anti-terrorism, crime and security act 2001, part...
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ANTI-TERRORISM, CRIME AND SECURITY ACT 2001, PART IV
SECTION 28 REVIEW
I THE REVIEW PROCESS
1.1 Pursuant to section 28 of the Anti-Terrorism, Crime and
Security Act 2001 [ACSA2001] the Secretary of State is required
to appoint a person to review the operation of sections 21 to 23.
Part IV of ACSA2001, which includes sections 21 to 23, can be
found in the Annex to this report. Those are the sections
providing the Home Secretary with the power to certify that a
resident alien is a suspected international terrorist, and to order
the detention of that person if he cannot be expelled in the
normal way (for example, because removal would expose him to
inhuman or degrading treatment).
1.2 I was appointed as the section 28 reviewer on the coming into
law of the Act. The section provides for this, the first review, to
be completed not later than the expiry of 14 months beginning
with the day on which the Act was passed, with subsequent
reviews not later than one month before the end of any
extension period permitted in respect of sections 21 to 23 by
section 29(2) following an affirmative resolution by each House
of Parliament1. The Act received the Royal Assent on the 14th
December 2001.
1 Section 29(3)
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1.3 I am also the reviewer of the Terrorism Act 2000, and prepare
reports annually on, respectively, the working of that Act as a
whole and the working of Part VII (which contains temporary
and renewable provisions relating to Northern Ireland). That
work has given me valuable knowledge of the many issues
facing government and law enforcement agencies and arising
from the activities of terrorist individuals and groups. The
experience gained has fortified in me the importance of ensuring
so far as is possible that the prevention of domestic and
international terrorism is achieved without compromising
unacceptably the rights and freedoms of individuals.
1.4 Mine is not the only reviewing process in relation to ACSA2001.
By section 122 a committee of at least 7 Members of the Privy
Council was to be appointed “to conduct a review of this Act”2.
That committee is meeting under the chairmanship of Lord
Newton of Braintree, and will complete its review within 2 years
of the coming into force of the Act3. The Privy Council
Committee’s review is envisaged in the Act as a single event, as
compared with my duty to report during each period of validity
of sections 21 to 23, which can be extended for individual
periods not exceeding one year at a time. I have met the
2 Section 122(1) 3 Section 122(4)
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Committee and have an open dialogue with them: we have
discussed our respective roles in an effort to ensure that all
necessary issues are covered in an appropriately evidential and
considered way.
1.5 Likewise, I have had contact with the chairman of the Joint
Committee on Human Rights, Jean Corston M.P., and the
Committee Clerk, and similarly discussed our respective roles.
ACSA2001 is but one of many statutes falling for the Joint
Committee’s consideration. In fact they have devoted
considerable specific attention to it4. In their second report5
they focused upon the human rights aspects of what was then
the Bill, and concluded that there were risks of arbitrariness
and discrimination inherent in sections 21 to 23. In their fifth
report6 they decided to review the working of the Act in relation
to the protection of human rights before the first renewal order
and consider whether its further continuation appears
appropriate in relation to those concerns.
4 See the Committee’s Second Report, Session 2001-2, HL Paper 37/HC372; and Fifth Report 2001-2, HL Paper 51/HC420 5 Paragraphs 31-52 6 Paragraph 20
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II CRITICISM OF THE REVIEW PROCESS
2.1 In the process of preparing this review I have received some
trenchant criticism of the review process, and consider it
right to summarise at least part. The eminent author and
commentator on the law relating to terrorism Professor Clive
Walker, of Leeds University, is critical of what he has
described as “[review] measures spread across two pieces of
legislation and inconsistent timetables and forms of review”7.
He describes the various systems of review as “perhaps most
confusing of all”. He recommends that the reviews should be
made consistent in format, take due account of each other,
and be placed in one website together with the statistical
information relied upon. I agree with him as to the second
and third of these points; considerable consultation has
already occurred. As to the first, I suspect that some
diversity of approach by very differently constituted reviews
with varied responsibilities may add to the prospect of
problems being identified and highlighted: uniformity of
format could prove formulaic and less revealing. In this view
I am supported by others, including the renowned expert on
7 The material referred to is extracted from evidence submitted to the Privy Council Committee and made available to me
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international conflict and terrorism Professor Paul
Wilkinson8
2.2 Professor Walker recommends too that reviews should be
transferred to an independent standing committee
established for the purpose. This is an idea that, though it
might involve an extra layer of bureaucracy, might have its
time if there were to be gathering momentum of legislation
departing from ECHR provisions. However, it would raise the
risk of further legitimising this hitherto relatively unusual
type of legislation by reference to an established standing
committee.
2.3 It is not part of my responsibility under section 28 to give a
judgment of the effectiveness of the review process. However,
what I can say is that I have not been inhibited in any way in
carrying out the review, either by restraint on my own part
or hindrance on the part of officials or government.
2.4 I have been given access to Ministers and officials at senior
level. I have been able to meet detainees privately and
without restraint of time. I have been shown as much closed
information as I requested.
8 Of St Andrews University. Professor Wilkinson too has provided evidence to the Privy Council Committee. We met to discuss a number of issues relevant to this report.
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2.5 The process of my review was kick-started by a lengthy
telephone conversation with one of the solicitors acting for
detainees, in which I was told of concerns about the whole
procedure under sections 21 to 23, as well as particular
problems facing them within the prison system.
2.6 For reasons of public interest and confidentiality I have
decided that it is not appropriate to include as part of this
report a list of the persons with whom I have held
discussions. Anybody who wishes to contribute to this review
process is very welcome to do so either by writing to me (at
The House of Lords, London SW1A 0PW) or by email
([email protected]). I have interspersed my ACSA2001
reviewing activities with my work on the Terrorism Act 2000,
and as a result have seen ACSA as part of a bigger picture.
Whilst my work as reviewer is a part-time activity, I consider
that I have been able to spend a sufficient number of days on
it to gain an informed view.
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III DEROGATION: THE POWERS UNDER SECTIONS 21 TO 23.
3.1 The measures in sections 21 to 23 are designed to address the
government’s concern about the inability to try suspected
international terrorists because of one or more of (i) insufficient
admissible evidence (as opposed to intelligence), (ii) the difficulty of
putting sensitive intelligence before a criminal court, and (iii)
international treaty obligations affecting the possibility of
deportation in particular cases. The power to detain given under
section 23 involved derogation9 from the right of liberty contained
in Article 5(1) of the European Convention for the Protection of
Human Rights and Fundamental Freedoms [ECHR]. The Joint
Committee on Human Rights was not persuaded that the
conditions for derogation from the ECHR had been met. This is an
issue subject to litigation at the time of writing. The Special
Immigration Appeals Commission held the derogation to be
unlawful, on the basis that it was incompatible with articles 5 and
14 of the ECHR. That decision was reversed on appeal brought by
persons detained under section 2310. The Court of Appeal
concluded that there was ample material to justify the derogation
and the statutory provisions created in the context of the
9 Human Rights Act 1998 (Designated Derogation) Order 2001 10 A and ors v Secretary of State for the Home Department [2002] EWCA Civ 1502 C.A.
