Prevention of Terrorism Act 2005
Encyclopedia
The Prevention of Terrorism Act 2005 (c 2) is an Act
of the Parliament of the United Kingdom
, intended to deal with the Law Lords' ruling of 16 December 2004 that the detention without trial of eight foreigners (known as the 'Belmarsh 8') at HM Prison
Belmarsh
under Part 4 of the Anti-terrorism, Crime and Security Act 2001
was unlawful, being incompatible with European
(and, thus, domestic) human rights laws.
The Act allows the Home Secretary
to impose "control order
s" on people who are suspected of involvement in terrorism
, which in some cases may derogate (opt out) from human rights
laws. As of yet, no derogating control orders have been obtained under s.4 of the relevant Act.
In April 2006, a High Court judge issued a declaration that section 3 of the Act was incompatible with the right to a fair trial under article 6 of the European Convention on Human Rights. The system of control orders was described by Jeremy Sullivan
as an 'affront to justice'. The Act stands to be repealed by the Terrorism Prevention and Investigation Measures Bill 2011.
, the British government's response to the September 11, 2001 attacks
was to rush through emergency legislation to increase powers to deal with individuals suspected of planning or assisting terrorist attacks within the UK.
A key feature of the Anti-terrorism, Crime and Security Act 2001
was that resident foreigners suspected of terrorism could be interned without trial, if they could not be deported to another country without breaching British human rights legislation (for example, if they might be subject to torture
or the death penalty in their native country). Several individuals were interned, mainly in Belmarsh prison, under these powers; they were free to leave, but only if they left the country, which some did.
The Government claims that it has evidence against these individuals that is inadmissible in court — or unusable in open court due to security concerns — and is reluctant to allow this evidence to be used. However, the House of Lords ruled that the internment
of these people, without trial, was contrary to the Human Rights Act 1998
, mainly because the powers only extended to foreign nationals; the new act allows control orders to be issued against British citizens as well as foreign nationals. This Act remedied the discriminatory nature of the previous provisions.
on 22 February 2005 and allows the Home Secretary to make "control orders" for people he suspects of involvement in terrorism
, including placing them under house arrest
, restricting their access to mobile telephones and the internet
and requiring that visitors be named in advance, so that they may be vetted by MI5
.
The Bill passed the Commons, despite a substantial rebellion by backbench Labour
Members of Parliament
(MPs), and was sent to the House of Lords
, which made several amendments, the most significant being the introduction of a sunset clause, so the Act would automatically expire in March 2006, unless it were renewed by further legislation, much like the Prevention of Terrorism Acts
of 1974–1989.
Other amendments included requiring the Director of Public Prosecutions
to make a statement that a prosecution would be impossible before each individual control order could be issued, to require a judge to authorise each control order, requiring a review of the legislation by Privy Council
lors and restoring the "normal" burden of proof ("beyond a reasonable doubt"), rather than the weaker "balance of probabilities".
The vote in the Lords was notable for being the first time Lord Irvine, friend and mentor of Tony Blair
and recent Lord Chancellor
, ever voted against the Labour
government.
That the Bill was "ping-ponged
" between both houses was evidence of an unusual constitutional crisis
, notable because the urgency of the legislation — the previous powers to detain the individuals in HMP Belmarsh and elsewhere were due to expire on 14 March 2005 — meant that the Parliament Acts 1911 and 1949
, the usual device to handle situations where the Commons and Lords cannot agree on a measure, could not be invoked in order to acquire Royal Assent without the consent of the upper house.
, the Home Secretary, immediately.
Some critics were still unhappy with the compromise reached in the evening of 11 March, pointing out that an Act that removes the 790-year-old principle of habeas corpus
, codified in Magna Carta
, should not have been rushed through Parliament in the first place and that a review leaves it to the opposition to defeat the legislation, unlike a sunset clause, which would require the government to prove that these extraordinary powers were still a necessary and proportionate response to the threat of terrorism in the UK; comparisons were made with the detention provisions of South Africa
's apartheid-era Terrorism Act No 83 of 1967
.
