Background Briefing

index  |  next>>


The U.K. government is detaining foreign terrorist suspects indefinitely, a serious violation of its international human rights obligations. Rather than crafting counter-terrorism measures that comply with domestic and international human rights law, the government instead declared a state of emergency and officially suspended (“derogated” from) key human rights protections.

Part 4 of the Anti-Terrorism Crime and Security Act 2001 (ATCSA) allows for the indefinite detention of foreign nationals designated as terror suspects. Those currently detained without charge under it have no expectation of release. Their detention amounts to internment2 with no end in sight.3 Some of those detained under the act have been held since December 2001 in maximum security facilities, with an adverse impact on their physical and their mental health. The mechanism by which they are able to challenge the lawfulness of their detention falls far short of the standards required for those charged with a criminal offence.

In seeking a solution to indefinite detention, the U.K. government is considering deporting the suspects to third countries, including to countries where the suspects face a risk of torture or ill-treatment. International human rights law forbids governments from sending people to places where they face a risk of torture. The U.K. government has signaled it may seek “framework agreements” (also called “diplomatic assurances”) with governments in countries of return that the detainees will not face torture or ill-treatment if returned. The use of such agreements has proved an ineffective safeguard against torture in the past, and would not shield the U.K. from its obligation not to expose people to such treatment.

The U.K. government should repeal the part 4 detention powers and replace them with measures that apply to U.K. and foreign nationals alike, and that do not require derogation from the U.K.’s international obligations, including the European Convention on Human Rights and the International Covenant on Civil and Political Rights.

The U.K. government should not rely upon “diplomatic assurances” in the form of framework agreements to return a person in danger of being subjected to torture or prohibited ill-treatment, to any country for which there is substantial and credible evidence that torture and prohibited ill-treatment are systematic, widespread, endemic, or a “recalcitrant or persistent” problem; to any country where government authorities do not have effective control over the forces in their country that perpetrate acts of torture and ill-treatment; or to any country where the government consistently targets members of a particular racial, ethnic, religious, political or other identifiable group and the person subject to return is associated with that group.

This briefing paper looks at the use of indefinite detention under the ATCSA and its consequences for human rights and for an effective counter-terrorism strategy in the United Kingdom. It examines the legal and factual basis of the derogation from human rights law on which the Part 4 detention power rests, and whether the power constitutes permissible discrimination on the ground of nationality. The paper highlights concerns by U.K. parliamentary and international human rights bodies about the efficacy and necessity of indefinite detention under the ATCSA. It also details the cost of indefinite detention—for counter-terrorism efforts, race and community relations, the willingness of British Muslims to cooperate with the police and security services, and to the detainees themselves.

[2] “Internment” generally refers to preventive detention without trial during time of war or public emergency. The U.K. government introduced internment powers in Northern Ireland in August 1971. Hundreds of people—the great majority of them Irish republicans or nationalists –  were subject to indefinite detention under the powers. According to the European Court of Human Rights judgment in the case of Ireland v. United Kingdom, “…the duration of internment was unlimited. In many cases, after prolongation under later legislation…it lasted for some years.” Ireland v. U.K. (1979-1980) 2 EHRR 25, para. 84. The last of internees were released in December 1975.

[3] The Part 4 powers under the Act would lapse in 2006 if they were not renewed. However, the U.K. government recently pointed to an assessment by Eliza Manningham-Buller, the Director General of the Security Service: “I see no prospect of a significant reduction in the threat posed to the UK and its interests from international terrorism over the next five years, and I fear for considerable number of years thereafter.” Secretary of State for the Home Department, “Counter-Terrorism Powers, Reconciling Security and Liberty in an Open Society: A Discussion Paper,” February 2004.

index  |  next>>June 2004