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derogation. The Court of Appeal’s decision is now subject to a
petition to the House of Lords for leave to appeal.
3.2 The merits, content and method of the derogation from the ECHR
are not part of my responsibility as reviewer of the operation of
sections 21 to 23, under section 28.
3.3 ACSA2001 was introduced in response to the events of September
11th 2001. As the government has put it:
“The purpose of the Act is to build on legislation in a number
of areas to ensure that the Government, in the light of the new
situation arising from the September 11 terrorist attacks on
New York and Washington, have the necessary powers to
counter the threat to the UK.”11
3.4 As a result of that threat, the powers given to the Home Secretary
are wide in their scope and have a significant impact on a
particular group of the resident community. The members of that
group are all persons who do not hold British nationality. Some
police have expressed misgivings about a law that in practice has
applied only to Muslims (because all those currently detained
happen to be Muslims): there is a sense that it causes real
resentment among parts of the Muslim community who are both
residents and nationals of the United Kingdom, and possibly
makes some aspects of policing more difficult. Against that one
11 Explanatory Notes to the Act, The Stationery Office, 2002
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must place the paramountcy of public safety, and that it is the
government for the time being that is held to account if terrorist
attacks are the result of inadequate public protection. One could
not sensibly claim that the balance is easy or the solutions clear.
3.5 It should be noted that, by section 29(7), sections 21-23 shall
cease to have effect at the end of the 10th November 2006. New
primary legislation would be required if identical or similar powers
were to continue after that date.
3.6 Review of the operation of sections 21 to 23 necessarily involves
some examination of the work of the Special Immigration Appeals
Commission [SIAC], which by section 26 is given jurisdiction for
appeals against certification under section 21, and by section 27
the duty to review each certification irrespective of appeal. In order
to deal with SIAC issues I have held discussions with persons
involved in the SIAC process, and have considered SIAC’s
procedural rules. I have not been able to attend a SIAC hearing of a
substantive review or appeal under ACSA2001 because, as yet,
none has taken place. I have been told that there have been no
substantive hearings pending the final determination of the
challenge to derogation described above. However if, as is possible,
the derogation case moves from the House of Lords to the
European Court of Human Rights, that could delay a final decision
by many months. Delaying substantive hearings to await the
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Strasbourg court would be hard to justify. Whilst in each case
adjournments are a matter for the Commission, it is expected and
seems reasonable that SIAC should begin its substantive hearings
soon. During the period before my next review I shall attend some
substantive SIAC hearings, in order to be able to comment in an
informed way on the procedure and the consideration of cases.
3.7 Below I deal with each part of the powers in turn. They can be
summarised as:
Section 21 Definition of terrorism and terrorist; certification
and notification; appeal and review
Section 22 Actions in connection with deportation and
removal made statutorily available against certified persons
despite the fact that for various reasons they cannot in
practice be removed from the United Kingdom.
Section 23 Detention of certified persons without charge.
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IV SECTION 21
4.1 What is a suspected terrorist? The section empowers (but does
not oblige) the Secretary of State to issue a certificate if he:
“reasonably –
(a) believes that the person’s presence in the United
Kingdom is a risk to national security, and
(b) suspects that the person is a terrorist”12
It is therefore a pre-requisite for certification that the person
should be a terrorist.
4.2 Section 21(2)(a) and (b) define a terrorist by reference to various
acts and allegiances, all directly connected with the actions of what
is called “an international terrorist group”. Such a group is defined
by reference to section 1 of the Terrorism Act 2000. In my view no
serious difficulties are caused by the definitions so far described.
4.3 Section 21(2)(c) does cause some difficulty. It includes in the
definition of “terrorist” a person who –
“has links with an international terrorist group”.
4.4 Section 21(2)(c) is softened by section 21(4), which provides –
“For the purposes of subsection (2)(c) a person has links with
an international terrorist organisation only if he supports or
assists it”.
12 Section 21(1)
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4.5 Several examples have been given to me of the breadth of the
“links” provision. Probably the most obvious example is that of the
wife of an international terrorist, who may work at home looking
after her husband’s domestic arrangements. It is said that, even if
all she knows is that her husband is a member of an international
terrorist group, and even if she provides nothing beyond the
domestic arrangements, she would fall foul of section 23 so as to
be subject to certification herself.
4.6 In the debates on the Bill some reassurance was given on the issue
of links13. The presence of the word ‘it’ in section 21(4) is helpful in
this regard. The court always construes a provision affecting the
liberty of the subject in a way as consistent with continuing liberty
as possible: more than mere social or professional association
would have to be demonstrated before certification could be
justified under the section. The wife in the example given would
probably be outside the scope of ‘links’ in the context of the
section. Nevertheless the use of the word ‘links’ gives rise to
understandable concern. It is unclear to me that there would be
any detriment in terms of public safety if that word and indeed
section 23(4) were removed from the Act and section 23(2)(c)
amended to read –
13 Lord Rooker, a Home Office Minister, colourfully accepted at HL Debs col. 502 29th November 2001 that Osama Bin Laden’s distant family relatives, about ten times removed, do not have a sufficient ‘link’
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“(c) otherwise supports or assists an international terrorist
group”
Whilst this change would not alter the substance of the law, and
might even be open to criticism as being of symbolic value only, in
my view it would be seen as consistent with an effort to maintain
clear definitive standards. I suggest that such a change be
considered.
4.7 It is to be noted that ‘an international terrorist group’ is not defined
by reference to those groups proscribed under the Terrorism Act
2000. Justification for this difference was offered during the
passage of the Bill14, but has been subject to criticism.
4.8 The quality of the certifications made. As part of my review I
have attempted to replicate the exercise carried out by the Home
Secretary. In relation to each certified and detained person I was
shown the material (including closed material) placed before him,
and I was therefore able to assess for myself whether each person
concerned fell within the section 23(1) criteria. In every case I was
entirely satisfied that the criteria were met, and would have been
very surprised if certification had not taken place.
4.9 Whilst in each of the cases it was clear to me that the person was
properly suspected on strong grounds of being a member of,
14 For example, by the Home Secretary The Rt Hon David Blunkett M.P. at HC Debs col 379 21st November 2001
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supporter or assisting an international terrorist group, I was far
less certain that one could be precise as to their exact group
affiliation.
