persons have been detained.
As the Joint Committee on Human Rights pointed out, the provisions
go beyond answering the dilemma the Government claimed to be addres-
sing.49 The scheme covers on its face a range of persons unconnected with
al Qaeda – the terrorist group which was almost certainly responsible for the
September 11 attacks. On its face, it would cover those who pose a threat only
to other countries, such as Tamil Tigers, and also those who merely have
‘links’ with such groups; it could, for example, cover a Kurd who supports the
PKK.50
A number of qualifying provisions that would have improved this scheme
in human rights terms are notable by their absence. For example, it is not
necessary prior to certification for the Home Secretary to receive an assess-
ment from legal advisors regarding the feasibility of bringing any of the
potential detainees to trial rather than relying on this scheme. Nor must an
interim assessment be made on the basis that fresh evidence has been
obtained while the detainee is in detention, rendering a prosecution feasible.
The significance of this omission was high-lighted in the case of Abu Qatada
v. Secretary of State for the Home Dept:51 The Special Immigration Appeals
Commission (SIAC) found that the evidence against Qatada was very strong
and the extensive evidence against him was reviewed. Clearly, the question
why Qatada could not be prosecuted under one of the TA offences arises. The


47
Defined widely to include powers concerning asylum seekers: see ss. 3, 3B, 3(6), 5(1), 8–10
and 12–14 Immigration Act 1971 and s. 10 Immigration and Asylum Act 1999.
48
See the Guardian 15.4.02. 49 Fifth Report (note 12 above), at 6.
50
Such an individual could alternatively be arrested and charged with one of the proscription-
linked offences under the TA: s. 12(1) would provide the obvious one.
51
File No. SC15/2002.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 467

offence under s. 59(1) TA, for example, might well have been applicable.
Obviously some of the evidence might be difficult to present in court, but
SIAC’s judgment gives the impression that sufficient evidence exists that
could be presented in a trial, probably with safeguards such as anonymity
for certain witnesses.
No particular conditions of detention are prescribed for the detainees, and
bearing in mind that it is de facto indefinite, they are under particular mental
stress. On 22 April 2004, the Special Immigration Appeals Tribunal ordered
the release of one of those detained under Part 4 ATCSA, known as ‘G’, on
the grounds that his prolonged detention without trial had affected his
mental health so badly that he had become psychotic. SIAC ordered that
G be placed under a form of house arrest in which his movements would be
closely monitored, he would be denied access to means of electronic com-
munication and electronically tagged. Another detainee who has recently
been released52 has told the press that a number of the detainees have become
mentally ill as a result of their detention. The detainees are subject to the same
conditions as remand prisoners in general – albeit in high security detention
applicable to category A prisoners – although their status differs greatly from
that of a remand prisoner who can expect to be detained for a relatively short
period of time.
There is no express provision allowing for the release of the detainee if, for
example, the group to which he allegedly belongs, or has links to, renounces
terrorist activity. No obligation is placed on the Home Secretary to receive
independent and continuing assessments of the degree to which a particular
detainee is at risk of Article 3 treatment if deported. There is no express
provision allowing persons at risk of Article 3 treatment abroad to leave if
they are prepared to take the risk of that treatment. There is no requirement
that detainees must be deported or removed, if they wish to be, when and if
a safe third country can be found, or indeed imposing any duty at all to find a
safe third country. However, it was argued before SIAC and the Court of
Appeal that such a duty should be implied: if safe deportation by arrangement
with the receiving country appears a possibility as an alternative to detention
without trial, then such detention surely cannot be said to be ‘strictly
required’ under Article 15. Article 15 could therefore be said to impose a
positive duty upon the Secretary of State to seek to deport those detained.
However, this argument was summarily rejected by the Court of Appeal in its
‘generic judgment’.53


52
See M v. Secretary of State for the Home Department (2004) EWCA Civ 324.
53
Laws LJ said that he rejected this suggestion ‘out of hand’: A, B, C, D, E, F, G, H, Mahmoud
Abu Rideh, Jamal Ajouaou v. Secretary of State for the Home Department [2004] EWCA
1123.
HELEN FENWICK AND GAVIN PHILLIPSON
468