Few critics claimed that the terrorist threat was not real, merely that these powers were not the best way to address that threat, that arbitrary powers are more likely to lead to a miscarriage of justice
and that prosecution in a court of law would be a better solution. The most commonly-presented counter-argument was that protecting British citizens' freedom to live and go about their lives without fear of terrorism is more important than the civil liberties
of suspected terrorists.
, Human Rights Watch
, JUSTICE
and Liberty
. Criticism of the Act included complaints about the range of restrictions that could be imposed, the use of closed proceedings and special advocates to hear secret evidence against the detainee, and the possibility that evidence against detainees may include evidence obtained in other countries by torture.
Lord Carlile reported on 2 February but the Home Secretary announced that he would not be introducing fresh legislation, given that the Terrorism Bill was already under consideration. Instead, the government indicated that it would allow amendment to the Act in consolidating counter-terrorism legislation scheduled for 2007.
In any event, sections 1-9 of the Act are subject to annual renewal by affirmative resolution of both Houses of Parliament. The measures were renewed in 2007 following votes of the Commons (22 February 2007) and the Lords (5 March 2007).
the Prevention of Terrorism Act 2005 is still active, following renewal on 11 March 2009.
issued a declaration under section 4 of the Human Rights Act 1998
that section 3 of the Prevention of Terrorism Act 2005 was incompatible with the right to fair proceedings under article 6 of the European Convention on Human Rights
. Mr Justice Sullivan held:
"To say that the Act does not give the respondent in this case, against whom a non-derogating control order has been made by the Secretary of State, a fair hearing in the determination of his rights under Article 6 of the Convention would be an understatement. The court would be failing in its duty under the 1998 Act, a duty imposed upon the court by Parliament, if it did not say, loud and clear, that the procedure under the Act whereby the court merely reviews the lawfulness of the Secretary of State's decision to make the order upon the basis of the material available to him at that earlier stage are conspicuously unfair. The thin veneer of legality which is sought to be applied by section 3 of the Act cannot disguise the reality. That controlees' rights under the Convention are being determined not by an independent court in compliance with Article 6.1, but by executive decision-making, untrammelled by any prospect of effective judicial supervision."
However, on 1 August 2006, the Court of Appeal reversed this judgement (in part). They agreed that MB's Article 5 rights had been breached, but said that it did not infringe on his Article 6 rights. (Secretary of State for the Home Department v. MB [2006] EWCA Civ 1140).
On the point of particular Convention rights being breached, it is interesting to note the distinction the court made in the above case. Indeed, following Secretary of State for the Home Department v JJ the House of Lords held that the restrictions imposed within the control would be open to challenge on the basis of incompatibility, with focus on Art 8 (right to privacy and family life), Art 10 (freedom of speech) and Art 11 (freedom of assembly). In the case of JJ, the House of Lords drew an analogy between a prisoner in an open prison, and a suspected terrorist under a control order. Consequently, it was viewed as an anomaly for the Home Secretary to enforce harsher conditions on an individual who has not been convicted of any crime, in comparison with an open prisoner who enjoys freedom of association. The court brought up the example of the detainee being in a "prison with three walls", the 4th wall of course being that of voluntary deportation, which is a derogation from Art 5 under Art 5(1)(g) of the ECHR (detention with a view to deport is compatible). However, in reality, such a decision is highly unlikely, as the detainee would be unwilling to return home and be subjected to torture and/or inhuman/degrading treatment
Kingdom and the United States would be well advised to adopt a criminal justice approach as the core response to terrorism rather than resorting to exceptional or extraordinary measures. A criminal justice response carries the important moral platform of legitimacy and fairness, whilst also offering a practical response to danger. Expedients such as control orders may be
acceptable in extremis by providing short-term abeyances from criminal justice but should not be adopted as long-term solutions to troublesome friends or foes.'
(Walker, C., 'Keeping control of terrorists without losing control of constitutionalism' (2007) 59 Stanford Law Review 1395-1463).