4.10 From the material I have seen, it is a certainty that there remain in
the United Kingdom individuals and groups who pose a present
and real threat to the safety of the public here and abroad. Some
are UK citizens, and therefore outside sections 21 to 23: this is at
the core of the discrimination argument presented in the
derogation challenge. The public safety context includes evidence
that it may be difficult to predict likely targets of terrorist attacks,
as the bombing of a nightclub full of holidaymakers in Bali
showed. In the extremely dangerous context in which anti-
terrorism legislation is now working, I accept that public protection
must be quite flexible against international terrorists who often
work in small ‘cells’, are frequently difficult to categorise as part of
any particular known groups, and are part of an international
terrorist picture in which new groups can appear suddenly. The
issues underlying a proscription decision may be different from
those in a certification under section 21.
4.11 Subject to the comments above on the word ‘links’, I consider that
sections 21(1) to (5) operate satisfactorily and fairly, having regard
to the context.
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4.12 Procedural difficulties under sections 21 and 26. Section 21 (6)
provides: -
“(6) Where the Secretary of State issues a certificate under
subsection (1) he shall as soon as is reasonably practicable—
(a) take reasonable steps to notify the person concerned, and
(b) send a copy of the certificate to the Special Immigration
Appeals Commission.”
4.13 Difficulty has arisen in one case in which the Secretary of State
issued a certificate in respect of a suspected international terrorist
whose whereabouts were at the time unknown. The certificate was
issued in December 2001, but SIAC did not receive a copy until
October 2002, and without evidence being provided that the
Secretary of State had complied with section 21(6)(a), something
that unsurprisingly SIAC was not prepared to take for granted. The
difficulty is caused by section 25(5), which provides: -
“(5) An appeal against certification may be commenced only— (a) within the period of three months beginning with the date
on which the certificate is issued, or
(b) with the leave of the Commission, after the end of that period but before the commencement of the first review under section 26”.
and by section 26(1), which provides –
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“26 Certification: review
(1) The Special Immigration Appeals Commission must
hold a first review of each certificate issued under
section 21 as soon as is reasonably practicable
after the expiry of the period of six months
beginning with the date on which the certificate is
issued”.
4.14 Remedies on a successful review are less satisfactory than on an
appeal15. In any event, an appellant is able to take a more active
part in an appeal than would be the case on a review which, if he
has not been found, might have to be held in his absence and in
ignorance of whether he is maintaining a defence. Whilst someone
who is deliberately evading service should expect no special
consideration, section 21(6) may be complied with but the person
certified may simply not be found without deliberately avoiding the
authorities. The suggestion has been made to me that section
25(5)(b) be amended either by omitting the words from ‘but’ to
‘section 26’, or by making clear that SIAC has a discretion even if a
first review has commenced.
4.15 The response of senior Home Office officials to this has been that
the case referred to concerned a person against whom a certificate
15 See sections 25(2) and (4); and sections 26(5) and (6)
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was issued but who has not been located since. As a result of a
mistake SIAC was not served with a copy of the certificate: the
Home Office accepts that this should have been served, and has
now complied. They have told me that it was not foreseen that the
factual situation that arose in the case under discussion would
occur, and that it was envisaged that a person would always have
an opportunity for an appeal before the first review commenced. It
is accepted that the legislation might have been framed differently
if this situation had been foreseen at the time the Bill was enacted.
4.16 The Home Office has suggested that the legislation need not be
amended to take into account this problem. In the particular case
in question, the certificate was revoked recently by the Secretary of
State so as to avoid the possibility of the review commencing and
no appeal being possible thereafter. Once a certificate has been
revoked for whatever reason, there is nothing to stop a fresh
certificate being issued if the situation changes. It has been
indicated to me that if this type of situation recurred it is likely
that the certificate would be revoked once it had become clear that
the certified person was not going to be arrested and detained in
the immediate future. This would avoid the recurrence of the
problem faced by SIAC.
4.17 Whilst an amendment to the legislation would be the guaranteed if
laborious solution to the problem, and should be considered, I am
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reassured by my belief that the procedure described above would
be followed as a matter of practice and provides a satisfactory
practical answer.
4.18 Decision and revocation. No controversy arises under section
21(7), which permits the Secretary of State to revoke a certificate.
As described above, he has done so, in that case to preserve the
legal rights under the Act of a person who remained a suspected
international terrorist. My observation and enquiries have
confirmed that the Home Secretary has been assisted greatly by
officials but has exercised his own judgment as to matters of
certification and revocation, and has not automatically followed the
advice given in every case. What I judge to be appropriate levels of
executive and political judgment are being applied to these cases.
4.19 SIAC. Section 21(8) and (9) provide that decisions and actions by
the Secretary of State in connection with certification under the
section may be questioned in legal proceedings only before SIAC.
This means that conventional judicial review proceedings are not
open to a certified person. SIAC is part of the High Court, and by
sections 26 and 27 is obliged to cancel a certificate in the absence
of evidence to meet the requirements of section 21(1).
4.20 In the conduct of its hearings (as opposed to the system of law it
operates) SIAC is not the subject of any serious criticism in relation
to the fairness of its approach or procedures. Senior
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judges with special experience chair the hearings. It has already
been noted that, at first instance, it found the ECHR revocation
unlawful, the contrary decision being reached by the Court of
Appeal. SIAC has the enviable flexibility pursuant to section 27(6)
to modify its own procedural rules even in relation to individual
cases.
4.21 The statutory appeal and review periods were considered
insufficiently frequent by the Joint Committee on Human Rights to
comply with ECHR article 5(4). This is not a matter falling directly
within my responsibilities, unless the periods can be shown to
cause difficulties in the fair hearing of cases by SIAC. I have no
doubt that the appeal and review periods could be given further
consideration by the Joint Committee and the Privy Council
Committee. This is a subject to which I shall certainly give
attention in my next review, in the light of experience of the next
period (presumably a year) for which the provisions will operate. I
do not doubt either that careful consideration will be given by
others to the suggestion (falling too outside my responsibilities)
that detention powers should be founded upon the use of criminal
offences rather than immigration and nationality.
4.22 Continuation of appeals after leaving the UK. Another matter
raised with me in connection with SIAC is as to whether appeals
should be permitted to continue even if a detainee has left for his
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home country or another country willing to accept him (as he may
at any time). This is a real issue. The certificates of two detainees
who have left the UK have been revoked with effect from the date
they left the country since it is accepted that they cannot be a risk
to national security within the restricted meaning of section
21(1)(a) if they are not within the UK. Nevertheless they may have a
strong interest in pursuing an appeal to SIAC, having regard to
family circumstances and their aspirations as to future residence
and work.