C. Legal challenges to the derogation and the Part 4 scheme
The Special Immigration Appeals Commission (SIAC), established under s. 1
of the Special Immigration Appeals Commission Act 1997 (SIACA), plays a
crucial role in this scheme since in most instances it will represent the only
means of challenging the decision to detain. Under s. 6(1) HRA, SIAC, as a
public authority, is bound to act compatibly with the ECHR.54 Under s. 21(8)
ATCSA, the Secretary of State’s decision in connection with certification can
only be questioned under ss. 25 or 26, which deal with challenges to the
certificate or reviews of it in SIAC. There are two methods of judicial control
enshrined in Part 4. Under s. 25 a detainee may appeal to SIAC which has the
power to cancel the certificate of the Home Secretary, if it finds that there
were no reasonable grounds for a belief or suspicion of the kind referred to in
s. 21(1)(a) or (b), or that for ‘some other reason’ the certificate should not
have been issued. The Commission can allow the appeal and cancel the
certificate, but the Home Secretary can then issue a further certificate under
s. 27(9).
There is also a distinct power of review of the certificate under s. 26, which
is not instigated by the applicant and which must occur in SIAC.55 However,
it is of crucial significance to note that the grounds upon which SIAC may
quash a certificate under the review power are very significantly narrower
than they are on the original appeal under s. 25. On review, s. 26(5) states that
the Commission:
a. ‘must cancel the certificate if it considers that there are no reasonable grounds
for a belief or suspicion of the kind referred to in s. 21(1) [i.e. that the person
is a risk to national security or that he or she is a terrorist] and
b. otherwise may not make any order . . . ’56
Therefore a finding at some future point by a court that the derogation order
is unlawful,57 would not provide grounds for SIAC to cancel the certificate of
those who had already unsuccessfully appealed, under s. 25, against their
detention, precisely because the catch-all ground for cancelling the certificate

54
There is an exception in subs. (2) of section 6: a public authority is relieved from acting
compatibly with the Convention if primary legislation either requires it to (subs. (2)(a))
or otherwise if it is acting to give effect to primary legislation that cannot be interpreted
compatibly with the Convention rights: subs. (2)(b). Neither exception has been found to
be relevant to SIAC’s role under ATCSA.
55
The first review must occur as soon as is reasonably practicable after six months from the
issue of the certificate under s. 26(1). However, if there is an appeal this will delay the point
of the first review, under s. 26(2), which will occur six months from the point at which the
appeal is finally determined.
56
Emphasis added.
57
At the time of going to press the House of Lords is expected to give its judgment very shortly
(in November or December 2004) on whether the derogation is lawful. [Editorial note: In
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 469

in s. 25(1)(b) – ‘some other reason’ – applies only on initial appeal, not on
subsequent reviews. Therefore any attempt to detain further suspects could
be frustrated by successful appeals to SIAC, which could cancel the certifi-
cates,58 relying on this ground. This could create an extraordinary situation
in human rights terms in which those already detained could continue to be
held, despite the fact that the derogation underpinning the detention power
had been found to be unlawful.59
SIAC represents an example of what Dyzenhaus refers to in this book as
‘imaginative institutional design’, intended to provide for the continuing
operation of the rule of law, even in emergency situations, without threaten-
ing the integrity of the regular legal system.60 Clearly, Dyzenhaus accepts
that the standard of due process in SIAC will inevitably be lower than in a
criminal trial, although he views this as a necessary compromise in preser-
ving that integrity. However, following the generic judgments in SIAC and
the Court of Appeal,61 it is now clear that the SIAC procedure has three very
significant weaknesses, the first two of which were at least partly avoidable
through robust judicial interpretation of the relevant Part 4 rules. The first
relates to the standard of proof for certification. It was argued before the
Court of Appeal that, ‘having regard to the fundamental importance of the
right to liberty and security of a person and to the prospect of indefinite
detention inherent in Part IV of the 2001 Act, a very high standard is
required . . . when scrutinising the issue of a certificate under Section
21’.62 (Any notion that the detentions might in practice be short-lived has
now been dispersed: most of the detainees have been in detention for three
years.) However, in its generic judgment, the Court rejected this contention,
and confirmed that, given the use of the terms ‘reasonable belief ’ and
‘reasonable suspicion’ in section 21 ATCSA, SIAC could not apply a rigorous

December 2004 the House of Lords issued its ruling in A. v. Secretary of State for the
Home Department [2004] UKHL 56. See ‘Postscript’, Chapter 28, in this volume]
58
It is of course impossible to say in advance whether SIAC would cancel certificates on
appeal on this basis, although the language of s. 25(b) is clearly broad enough to allow
them to do so.
59
Under the HRA, it is also the case that primary legislation incompatible with Convention
rights remains valid and of full effect (ss. 3(2) and 4(2)) and moreover, may still be
enforced by public authorities (s. 6(2)). There is of course the further possibility that
specific appeals against SIAC’s refusal under s. 25 to cancel certificates authorizing
detention could reach the House of Lords after it had found the derogation unlawful (if
it makes such a finding in its forthcoming judgment): in such a case, presumably, the
Lords could direct SIAC to release the detainees under s. 25(1)(b) on the basis that there is
now ‘some other reason’ for cancelling the certificates. SIAC’s determinations under s. 25
are presumably not exhausted until all appeals against its findings are concluded.
60
See further Chapter 4 at 67.
61
See SIAC’s generic judgment of 29 October 2003 on appeals SC/1,6,7,9,10/2002 at 117 and
note 53 above – the CA judgment.
62
Ibid., at 28 per Pill LJ.
HELEN FENWICK AND GAVIN PHILLIPSON
470