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
, intended to deal with the Law Lords' ruling of 16 December 2004 that the detention without trial of eight foreigners (known as the 'Belmarsh 8') at HM Prison
Her Majesty's Prison Service
Her Majesty's Prison Service is a part of the National Offender Management Service of the Government of the United Kingdom tasked with managing most of the prisons within England and Wales...
Belmarsh
Belmarsh (HM Prison)
HM Prison Belmarsh is a Category A men's prison, located in the Thamesmead area of the London Borough of Greenwich, in south-east London, England. Belmarsh Prison is operated by Her Majesty's Prison Service...
under Part 4 of the Anti-terrorism, Crime and Security Act 2001
Anti-terrorism, Crime and Security Act 2001
The Anti-Terrorism, Crime and Security Act 2001 was formally introduced into the Parliament of the United Kingdom on 19 November 2001, two months after the terrorist attacks on New York on 11 September. It received royal assent and came into force on 14 December 2001...
was unlawful, being incompatible with European
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
(and, thus, domestic) human rights laws.
The Act allows the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
to impose "control order
Control order
A control order is an order made by the Home Secretary of the United Kingdom to restrict an individual's liberty for the purpose of "protecting members of the public from a risk of terrorism". Its definition and power were provided by Parliament in the Prevention of Terrorism Act 2005...
s" on people who are suspected of involvement in terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
, which in some cases may derogate (opt out) from human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
laws. As of yet, no derogating control orders have been obtained under s.4 of the relevant Act.
In April 2006, a High Court judge issued a declaration that section 3 of the Act was incompatible with the right to a fair trial under article 6 of the European Convention on Human Rights. The system of control orders was described by Jeremy Sullivan
Jeremy Sullivan
Sir Jeremy Mirth Sullivan PC has been a Lord Justice of Appeal since 2009.He was educated at Framlingham College and King's College London and was called to the Bar at Inner Temple in 1968 where he became a bencher in 1993.By 1976 Sullivan was Counsel for the Department of Environment's M25...
as an 'affront to justice'. The Act stands to be repealed by the Terrorism Prevention and Investigation Measures Bill 2011.
Background
Despite having passed permanent counter-terrorism legislation only a year earlier, in the shape of the Terrorism Act 2000Terrorism Act 2000
The Terrorism Act 2000 is the first of a number of general Terrorism Acts passed by the Parliament of the United Kingdom. It superseded and repealed the Prevention of Terrorism Act 1989 and the Northern Ireland Act 1996...
, the British government's response to the September 11, 2001 attacks
September 11, 2001 attacks
The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...
was to rush through emergency legislation to increase powers to deal with individuals suspected of planning or assisting terrorist attacks within the UK.
A key feature of the Anti-terrorism, Crime and Security Act 2001
Anti-terrorism, Crime and Security Act 2001
The Anti-Terrorism, Crime and Security Act 2001 was formally introduced into the Parliament of the United Kingdom on 19 November 2001, two months after the terrorist attacks on New York on 11 September. It received royal assent and came into force on 14 December 2001...
was that resident foreigners suspected of terrorism could be interned without trial, if they could not be deported to another country without breaching British human rights legislation (for example, if they might be subject to torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
or the death penalty in their native country). Several individuals were interned, mainly in Belmarsh prison, under these powers; they were free to leave, but only if they left the country, which some did.
The Government claims that it has evidence against these individuals that is inadmissible in court — or unusable in open court due to security concerns — and is reluctant to allow this evidence to be used. However, the House of Lords ruled that the internment
Internment
Internment is the imprisonment or confinement of people, commonly in large groups, without trial. The Oxford English Dictionary gives the meaning as: "The action of 'interning'; confinement within the limits of a country or place." Most modern usage is about individuals, and there is a distinction...
of these people, without trial, was contrary to the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
, mainly because the powers only extended to foreign nationals; the new act allows control orders to be issued against British citizens as well as foreign nationals. This Act remedied the discriminatory nature of the previous provisions.