4.23 The Home Office has told me that it believes that a detainee who
has left the UK should be able to continue his appeal from abroad.
They suggest that the Act does not need to be amended to enable
this. They say that the tests SIAC must apply as provided by
section 25(2) would relate to the evidence for validity of the
certificate during the period before it was revoked in deciding
whether it should be cancelled (cancellation on an appeal being ab
intitio). This is because if SIAC considered the evidence at the date
of the appeal hearing it would be obliged to cancel the certificate
because the detainees would no longer be in the UK at that date.
This I find to be an arguable but contentious approach to section
25(2), far from certain to be accepted by SIAC. This point may arise
rarely, but is potentially of great importance in cases where it is
taken. I invite the Home Secretary to consider this further, and to
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introduce legislation to amend section 25 accordingly if doubt
remains.
4.24 Special advocates. Provision is made for special advocates to be
instructed by the Law Officers of the Crown16 to represent the
interests of the certified person17. It is provided18—
“(4) The function of the special advocate is to represent the interests of the appellant by— (a) making submissions to the Commission in any
proceedings from which the appellant and his representative are excluded;
(b) cross-examining witnesses at any such proceedings; and
(c) making written submissions to the Commission.
4.25 I have noted some concern about the role of special advocates, and
their contact with the person for whom they perform their
statutory functions. The certified person is not the client of the
special advocate. The certified person is entitled to representation
by solicitors and counsel via the Legal Services Commission. There
16 The Attorney General or the Lord Advocate, according to jurisdiction 17 See Special Immigration Appeals Commission (Procedure) Rules 1998, rule 7 18 Ibid, rule 7(4)
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have been some difficulties as to the extent and cost of free legal
assistance: hopefully the Commission recognises the complexity
and requirements of specialised knowledge inherent in some cases,
and allows representation by solicitors and counsel at a
corresponding level of experience and competence. However, the
legal representatives instructed by the certified person do not have
access to the closed material in the case, whereas the special
advocate does. Parts of the hearing including the examination of
some witnesses before SIAC can take place without the person’s
own lawyers present, but in the presence of the special advocate.
This puts the conventional legal representatives at a clear
disadvantage, as they do not receive disclosure of material likely to
go to the root of many cases.
4.26 The special advocates have been selected carefully and on a proper
basis. They include practitioners with experience of human rights,
judicial review and immigration and nationality cases. There can
be little justified criticism of the selection of the panel of lawyers
able to act as special advocates. Whether they are able to exercise
their role in a fashion that protects certified persons is more
difficult to determine.
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4.27 At first blush one might expect the special advocate to have quite a
free rein in dealing with certified persons and their representatives.
However, it is further provided19 –
“(5) Except in accordance with paragraphs (6) to (9), the special advocate may not communicate directly or indirectly with the appellant or his representative on any matter connected with proceedings before the Commission. (6) The special advocate may communicate with the appellant and his representative at any time before the Secretary of State makes material available to him under rule 10(3). (7) At any time after the Secretary of State has made material available under rule 10(3), the special advocate may seek directions from the Commission authorising him to seek information in connection with the proceedings from the appellant or his representative. (8) The Commission shall notify the Secretary of State of a request for directions under paragraph (7) and the Secretary of State must, within a period specified by the Commission, give the Commission notice of any objection which he has to the request for information being made or to the form in which it is proposed to be made. (9) Where the Secretary of State makes an objection under paragraph (8),
rule 11 shall apply as appropriate.”
Rule 11 provides for the means of considering and determining an
objection by the Secretary of State.
19 Ibid, rule 7
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4.28 The above means that in general the special advocate cannot ask
the certified person any question arising from the closed material.
The reasons for this extreme caution are centred upon the need to
protect the safety and integrity of human and electronic resources.
Connected with this is the protective anxiety of the UK authorities
in relation to the use of intercept material in court. As a general
rule evidence likely to reveal the existence or absence of an
interception warrant cannot be given or sought20. SIAC is a
statutory exception21, but this does not include applicants before
the Commission or their representatives (though it does include
the special advocates). The issue of the use of intercept material in
court was discussed in the Lloyd Report in 199622, which provided
the foundations of the Terrorism Act 2000. The United Kingdom’s
protective view of such evidence is not replicated elsewhere, and
Lord Lloyd and his colleagues identified at least 20 cases in which
the admissibility of intercept evidence would have enabled a
prosecution to be brought for serious offences23. It is not within my
remit to make any recommendation on the question. It is self-
evident that the availability of intercept evidence to SIAC and to the
special advocate, but not to the certified person or his own
20 Regulation of Investigatory Powers Act [RIPA] 2000 section 17 21 RIPA section 18 22 Inquiry into Legislation Against Terrorism, Cm3420, 1996 23 Ibid Vol 1 page 35
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lawyers, leaves the certified person at a disadvantage in knowing
and dealing with the true issues. The justification for this apparent
inequality, if there is justification, could only be founded in
overwhelming national security consistent with the emergency
upon which the ECHR derogation is founded.
4.29 I have been told and have seen evidence that some international
terrorists are extremely well trained in counter-surveillance, and
that there is the real risk that sources could be compromised by
deductions from even the most carefully phrased questions. In
addition, the knowledge to be derived as to electronic capability
and intercept location from the use or disclosure of intercept
evidence in the cases covered by ACSA2001 sections 21 to 23
could affect the ability of the police and security services to
maintain continuing operations against terrorists.
4.30 In the light of the evidence I have seen and heard, including
compelling closed material, and taking into account all the views
received, I have concluded that the special advocate system works
reasonably well to achieve its purpose of assisting SIAC to reach
decisions correct in fact and law. As a general principle
conventional criminal case disclosure is preferable to any system
contrived (as here) to meet the needs of a group of hard cases.
However, because of the restrictions the special advocates are
careful to take account of the full range of potential issues. In so
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far as the undoubted inequalities of information are concerned, my
overall judgment is that the provisions maintain a reasonable
balance between fair proceedings and the reality of life-threatening
risks to the public and to law enforcement agencies. If the level of
threat reduces, a greater degree of procedural equality should be
restored as a priority.
4.31 I shall monitor closely over the next review period the procedure
and effectiveness of SIAC when dealing with substantive issues,
and the effectiveness of the special advocate system. In particular,
I shall be interested in the extent to which special advocates apply
to communicate with the certified person after receiving the closed
material in a case, and the progress of such applications.