standard in testing the Secretary of State’s evidence. As Laws LJ succinctly
put it:
In order to be persuaded that ‘reasonable grounds’ exist, SIAC does not
have to be satisfied on the balance of probabilities either that the appellant
is a threat to national security, or that he is a terrorist.63
In other words, there is no ‘burden of proof ’ as that concept is commonly
understood. Instead, SIAC is ‘merely concerned with deciding whether there
are reasonable grounds for [the Secretary of State’s] belief or suspicion.64
Thus the Secretary of State’s belief is tested to a standard below that of the civil
standard of proof.
The second key due process concern is that the normal rules of evidence do
not apply to SIAC – it may admit evidence inadmissible in a court of law.65
The concern was raised in hearings before SIAC that at least some of the
evidence relied upon by the Secretary of State might have been obtained by
torture or ill-treatment,66 given revelations about the treatment of prisoners
in Guantanemo Bay and elsewhere. It was argued that it would be unlawful
for SIAC to admit such evidence, since it would create an abuse of process at
common law or a breach of Article 6 ECHR, or both. This argument did not
succeed before SIAC and was recently rejected, by a two to one majority in the
Court of Appeal’s generic judgment.67 It was also pointed out that admission
of evidence obtained by torture would breach Article 15 of the UN
Convention on Torture (UNCAT), which specifically prohibits the admission
of such evidence ‘in any proceedings’.68 The Court of Appeal, however, found
that the provisions of UNCAT, as an unincorporated treaty, could not be
directly enforced by domestic courts. Further, neither SIAC’s rules of proce-
dure nor the common law could, it was found, be reinterpreted to impose this
prohibition indirectly:
It would be contrary to the exercise of the statutory power as intended by
Parliament, and also unrealistic, to expect the Secretary of State to inves-
tigate each statement [relied upon as evidence] with a view to deciding
whether the circumstances in which it was obtained involved a breach of
Article 3.69
It must be stressed that both the Court of Appeal and SIAC thought that no
such evidence had in face been relied upon.70 However, it is extraordinarily

63
Ibid., at 364. 64 Ibid., at 369. 65 Rule 44(3), SIAC Procedure Rules.
66
See SIAC’s generic judgment (note 61 above) and the Court of Appeal judgment (note 53
above) for discussion of the relevant hearings.
67
Neuberger LJ alone accepted that admission of torture evidence by SIAC would create a
breach of Article 6(1): note 53 above, at 467).
68
The wording is clearly not confined to criminal proceedings.
69
Note 53 above, at 129. See also 133. 70 Ibid., at 239.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 471

disturbing to find that the UK courts are prepared, even in principle, to
countenance the use of evidence that may have been obtained in breach of a
norm of international law. Such use is specifically outlawed by international
treaty (UNCAT) and fundamentally undermines the rule of law. The concern
is all the more pressing when such evidence is used as the basis for a practice
that amounts to a further fundamental violation of human rights norms:
executive detention.
The third due process concern relates to natural justice within SIAC. Its
Rules of Procedure71 are intended to amount to a compromise between due
process values and the Government’s need to protect sensitive evidence and
intelligence gathering methods from those it believes to be terrorists. The
Rules allow for hearings in the absence of the person bringing the proceedings
and his or her legal representative. In such instances a Special Advocate (SA)
will be appointed who has had security clearance. The procedure is divided
between closed and open sessions. Under SIACA s. 5(3)(b) and Rules of
Procedure, rule 19, the appellant and his or her advocate are excluded from
the closed sessions in which the sensitive intelligence-based evidence against
the applicant is disclosed to SIAC. The advantage of the closed sessions is that
SIAC can hear all the evidence, including the sensitive evidence, before
making its determination. The SA is permitted to attend these sessions, and
hear such evidence, and obviously can seek to challenge it. However, the
crucial problem in due process terms is that the SA cannot discuss
this evidence with his or her client. Therefore the applicant cannot be
informed as to what may in many cases be the crucial evidence against him
and cannot therefore challenge it. He is also disadvantaged when under cross-
examination since he is unable to appreciate the significance of a number of
the questions – a matter that SIAC itself has recognized.72
Clearly, therefore, the position of the applicant is weak before SIAC: the
extent to which the evidence can genuinely be tested is questionable. As
White puts it in relation to this type of Tribunal: ‘[it] attempts to create an
adversarial forum where one of the parties is severely hampered in presenting
his or her case’.73 As a matter of law the procedure in SIAC could be
challenged as incompatible with Article 6, the fair trial guarantee.
This argument was raised in both SIAC and the Court of Appeal;74 it was
accepted in the latter that challenges to detention under SIAC do fall within
the remit of Article 6 since they were viewed as a determination of civil