First stages
The Bill was introduced in the House of CommonsBritish House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
on 22 February 2005 and allows the Home Secretary to make "control orders" for people he suspects of involvement in terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
, including placing them under house arrest
House arrest
In justice and law, house arrest is a measure by which a person is confined by the authorities to his or her residence. Travel is usually restricted, if allowed at all...
, restricting their access to mobile telephones and the internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
and requiring that visitors be named in advance, so that they may be vetted by MI5
MI5
The Security Service, commonly known as MI5 , is the United Kingdom's internal counter-intelligence and security agency and is part of its core intelligence machinery alongside the Secret Intelligence Service focused on foreign threats, Government Communications Headquarters and the Defence...
.
The Bill passed the Commons, despite a substantial rebellion by backbench Labour
Labour Party (UK)
The Labour Party is a centre-left democratic socialist party in the United Kingdom. It surpassed the Liberal Party in general elections during the early 1920s, forming minority governments under Ramsay MacDonald in 1924 and 1929-1931. The party was in a wartime coalition from 1940 to 1945, after...
Members of Parliament
Member of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
(MPs), and was sent to the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, which made several amendments, the most significant being the introduction of a sunset clause, so the Act would automatically expire in March 2006, unless it were renewed by further legislation, much like the Prevention of Terrorism Acts
Prevention of Terrorism Act (Northern Ireland)
The Prevention of Terrorism Acts were a series of Acts of the Parliament of the United Kingdom from 1974 to 1989 that conferred emergency powers upon police forces where they suspected terrorism....
of 1974–1989.
Other amendments included requiring the Director of Public Prosecutions
Director of Public Prosecutions
The Director of Public Prosecutions is the officer charged with the prosecution of criminal offences in several criminal jurisdictions around the world...
to make a statement that a prosecution would be impossible before each individual control order could be issued, to require a judge to authorise each control order, requiring a review of the legislation by Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
lors and restoring the "normal" burden of proof ("beyond a reasonable doubt"), rather than the weaker "balance of probabilities".
The vote in the Lords was notable for being the first time Lord Irvine, friend and mentor of Tony Blair
Tony Blair
Anthony Charles Lynton Blair is a former British Labour Party politician who served as the Prime Minister of the United Kingdom from 2 May 1997 to 27 June 2007. He was the Member of Parliament for Sedgefield from 1983 to 2007 and Leader of the Labour Party from 1994 to 2007...
and recent Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, ever voted against the Labour
Labour Party (UK)
The Labour Party is a centre-left democratic socialist party in the United Kingdom. It surpassed the Liberal Party in general elections during the early 1920s, forming minority governments under Ramsay MacDonald in 1924 and 1929-1931. The party was in a wartime coalition from 1940 to 1945, after...
government.
Constitutional crisis
The Commons considered the Lords' amendments on 10 March and rejected most of them. The Bill was exchanged between the two chambers several more times that parliamentary day, which extended well into 11 March and led to the longest sitting of the House of Lords in its history, of over 30 hours. (Parliamentary custom dictates that the parliamentary day continues until the House is adjourned. Therefore although it was midnight March 11 outside the House of Commons, inside it was still March 10.)That the Bill was "ping-ponged
Parliamentary ping-pong
Parliamentary ping-pong is a phrase used to describe a phenomenon in the Parliament of the United Kingdom, in which legislation appears to rapidly bounce back and forth between the two chambers like a ping-pong ball bounces between the players in a game of table tennis.- Procedure :The British...
" between both houses was evidence of an unusual constitutional crisis
Constitutional crisis
A constitutional crisis is a situation that the legal system's constitution or other basic principles of operation appear unable to resolve; it often results in a breakdown in the orderly operation of government...
, notable because the urgency of the legislation — the previous powers to detain the individuals in HMP Belmarsh and elsewhere were due to expire on 14 March 2005 — meant that the Parliament Acts 1911 and 1949
Parliament Acts 1911 and 1949
The Parliament Acts 1911 and 1949 are two Acts of the Parliament of the United Kingdom, which form part of the constitution of the United Kingdom. Section 2 of the Parliament Act 1949 provides that that Act and the Parliament Act 1911 are to be construed as one.The Parliament Act 1911 The...