4.32 SIAC rules. Consultation is taking place at present about changes
in the SIAC rules. This consultation involves members of SIAC, the
Lord Chancellor’s Department, a special advocate, and
representative other service users. Those preparing any rule
changes will doubtless ensure that the views of the Home Office
and of lawyers instructed by certified persons are considered fully,
but hopefully will not delay necessary changes longer than is
absolutely necessary. In my view rule changes could usefully
include –
• the introduction of paper only consideration of reviews where
there is agreement for such a procedure, for example where
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there has been no material change of circumstances since
the last review
• provision of a procedure for cases to be heard together where
appropriate because of coincidence of facts and law
• possible ways of accelerating rule 11 applications (where the
special advocate wishes to communicate with the certified
person after receiving closed material).
4.33 Whilst the promulgation of amended rules is desirable, to reflect
experience and need in the cases under consideration, section
27(6) appears to cover the need for rule modifications to meet
individual cases.
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V SECTION 22
5.1 Section 22 lists, in subsection (2), actions that may be taken in
respect of a suspected international terrorist despite the fact that
those actions cannot at present result in the actual removal of that
person because either a point of law relating to an international
agreement or a practical consideration prevents this.
5.2 This is a real issue. ECHR article 3 prevents the removal from the
United Kingdom of a person who would be at risk of torture or
inhuman or degrading treatment or punishment in the country to
which they were sent. There are no exceptions to this rule.
5.3 Practical considerations would include the unavailability of direct
flight routes to the country of intended removal, or a lack of any
appropriate travel documentation.
5.4 In relation to article 3, among the group of certified persons
currently detained are passport holders of country X24. For article
3 reasons we do not return certified persons to country X, as they
are all potential victims of article 3 unacceptable treatment if
returned, on account of their political beliefs. From what they told
me they do not wish to be sent there. They would be at risk if
repatriated. Some EU governments do sometimes send people back
to country X, after considering individual cases on their merits and
24 I have been advised that it is necessary to withhold the name of the country concerned.
29
by reason of a differently nuanced interpretation of the 1967
Protocol relating to the Status of Refugees. This difference between
our own approach and that taken by fellow members of both the
Council of Europe and the European Union can seem puzzling,
and is easily over-simplified. At present it is consistent with the
wishes of the certified detainees.
5.5 The actions listed in section 22(2) do not permit a person to be
removed contrary to article 3 or any other international obligations.
They do permit actions to be taken with a view to future removal
which, but for the certification under section 21, the courts might
be able to set aside. The provisions of section 22 are largely
procedural, to enable immigration detention powers to be used for
detentions under section 23.
5.6 I have found no evidence that section 22 causes any particular
difficulties.
30
VI SECTION 23
6.1 Section 23 provides for the detention of a certified international
terrorist under the provisions of the Immigration Act 1971. This
applies even if their removal is temporarily or indefinitely prevented
by a point of law relating to an international agreement or practical
considerations (as discussed in chapter V above).
6.2 I have visited HMP Belmarsh and HMP Woodhill, where the
detained certified persons are kept. At the time of my visits there
were 8 detainees: the number had increased to 10 by the time of
writing this report. I was able to speak privately to 7 of the 8. One
refused to speak to me. Another was suffering from a serious
illness, and has since been transferred out of prison to a secure
hospital: however, despite his condition I was able to have a short
conversation with him. Some were willing to speak to me at length.
6.3 HMP Belmarsh is an unattractive and unpleasant place. The
detainees I saw there and at Woodhill are held in highest category
conditions. At Belmarsh at least two had notices outside their cell
doors with the word ‘Convicted’ as a description of their status: as
they have not been charged with any offence, this description could
hardly be less accurate, and was removed at my request. Woodhill
is a less unpleasant prison, with natural light and space to move
around even in the high security setting. The detainees to whom I
31
spoke in Woodhill appeared more relaxed, a natural consequence
of the altogether more benign environment.
6.4 All complained to me of the fact that they were treated in the same
way as men convicted of the most serious crimes, indeed were
locked up alongside such men. Some have complained of worse
treatment, including the use of solitary confinement, restricted
opportunities to contact family, and insensitivity to religious
observance. Generally they have the opportunity to fraternise with
each other, an opportunity that would not necessarily be permitted
in all other countries. However, their position and status is
unenviable. All told me of the real and, in my view understandable
difficulty of dealing with incarceration without either trial,
conviction or an indication of when if ever it would come to an end.
The 2006 closure date for the legislation does not reassure them.
Some contrasted their position unfavourably with that of life
sentence prisoners, who at least know their tariff and when they
will be considered for parole. They have no remission, and no
parole.
6.5 The Home Office has assured me that criminal charges are brought
in every case in which it is possible to do so without compromising
security matters. I accept this assurance, having seen evidence of
serious terrorist suspects being charged with, for example, credit
card fraud to ensure due process and conventionally lawful
32
detention. Of course, if the criminal law was amended to include a
broadly drawn offence of acts preparatory to terrorism, all could be
prosecuted for criminal offences and none would suffer executive
detention: the merits of this suggestion fall outside the scope of
this review.
6.6 The detainees made various detailed complaints to me about
prison reception procedures, reading matter, ability to speak as
often as they wish on the telephone in their own language, intimate
searches, dentistry, education facilities, food and lack of suitable
items in the prison shop. I have taken up these matters direct with
the Director-General of the Prison Service, and I believe that
improvements have been made since the detentions under section
23 started.
6.7 I make particular mention of prison reception procedures. Those
detained under section 23 are not taken for processing to a police
station when seized. Processing procedures take place at the
prison, which for this purpose has a reception role similar to that
of the police station custody suite. Prison service staff have
complained to me that they are given inadequate information
about the new arrivals, and of course there are sometimes
language problems. I hope that this will be given attention.
Wherever they are detained, these uncharged persons should be
provided with a reasonable level of information, speedy legal
33
advice, and the prison staff given a sufficient dossier of facts to
enable them to know their personal details in so far as these are
ascertainable. The organisation Liberty and solicitors representing
detainees have complained that there is no equivalent to the police
station duty solicitor scheme, and no provision of information as to
specialist solicitors for such cases. These complaints are justified.
Prison staff should be equipped and required to deal with these
matters.
6.8 It is my firm and considered opinion, confirmed by almost every
observer with whom I have discussed the matter, that persons who
have not been charged with any offence should have that status
reflected in the circumstances of their detention. This need not
compromise security in any way. Whilst the history of detention
without charge during the 1939-45 war is open to detailed
criticism as to the way the powers were exercised and the paucity
of evidence sometimes relied upon25, wartime detainees in many
cases were kept in better than prison conditions and with a degree
of self-governance. Another set of examples may be derived from
the treatment of convicted prisoners in the later years of the H-
blocks at The Maze prison in Northern Ireland. There, behind
formidable multiple-perimeter security, convicted paramilitary
25 See, for example, In the Highest Degree Odious: Detention without Trial in Wartime Britain: Brian Simpson, AW Simpson 1997
34
prisoners were permitted to move reasonably freely within the
blocks and enjoy a significant level of self-governance.