71
SI 1998 No. 1881, amended by SI 2000 No. 1849.
72
SIAC’s generic judgment of 29 October 2003 on appeals SC/1,6,7,9,10/2002 at 117.
73
For discussion see C. White ‘Security Vetting, discrimination and the right to a fair trial’
[1999] PL 406–18, at 413. See also C. Walker The Prevention of Terrorism (Manchester
University Press, 1986), at 82; he advocates an inquisitorial system for such Tribunals.
74
A, X, Y and Others v. Secretary of State for the Home Dept [2003] 1 All ER 816.
HELEN FENWICK AND GAVIN PHILLIPSON
472

rights.75 However, Lord Woolf found that within the national security con-
text, which demanded some flexibility in applying due process values, the
procedure satisfied the requirements of Article 6(1). This is clearly question-
able: Lord Woolf ’s assertion once again failed to take account of the factor of
indefinite detention, which clearly calls for strong due process protection
within the Article 6 civil rights context, even if it is to fall short of that
demanded by a criminal trial. However, his approach was echoed by Laws
LJ in the generic judgment, who repudiated the suggestion that ‘the Article 6
right should in some way be marginalised in the name of national security’,
but insisted ‘that the right’s application, and its scope in practice, is highly
dependent upon the practical context in which it is asserted’.76
So far, in the eleven cases determined by SIAC following appeal against
certification, the Home Secretary’s decision to certify has been upheld in all
but one of them. The Court of Appeal has agreed with SIAC’s decision in all
instances,77 with the result therefore that one detainee has been released.
However, in M v. Secretary of State for the Home Department78 the Special
Advocates were able to mount an effective challenge in the closed sessions to
the evidence that M had links to al Qaeda. As a result SIAC decided that
reasonable suspicion under the tests of ss. 21 and 23 was not established, and
the Court of Appeal upheld this ruling. This instance indicates that the SIAC
procedure has some efficacy as a means of testing the basis of the certification.
However, as the Joint Committee on Human Rights recently pointed out, it is
deeply concerning ‘that an individual can be wrongly detained without
charge for some fifteen months before the error in authorising such detention
is established’.79
The Court of Appeal in M deferred to SIAC’s assessment of the demands of
national security, even though its view was opposed to that of the Home
Secretary. This was the exact converse of the approach of the House of Lords
in Secretary of State for the Home Dept ex parte Rehman,80 in which the House
of Lords refused to uphold SIAC’s assessment of the risk to national security,
deferring instead to the Home Secretary’s view. This was despite the fact that
SIAC was empowered to review the Home Secretary’s decision on the widest

75
Ibid., at 57: the Court of Appeal and SIAC determined that the proceedings therefore fell
within Article 6(1) which guarantees ‘a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law’. However, it was also found that
SIAC proceedings do not concern a ‘criminal charge’: therefore Art. 6(2), which sets out a
series of minimum rights in relation to criminal trials, including the presumption of
innocence, legal assistance and knowledge of the case against, was held not to apply. For
further discussion, see H. Fenwick note 26 above at 750–4.
76
Note 53 above, at 260.
77
See M v. Secretary of State for the Home Department SIAC – SC/15/2002; CA 2004 EWCA
Civ 324.
78
Ibid. 79 Eighteenth Report (2003–4), at 32. 80 [2002] 1 All ER 123.
F U N D A M E N T A L R I G H T S A N D A N T I -TERRORIST L E G A L P O L I C Y I N T H E U K 473

possible grounds, including his findings of fact, or if it considered that his
discretion should have been exercised differently.81 The difference in
approach between the two decisions can presumably only be justified (if at
all) by the argument that the more draconian provisions at issue in M,
allowing for detention without trial, required a greater degree of judicial
oversight.82 However the Court of Appeal, in its later generic judgment,
appeared to reject the argument that the context of indefinite detention
justified a stricter standard of review than that applied in Rehman: there are
explicit dicta to this effect,83 and Rehman was cited approvingly in its judg-
ment at several points.
All eleven detainees challenged the designated derogation itself in SIAC,
under s. 30 ATCSA.84 They also challenged the detention scheme in relation

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