, the usual device to handle situations where the Commons and Lords cannot agree on a measure, could not be invoked in order to acquire Royal Assent without the consent of the upper house.
Compromise
Eventually, a compromise was agreed, with both sides claiming victory: the opposition parties conceded all their amendments for the promise of a review of the legislation a year later. The Bill received Royal Assent later that day, and the first control orders, to deal with the ten suspects previously interned in HMP Belmarsh, were issued by Charles ClarkeCharles Clarke
Charles Rodway Clarke is a British Labour Party politician, who was the Member of Parliament for Norwich South from 1997 until 2010, and served as Home Secretary from December 2004 until May 2006.-Early life:...
, the Home Secretary, immediately.
Some critics were still unhappy with the compromise reached in the evening of 11 March, pointing out that an Act that removes the 790-year-old principle of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
, codified in Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, should not have been rushed through Parliament in the first place and that a review leaves it to the opposition to defeat the legislation, unlike a sunset clause, which would require the government to prove that these extraordinary powers were still a necessary and proportionate response to the threat of terrorism in the UK; comparisons were made with the detention provisions of South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
's apartheid-era Terrorism Act No 83 of 1967
Terrorism Act No 83 of 1967
The Terrorism Act No 83 of 1967 was a law of the South African Apartheid regime until all except section 7 was repealed under the Internal Security and Intimidation Amendment Act 138 of 1991.-Detention without trial:...
.
Few critics claimed that the terrorist threat was not real, merely that these powers were not the best way to address that threat, that arbitrary powers are more likely to lead to a miscarriage of justice
Miscarriage of justice
A miscarriage of justice primarily is the conviction and punishment of a person for a crime they did not commit. The term can also apply to errors in the other direction—"errors of impunity", and to civil cases. Most criminal justice systems have some means to overturn, or "quash", a wrongful...
and that prosecution in a court of law would be a better solution. The most commonly-presented counter-argument was that protecting British citizens' freedom to live and go about their lives without fear of terrorism is more important than the civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
of suspected terrorists.
Restrictions permitted by the Act
Control orders may contain restrictions that the Home Secretary or a court "considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity", including:- restrictions on the possession of specified articles or substances (such as a mobile telephone);
- restrictions on the use of specified services or facilities (such as internet access);
- restrictions on work and business arrangements;
- restrictions on association or communication with other individuals, specified or generally;
- restrictions on where an individual may reside and who may be admitted to that place;
- a requirement to admit specified individuals to certain locations and to allow such places to be searched and items to be removed therefrom;
- a prohibition on an individual being in specified location(s) at specified times or days;
- restrictions to an individual's freedom of movement, including giving prior notice of proposed movements;
- a requirement to surrender the individual's passportPassportA passport is a document, issued by a national government, which certifies, for the purpose of international travel, the identity and nationality of its holder. The elements of identity are name, date of birth, sex, and place of birth....
; - a requirement to allow the individual to be photographPhotographA photograph is an image created by light falling on a light-sensitive surface, usually photographic film or an electronic imager such as a CCD or a CMOS chip. Most photographs are created using a camera, which uses a lens to focus the scene's visible wavelengths of light into a reproduction of...
ed; - a requirement to cooperate with surveillanceSurveillanceSurveillance is the monitoring of the behavior, activities, or other changing information, usually of people. It is sometimes done in a surreptitious manner...
of the individual's movements or communications, including electronic taggingElectronic taggingElectronic tagging is a form of non-surreptitious surveillance consisting of an electronic device attached to a person or vehicle, especially certain criminals, allowing their whereabouts to be monitored. In general, devices locate themselves using GPS and report their position back to a control...
; - a requirement to report to a specified person and specified times and places.