6.9 I would be extremely concerned if the security of detention, and
secure prevention of terrorist activity during detention, was not as
high as it is at present. However, for persons who have not been
charged with any criminal offences in my view it would be far
preferable if section 23 detainees could be kept in a separate,
secure environment with greater internal freedom of association
and of activity.
6.10 I recognise that a change in the circumstances of detention may
not be without difficulty. Those detained are not necessarily a
homogeneous group. Some may object to incarceration with others,
possibly from genuine fear.
6.11 Whilst the type of new facility proposed should be used for section
23 detainees as a matter of course, there should remain discretion
to disperse individuals elsewhere in the prison estate in
appropriate circumstances. I doubt this would arise often.
6.12 I have discussed my views as set out in paragraphs 6.8 and 6.9 in
a meeting with the Home Secretary and officials, and subsequently
with the Director-General of the Prison Service. I have been
assured that steps are being taken to identify an establishment
where the detainees could be held together as described, if at all
35
possible. I look forward to hearing of further progress. I was
encouraged by the meetings.
6.13 Professor Clive Walker and others have suggested that less
intrusive alternatives to custody be considered. One possibility is
the use of exclusion orders. Another is the use of registration and
restraint orders, as existed under the Prevention of Violence
(Temporary Provisions) Act 1939. Professor Walker has suggested
that the use of modern electronic measures such as tagging might
meet need. Restrictions on movement and activities, though
intrusive and limiting, would be less damaging to the rights of
individuals. I agree that such measures should be considered as
an alternative to detention, possibly for use as conditions for a
form of suspended detention.
36
VII CONCLUSION
My main conclusions are as follows –
1) Pending substantive hearings before SIAC should proceed without
awaiting the final determination of the challenge to derogation from
the ECHR.
2) Consideration should be given to the amendment of section 21 to
remove the term ‘links’.
3) The Secretary of State has certified persons as international
terrorists only in appropriate cases.
4) The Secretary of State has exercised his independent judgment in
each case, giving due regard to advice from officials.
5) Section 25 should be amended to ensure that appeals against
certification may continue after the departure from the UK of a
certified person.
6) The effectiveness of and the statutory inhibitions placed upon
special advocates as protectors of the rights of detained persons
should be kept under review.
7) Updating of the procedural rules of SIAC should not be delayed.
8) Steps should be taken to provide separate facilities more suitable
to the special circumstances of executive detention of persons who
have not been charged with any offences.
Alex Carlile House of Lords, London SW1A 0PW
January 2003.
37
Anti-terrorism, Crime and Security Act 2001
PART 4
IMMIGRATION AND ASYLUM
Suspected international terrorists
21 Suspected international terrorist: certification
(1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably-
(a) believes that the person's presence in the United Kingdom is a risk to national security, and
(b) suspects that the person is a terrorist.
(2) In subsection (1)(b) "terrorist" means a person who- (a) is or has been concerned in the commission, preparation or
instigation of acts of international terrorism, (b) is a member of or belongs to an international terrorist group, or (c) has links with an international terrorist group.
(3) A group is an international terrorist group for the purposes of
subsection (2)(b) and (c) if- (a) it is subject to the control or influence of persons outside the
United Kingdom, and (b) the Secretary of State suspects that it is concerned in the
commission, preparation or instigation of acts of international terrorism.
(4) For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it.
(5) In this Part- "terrorism" has the meaning given by section 1 of the Terrorism Act
2000 (c. 11), and "suspected international terrorist" means a person certified under
subsection (1).
(6) Where the Secretary of State issues a certificate under subsection (1) he shall as soon as is reasonably practicable-
(a) take reasonable steps to notify the person certified, and (b) send a copy of the certificate to the Special Immigration
Appeals Commission.
38
(7) The Secretary of State may revoke a certificate issued under subsection (1).
(8) A decision of the Secretary of State in connection with certification under this section may be questioned in legal proceedings only under section 25 or 26.
(9) An action of the Secretary of State taken wholly or partly in reliance on a certificate under this section may be questioned in legal proceedings only by or in the course of proceedings under-
(a) section 25 or 26, or (b) section 2 of the Special Immigration Appeals Commission Act
1997 (c. 68) (appeal).
22 Deportation, removal, &c.
(1) An action of a kind specified in subsection (2) may be taken in respect of a suspected international terrorist despite the fact that (whether temporarily or indefinitely) the action cannot result in his removal from the United Kingdom because of-
(a) a point of law which wholly or partly relates to an international agreement, or
(b) a practical consideration.
(2) The actions mentioned in subsection (1) are-
(a) refusing leave to enter or remain in the United Kingdom in accordance with provision made by or by virtue of any of sections 3 to 3B of the Immigration Act 1971 (c. 77) (control of entry to United Kingdom),
(b) varying a limited leave to enter or remain in the United Kingdom in accordance with provision made by or by virtue of any of those sections,
(c) recommending deportation in accordance with section 3(6) of that Act (recommendation by court),
(d) taking a decision to make a deportation order under section 5(1) of that Act (deportation by Secretary of State),
(e) making a deportation order under section 5(1) of that Act, (f) refusing to revoke a deportation order, (g) cancelling leave to enter the United Kingdom in accordance
with paragraph 2A of Schedule 2 to that Act (person arriving with continuous leave),
(h) giving directions for a person's removal from the United Kingdom under any of paragraphs 8 to 10 or 12 to 14 of Schedule 2 to that Act (control of entry to United Kingdom),
(i) giving directions for a person's removal from the United Kingdom under section 10 of the Immigration and Asylum Act 1999 (c. 33) (person unlawfully in United Kingdom), and
39
(j) giving notice to a person in accordance with regulations under paragraph 1 of Schedule 4 to that Act of a decision to make a deportation order against him.
(3) Action of a kind specified in subsection (2) which has effect in respect of a suspected international terrorist at the time of his certification under section 21 shall be treated as taken again (in reliance on subsection (1) above) immediately after certification.
23 Detention
(1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom 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.
(2) The provisions mentioned in subsection (1) are- (a) paragraph 16 of Schedule 2 to the Immigration Act 1971 (c. 77)
(detention of persons liable to examination or removal), and (b) paragraph 2 of Schedule 3 to that Act (detention pending
deportation).
24 Bail
(1) A suspected international terrorist who is detained under a provision of the Immigration Act 1971 may be released on bail.
(2) For the purpose of subsection (1) the following provisions of Schedule 2 to the Immigration Act 1971 (control on entry) shall apply with the modifications specified in Schedule 3 to the Special Immigration Appeals Commission Act 1997 (c. 68) (bail to be determined by Special Immigration Appeals Commission) and with any other necessary modifications-
(a) paragraph 22(1A), (2) and (3) (release), (b) paragraph 23 (forfeiture), (c) paragraph 24 (arrest), and (d) paragraph 30(1) (requirement of Secretary of State's consent).
