Background Briefing

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Parliamentary Reviews of Indefinite Detention Under Part 4

The ATCSA is subject to considerable scrutiny by the U.K. parliament. The Newton Committee review of the act is mandated by the legislation itself.75 Under the act, Part 4 is subject to additional annual review by Lord Carlile, a member of the House of Lords and former judge, as well as periodic consideration by Parliament, most recently in February and March 2004.76 Lord Carlile takes no position as to whether the powers should continue. His mandate is limited to the question of whether the detention powers under Part 4 are being exercised in a manner consistent with the act.77 But while Lord Carlile considers that the Home Secretary has certified persons “only in appropriate cases,” he shares “SIAC’s view that what may be reasonable for an arrest for a short period of detention may be insufficient for indefinite detention.”78 

The act has also been reviewed for human rights compliance by the Joint Human Rights Committee of the U.K. parliament, which has expressed concern both about discriminatory aspects of Part 4 detention powers and the necessity of the derogation arising from it. The committee’s most recent report endorsed the findings of the Newton Committee, and recommended that “the Government should give a firm undertaking that it will actively seek, as a matter of priority, a new legal basis for its anti-terrorism tactics to be put in place speedily and in accordance with the principles developed in the Newton Committee report.”79

Following publication of the Newton Committee report in December 2003, both houses of parliament had to consider the report within six months or the entire legislation would have lapsed.80 Following debate in the House of Commons on February 25, 2004, and the House of Lords on March 4, 2004, the act remains in force. On February 25, the government published a “discussion paper” entitled Counter-terrorism Powers: Reconciling Security and Liberty in an Open Society and announced a consultation exercise on counter-terrorism measures.81

Notwithstanding its title, the principle objective of the government paper is to defend Part 4 and to rebut the Newton Committee’s conclusions: “we reject the [Newton] Report’s central conclusion that Part 4 powers should be replaced.”82 Part one of the paper argues that indefinite detention is a “proportionate response;” that “it is defensible to distinguish between foreign nationals and our own citizens;” and that “the obligation to derogate is unavoidable.”83 Part two of the paper is a detailed response to the Newton Committee report. The paper’s approach is at odds with the comment in its introduction that “the government’s mind is open.” To date, the government has been unwilling to engage with the very serious concerns about Part 4, even when expressed by a group of senior parliamentarians who expressly state that “it is the arguments of limited efficacy in addressing the terrorist threat that weigh most heavily with us.”84

[75] ATCSA 2001, s.122.

[76] ATCSA 2001, ss. 28-9. Part 4 was renewed by a House of Commons committee on February 26, 2004, and the House of Lords on March 11, 2004. Renewal did not require an affirmative vote by either house.

[77] Lord Carlile of Berriew Q.C., “Anti-terrorism, Crime and Security Act 2001, Part IV s. 28 Review 2003”: para. 7.

[78] Lord Carlile, “Anti-terrorism, Crime and Security Act 2001 Review 2003,” para. 25, and conclusions.

[79] Joint Human Rights Committee, “Sixth Report, 2003-04,” para. 37.

[80] The Act provides that any part of the legislation specified by the privy counselor committee in its report will lapse unless considered by both houses within 6 months. ATCSA s. 123.

[81] Secretary of State for the Home Department, “Counter-Terrorism Powers, Reconciling Security and Liberty in an Open Society: A Discussion Paper,” February 2004.

[82] Secretary of State for the Home Department, “Reconciling Security and Liberty in an Open Society,” para. 46.

[83] Secretary of State for the Home Department, “Reconciling Security and Liberty in an Open Society,” paras. 34-37.

[84] Privy Counsellor Review Committee, “Anti-terrorism, Crime and Security Act 2001 Review,” para. 195.

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