Opposition to the Act
Measures in the Act were opposed by a number of human rights organisations, including Amnesty InternationalAmnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
, Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
, JUSTICE
JUSTICE
JUSTICE is a human rights and law reform organisation based in the United Kingdom. It is the British section of the International Commission of Jurists, the international human rights organisation of lawyers devoted to the legal protection of human rights worldwide...
and Liberty
Liberty (pressure group)
Liberty is a pressure group based in the United Kingdom. Its formal name is the National Council for Civil Liberties . Founded in 1934 by Ronald Kidd and Sylvia Crowther-Smith , the group campaigns to protect civil liberties and promote human rights...
. Criticism of the Act included complaints about the range of restrictions that could be imposed, the use of closed proceedings and special advocates to hear secret evidence against the detainee, and the possibility that evidence against detainees may include evidence obtained in other countries by torture.
Renewal
Due to the extremely swift passage of the Act through Parliament (18 days between introduction and Royal Assent), the Home Secretary Charles Clarke had agreed to table legislation in Spring 2006 in order to allow Parliament to consider amendments to the Act following the first report of the Independent Reviewer, Lord Carlile of Berriew QC.Lord Carlile reported on 2 February but the Home Secretary announced that he would not be introducing fresh legislation, given that the Terrorism Bill was already under consideration. Instead, the government indicated that it would allow amendment to the Act in consolidating counter-terrorism legislation scheduled for 2007.
In any event, sections 1-9 of the Act are subject to annual renewal by affirmative resolution of both Houses of Parliament. The measures were renewed in 2007 following votes of the Commons (22 February 2007) and the Lords (5 March 2007).
the Prevention of Terrorism Act 2005 is still active, following renewal on 11 March 2009.
Incompatibility with human rights
In April 2006, in his judgment in the case of Re MB, Mr Justice SullivanJeremy Sullivan
Sir Jeremy Mirth Sullivan PC has been a Lord Justice of Appeal since 2009.He was educated at Framlingham College and King's College London and was called to the Bar at Inner Temple in 1968 where he became a bencher in 1993.By 1976 Sullivan was Counsel for the Department of Environment's M25...
issued a declaration under section 4 of the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
that section 3 of the Prevention of Terrorism Act 2005 was incompatible with the right to fair proceedings under article 6 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
. Mr Justice Sullivan held:
"To say that the Act does not give the respondent in this case, against whom a non-derogating control order has been made by the Secretary of State, a fair hearing in the determination of his rights under Article 6 of the Convention would be an understatement. The court would be failing in its duty under the 1998 Act, a duty imposed upon the court by Parliament, if it did not say, loud and clear, that the procedure under the Act whereby the court merely reviews the lawfulness of the Secretary of State's decision to make the order upon the basis of the material available to him at that earlier stage are conspicuously unfair. The thin veneer of legality which is sought to be applied by section 3 of the Act cannot disguise the reality. That controlees' rights under the Convention are being determined not by an independent court in compliance with Article 6.1, but by executive decision-making, untrammelled by any prospect of effective judicial supervision."
However, on 1 August 2006, the Court of Appeal reversed this judgement (in part). They agreed that MB's Article 5 rights had been breached, but said that it did not infringe on his Article 6 rights. (Secretary of State for the Home Department v. MB [2006] EWCA Civ 1140).
On the point of particular Convention rights being breached, it is interesting to note the distinction the court made in the above case. Indeed, following Secretary of State for the Home Department v JJ the House of Lords held that the restrictions imposed within the control would be open to challenge on the basis of incompatibility, with focus on Art 8 (right to privacy and family life), Art 10 (freedom of speech) and Art 11 (freedom of assembly). In the case of JJ, the House of Lords drew an analogy between a prisoner in an open prison, and a suspected terrorist under a control order. Consequently, it was viewed as an anomaly for the Home Secretary to enforce harsher conditions on an individual who has not been convicted of any crime, in comparison with an open prisoner who enjoys freedom of association. The court brought up the example of the detainee being in a "prison with three walls", the 4th wall of course being that of voluntary deportation, which is a derogation from Art 5 under Art 5(1)(g) of the ECHR (detention with a view to deport is compatible). However, in reality, such a decision is highly unlikely, as the detainee would be unwilling to return home and be subjected to torture and/or inhuman/degrading treatment
Conclusion
'In view of these inherent qualms about measures of “control,” societies such as the UnitedKingdom and the United States would be well advised to adopt a criminal justice approach as the core response to terrorism rather than resorting to exceptional or extraordinary measures. A criminal justice response carries the important moral platform of legitimacy and fairness, whilst also offering a practical response to danger. Expedients such as control orders may be
acceptable in extremis by providing short-term abeyances from criminal justice but should not be adopted as long-term solutions to troublesome friends or foes.'