(3) Rules of procedure under the Special Immigration Appeals
Commission Act 1997 (c. 68)- (a) may make provision in relation to release on bail by virtue of
this section, and
40
(b) subject to provision made by virtue of paragraph (a), shall apply in relation to release on bail by virtue of this section as they apply in relation to release on bail by virtue of that Act subject to any modification which the Commission considers necessary.
25 Certification: appeal
(1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21.
(2) On an appeal the Commission must cancel the certificate if- (a) it considers that there are no reasonable grounds for a belief or
suspicion of the kind referred to in section 21(1)(a) or (b), or (b) it considers that for some other reason the certificate should not
have been issued.
(3) If the Commission determines not to cancel a certificate it must dismiss the appeal.
(4) Where a certificate is cancelled under subsection (2) it shall be treated as never having been issued.
(5) An appeal against certification may be commenced only- (a) within the period of three months beginning with the date on
which the certificate is issued, or (b) with the leave of the Commission, after the end of that period
but before the commencement of the first review under section 26.
26 Certification: review
(1) The Special Immigration Appeals Commission must hold a first review of each certificate issued under section 21 as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the certificate is issued.
(2) But- (a) in a case where before the first review would fall to be held in
accordance with subsection (1) an appeal under section 25 is commenced (whether or not it is finally determined before that time) or leave to appeal is given under section 25(5)(b), the first review shall be held as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the appeal is finally determined, and
41
(b) in a case where an application for leave under section 25(5)(b) has been commenced but not determined at the time when the first review would fall to be held in accordance with subsection (1), if leave is granted the first review shall be held as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the appeal is finally determined.
(3) The Commission must review each certificate issued under section 21 as soon as is reasonably practicable after the expiry of the period of three months beginning with the date on which the first review or a review under this subsection is finally determined.
(4) The Commission may review a certificate during a period mentioned in subsection (1), (2) or (3) if-
(a) the person certified applies for a review, and (b) the Commission considers that a review should be held because
of a change in circumstance.
(5) On a review 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 section 21(1)(a) or (b), and
(b) otherwise, may not make any order (save as to leave to appeal).
(6) A certificate cancelled by order of the Commission under subsection (5) ceases to have effect at the end of the day on which the order is made.
(7) Where the Commission reviews a certificate under subsection (4), the period for determining the next review of the certificate under subsection (3) shall begin with the date of the final determination of the review under subsection (4).
27 Appeal and review: supplementary
(1) The following provisions of the Special Immigration Appeals Commission Act 1997 (c. 68) shall apply in relation to an appeal or review under section 25 or 26 as they apply in relation to an appeal under section 2 of that Act-
(a) section 6 (person to represent appellant's interests), (b) section 7 (further appeal on point of law), and (c) section 7A (pending appeal).
(2) The reference in subsection (1) to an appeal or review does not
include a reference to a decision made or action taken on or in connection with-
(a) an application under section 25(5)(b) or 26(4)(a) of this Act, or (b) subsection (8) below.
(3) Subsection (4) applies where-
42
(a) a further appeal is brought by virtue of subsection (1)(b) in connection with an appeal or review, and
(b) the Secretary of State notifies the Commission that in his opinion the further appeal is confined to calling into question one or more derogation matters within the meaning of section 30 of this Act.
(4) For the purpose of the application of section 26(2) and (3) of this Act the determination by the Commission of the appeal or review in connection with which the further appeal is brought shall be treated as a final determination.
(5) Rules under section 5 or 8 of the Special Immigration Appeals Commission Act 1997 (general procedure; and leave to appeal) may make provision about an appeal, review or application under section 25 or 26 of this Act.
(6) Subject to any provision made by virtue of subsection (5), rules under section 5 or 8 of that Act shall apply in relation to an appeal, review or application under section 25 or 26 of this Act with any modification which the Commission considers necessary.
(7) Subsection (8) applies where the Commission considers that an appeal or review under section 25 or 26 which relates to a person's certification under section 21 is likely to raise an issue which is also likely to be raised in other proceedings before the Commission which relate to the same person.
(8) The Commission shall so far as is reasonably practicable- (a) deal with the two sets of proceedings together, and (b) avoid or minimise delay to either set of proceedings as a result
of compliance with paragraph (a).
(9) Cancellation by the Commission of a certificate issued under section 21 shall not prevent the Secretary of State from issuing another certificate, whether on the grounds of a change of circumstance or otherwise.
(10) The reference in section 81 of the Immigration and Asylum Act 1999 (c. 33) (grants to voluntary organisations) to persons who have rights of appeal under that Act shall be treated as including a reference to suspected international terrorists.
28 Review of sections 21 to 23
(1) The Secretary of State shall appoint a person to review the operation of sections 21 to 23.
(2) The person appointed under subsection (1) shall review the operation of those sections not later than-
43
(a) the expiry of the period of 14 months beginning with the day on which this Act is passed;
(b) one month before the expiry of a period specified in accordance with section 29(2)(b) or (c).
(3) Where that person conducts a review under subsection (2) he shall send a report to the Secretary of State as soon as is reasonably practicable.
(4) Where the Secretary of State receives a report under subsection (3) he shall lay a copy of it before Parliament as soon as is reasonably practicable.
(5) The Secretary of State may make payments to a person appointed under subsection (1).
29 Duration of sections 21 to 23
(1) Sections 21 to 23 shall, subject to the following provisions of this section, expire at the end of the period of 15 months beginning with the day on which this Act is passed.
(2) The Secretary of State may by order- (a) repeal sections 21 to 23; (b) revive those sections for a period not exceeding one year; (c) provide that those sections shall not expire in accordance with
subsection (1) or an order under paragraph (b) or this paragraph, but shall continue in force for a period not exceeding one year.
(3) An order under subsection (2)- (a) must be made by statutory instrument, and (b) may not be made unless a draft has been laid before and
approved by resolution of each House of Parliament.
(4) An order may be made without compliance with subsection (3)(b) if it contains a declaration by the Secretary of State that by reason of urgency it is necessary to make the order without laying a draft before Parliament; in which case the order-
(a) must be laid before Parliament, and (b) shall cease to have effect at the end of the period specified in
subsection (5) unless the order is approved during that period by resolution of each House of Parliament.
(5) The period referred to in subsection (4)(b) is the period of 40 days- (a) beginning with the day on which the order is made, and (b) ignoring any period during which Parliament is dissolved or
prorogued or during which both Houses are adjourned for more than four days.
