House of Lords on ATC&S

There are lots of interesting snippets in the judgement from the House of Lords on the anti-terrorism legislation I mentioned earlier today.

Lord Bingham quotes the EU's Commissioner for Human Rights comments on the Anti-Terrorism Crime and Security Act, Opinion 1/2002 (28 August 2002):

"36. The proportionality of the derogating measures is further brought into question by the definition of international terrorist organisations provided by section 21(3) of the Act. The section would appear to permit the indefinite detention of an individual suspected of having links with an international terrorist organisation irrespective of its presenting a direct threat to public security in the United Kingdom and perhaps, therefore, of no relation to the emergency originally requiring the legislation under which his Convention rights may be prejudiced.

37. Another anomaly arises in so far as an individual detained on suspicion of links with international terrorist organisations must be released and deported to a safe receiving country should one become available. If the suspicion is well founded, and the terrorist organisation a genuine threat to UK security, such individuals will remain, subject to possible controls by the receiving state, at liberty to plan and pursue, albeit at some distance from the United Kingdom, activity potentially prejudicial to its public security.

38. It would appear, therefore, that the derogating measures of the Anti-Terrorism, Crime and Security Act allow both for the detention of those presenting no direct threat to the United Kingdom and for the release of those of whom it is alleged that they do. Such a paradoxical conclusion is hard to reconcile with the strict exigencies of the situation."

The Newton committee which reviewed the Act raised similar concerns and recommended the section dealing with indefinite detention of foreign terrorist suspects be replaced:

" We consider the shortcomings described above to be sufficiently serious to strongly recommend that the Part 4 powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency. New legislation should:

a. deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators; and

b. not require a derogation from the European Convention on Human Rights."

Lord Bingham may have been quietly irritated by the government's (a favorite of David Blunkett) tactic of criticising anyone who disagreed with them as not having the appropriate standing/authority or just belonging to a group that could be appropriately pejoratively labelled. After going through some neat legal reasoning on proportionality and accepting the government and parliament's remit to make political decisions he comes out with the following:

"The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic." And...

"the central complaint made by the appellants: that the choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem (by allowing non-UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if reasonably suspected of having links with Al-Qaeda, may harbour no hostile intentions towards the United Kingdom. The conclusion that the Order and section 23 are, in Convention terms, disproportionate is in my opinion irresistible."

Which inevitably brings me back to my current hobby horse of ID cards and inspired by Lord Bingham - the choice of ID cards to address a security [or immigration or social cohesion or etc etc] problem(/s) will have the inevitable result of failing adequately to address that(/those) problem(/s).

He concludes his judgement at paragraph 73 thus:

"I would allow the appeals. There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001. There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status. The Secretary of State must pay the appellants' costs in the House and below."