(Walker, C., 'Keeping control of terrorists without losing control of constitutionalism' (2007) 59 Stanford Law Review 1395-1463).
The Act, the Bill for the Act and the explanatory notes to the Act
- The initial text of the Bill, from 22 February 2005 (PDFPortable Document FormatPortable Document Format is an open standard for document exchange. This file format, created by Adobe Systems in 1993, is used for representing documents in a manner independent of application software, hardware, and operating systems....
) - Explanatory notes to the Prevention of Terrorism Act 2005.
Government and Parliamentary reports and debates
- Home Office page about the Act
- Home Office page about the "Part IV powers" the Act replaces
- Report on Part IV powers by Lord Carlile of BerriewAlex Carlile, Baron Carlile of BerriewAlexander Charles Carlile, Baron Carlile of Berriew, QC is a Liberal Democrat member of the House of Lords.-Early life and career:...
, QCQueen's CounselQueen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
(PDF) - Parliamentary Joint Committee on Human Rights' report on the Bill, dated 23 February 2005
- Labour party briefing on the Bill, dated 22 February 2005 and leaked to CryptomeCryptomeCryptome is a website hosted in the United States since 1996 by independent scholars and architects John Young and Deborah Natsios that functions as a repository for information about freedom of speech, cryptography, spying, and surveillance...
- First Commons debate after the Lords' Third Reading, 10 March 2005
- Second Commons debate after the Lords' Third Reading, 11 March 2005 (after midnight, but still in the 10 March Parliamentary session)
- Third Commons debate after the Lords' Third Reading, 11 March 2005 (daytime on 11 March, but still in the 10 March Parliamentary session)
- Backbench rebellion in the final Commons vote
- Home office review of the Act in 2006
News reportage
- BBC News article on the Law Lords' ruling, 16 December 2004
- BBC article reporting the passage of the Act, 11 March 2005
- BBC article explaining the controversy, 12 March 2005
- The Guardian article on the Parliamentary "ping-pong", 12 March 2005
- Islamic Human Rights Commission - Britain: An Outpost of Tyranny
- Jean-Claude Paye, The End Of Habeas Corpus in Great Britain. Monthly ReviewMonthly ReviewMonthly Review is an independent Marxist journal published 11 times per year in New York City.-History:The publication was founded by Harvard University economics instructor Paul Sweezy, who became the first editor...
, November 2005.
Opposition groups
- Joint briefing paper to House of Lords from JUSTICEJUSTICEJUSTICE is a human rights and law reform organisation based in the United Kingdom. It is the British section of the International Commission of Jurists, the international human rights organisation of lawyers devoted to the legal protection of human rights worldwide...
and the International Commission of JuristsInternational Commission of JuristsThe International Commission of Jurists is an international human rights non-governmental organization. The Commission itself is a standing group of 60 eminent jurists , including members of the senior judiciary in Australia, Canada, and South Africa and the former UN High Commissioner for Human...
. (PDF) - Briefing paper to the House of Lords from LibertyLiberty (pressure group)Liberty is a pressure group based in the United Kingdom. Its formal name is the National Council for Civil Liberties . Founded in 1934 by Ronald Kidd and Sylvia Crowther-Smith , the group campaigns to protect civil liberties and promote human rights...
(PDF) - Amnesty International press release, dated February 28, 2005
- Human Rights Watch commentary, dated 1 March 2005