44
(6) The fact that an order ceases to have effect by virtue of subsection (4)-
(a) shall not affect the lawfulness of anything done before the order ceases to have effect, and
(b) shall not prevent the making of a new order.
(7) Sections 21 to 23 shall by virtue of this subsection cease to have effect at the end of 10th November 2006.
30 Legal proceedings: derogation
(1) In this section "derogation matter" means- (a) a derogation by the United Kingdom from Article 5(1) of the
Convention on Human Rights which relates to the detention of a person where there is an intention to remove or deport him from the United Kingdom, or
(b) the designation under section 14(1) of the Human Rights Act 1998 (c. 42) of a derogation within paragraph (a) above.
(2) A derogation matter may be questioned in legal proceedings only before the Special Immigration Appeals Commission; and the Commission-
(a) is the appropriate tribunal for the purpose of section 7 of the Human Rights Act 1998 in relation to proceedings all or part of which call a derogation matter into question; and
(b) may hear proceedings which could, but for this subsection, be brought in the High Court or the Court of Session.
(3) In relation to proceedings brought by virtue of subsection (2)- (a) section 6 of the Special Immigration Appeals Commission Act
1997 (c. 68) (person to represent appellant's interests) shall apply with the reference to the appellant being treated as a reference to any party to the proceedings,
(b) rules under section 5 or 8 of that Act (general procedure; and leave to appeal) shall apply with any modification which the Commission considers necessary, and
(c) in the case of proceedings brought by virtue of subsection (2)(b), the Commission may do anything which the High Court may do (in the case of proceedings which could have been brought in that court) or which the Court of Session may do (in the case of proceedings which could have been brought in that court).
(4) The Commission's power to award costs (or, in Scotland, expenses) by virtue of subsection (3)(c) may be exercised only in relation to such part of proceedings before it as calls a derogation matter into question.
45
(5) In relation to proceedings brought by virtue of subsection (2)(a) or (b)-
(a) an appeal may be brought to the appropriate appeal court (within the meaning of section 7 of the Special Immigration Appeals Commission Act 1997 (c. 68)) with the leave of the Commission or, if that leave is refused, with the leave of the appropriate appeal court, and
(b) the appropriate appeal court may consider and do only those things which it could consider and do in an appeal brought from the High Court or the Court of Session in proceedings for judicial review.
(6) In relation to proceedings which are entertained by the Commission under subsection (2) but are not brought by virtue of subsection (2)(a) or (b), subsection (4) shall apply in so far as the proceedings call a derogation matter into question.
(7) In this section "the Convention on Human Rights" has the meaning given to "the Convention" by section 21(1) of the Human Rights Act 1998 (c. 42).
31 Interpretation
A reference in section 22, 23 or 24 to a provision of the Immigration Act 1971 (c. 77) includes a reference to that provision as applied by-
(a) another provision of that Act, or (b) another Act.
32 Channel Islands and Isle of Man
Her Majesty may by Order in Council direct that sections 21 to 31 shall extend, with such modifications as appear to Her Majesty to be appropriate, to any of the Channel Islands or the Isle of Man.
Refugee Convention
33 Certificate that Convention does not apply
(1) This section applies to an asylum appeal before the Special
Immigration Appeals Commission where the Secretary of State issues a certificate that-
(a) the appellant is not entitled to the protection of Article 33(1) of the Refugee Convention because Article 1(F) or 33(2) applies to him (whether or not he would be entitled to protection if that Article did not apply), and
46
(b) the removal of the appellant from the United Kingdom would be conducive to the public good.
(2) In this section- "asylum appeal" means an appeal under section 2 of the Special
Immigration Appeals Commission Act 1997 (c. 68) in which the appellant makes a claim for asylum (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (c. 33)), and
"the Refugee Convention" has the meaning given by that section.
(3) Where this section applies the Commission must begin its substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate.
(4) If the Commission agrees with those statements it must dismiss such part of the asylum appeal as amounts to a claim for asylum (before considering any other aspect of the case).
(5) If the Commission does not agree with those statements it must quash the decision or action against which the asylum appeal is brought.
(6) Where a decision or action is quashed under subsection (5)- (a) the quashing shall not prejudice any later decision or action,
whether taken on the grounds of a change of circumstance or otherwise, and
(b) the claim for asylum made in the course of the asylum appeal shall be treated for the purposes of section 15 of the Immigration and Asylum Act 1999 (interim protection from removal) as undecided until it has been determined whether to take a new decision or action of the kind quashed.
(7) The Secretary of State may revoke a certificate issued under subsection (1).
(8) No court may entertain proceedings for questioning- (a) a decision or action of the Secretary of State in connection with
certification under subsection (1), (b) a decision of the Secretary of State in connection with a claim
for asylum (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999) in a case in respect of which he issues a certificate under subsection (1) above, or
(c) a decision or action of the Secretary of State taken as a consequence of the dismissal of all or part of an asylum appeal in pursuance of subsection (4).
(9) Subsection (8) shall not prevent an appeal under section 7 of the Special Immigration Appeals Commission Act 1997 (appeal on point of law).
47
(10) Her Majesty may by Order in Council direct that this section shall extend, with such modifications as appear to Her Majesty to be appropriate, to any of the Channel Islands or the Isle of Man.
34 Construction
(1) Articles 1(F) and 33(2) of the Refugee Convention (exclusions: war criminals, national security, &c.) shall not be taken to require consideration of the gravity of-
(a) events or fear by virtue of which Article 1(A) would or might apply to a person if Article 1(F) did not apply, or
(b) a threat by reason of which Article 33(1) would or might apply to a person if Article 33(2) did not apply.
(2) In this section "the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to the Convention.
Special Immigration Appeals Commission
35 Status of Commission
At the end of section 1 of the Special Immigration Appeals Commission
Act 1997 (c. 68) insert- (4) A decision of the Commission shall be questioned in legal proceedings only in accordance with-
(a) section 7, or
(b) section 30(5)(a) of the Anti-terrorism, Crime and Security Act 2001 (derogation)."
Fingerprints
36 Destruction of fingerprints
(1) In section 143 of the Immigration and Asylum Act 1999 (c. 33) (destruction of fingerprints)-
(a) subsections (3) to (8) (requirement to destroy fingerprints on resolution of asylum and immigration cases) shall cease to have effect,
(b) in subsection (9) (dependants) after "F" insert "(within the meaning of section 141(7))", and
(c) subsection (14) (interpretation) shall cease to have effect.
(2) Subsection (1)- (a) shall have effect in relation to fingerprints whether taken before
or after the coming into force of this section, and
48
(b) in relation to fingerprints which before the coming into force of this section were required by section 143 to be destroyed, shall be treated as having had effect before the requirement arose.