Anti-terrorism, Crime and Security Act 2001
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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 September 11, 2001 attacks on New York. A Parliamentary committee was critical of the swift timetable for such a long Bill.[1] It received royal assent and went into force on 13 December 2001. Many of its measures were not related to terrorism.
On 16 December 2004 the Law Lords ruled that Part 4 was incompatible with the European Convention on Human Rights, and therefore ceased to be in force.
[edit] Parts 1-3 (Terrorist finances)
These sections applied to the finances of suspected terrorist organizations. They rewrote parts of the Terrorism Act 2000 relating to seizure of suspected terrorist assets, specified how bank acounts could be frozen, and authorized the disclosure of financial information relating to any criminal investigation.
[edit] Part 4
Part 4 of the Anti-terrorism, Crime and Security Act 2001 allowed for the Home Secretary to certify any non-British citizen whom he suspected to be a terrorist and detain them indefinitely, pending deportation, even when such a deportation would be prohibited.[2]. The Law Lords ruled against the law in a case brought by eight of the detained suspected terrorists on 16 December 2004 and the measure was effectively abolished the following March when it was up for review.[3] Its powers were replaced with "control orders", brought in by the Prevention of Terrorism Act 2005.
[edit] Implementation
The Immigration Act 1971 allows for the deportation of those who are a threat to national security for cases where there is insufficient admissible evidence for prosecution, however a ruling by the European Court of Human Rights in the case of Chahal v United Kingdom in 1996, ruled that deportation of persons to another country was not allowed if there were substantial grounds for believing that the person would be subjected to torture. As a result, the government argued that this provision was necessary to overcome this conjunction of legal and security problems, and allow indefinite detention without charge or trial.
Since this measure was known to step beyond the bounds of Article 5 of the ECHR, the government included Clause 30 to allow for a derogation (an opt out), claiming that since there was a "state of emergency threatening the life of the nation" (just one interpretation of the War on Terror) which allowed it to do this. The Special Immigration Appeals Commission was to oversee the process.
The derogation order came into force on 13 November 2001,[4][5] and was repealed on 8 April 2005.[6] Between those dates the government claimed that there existed in the United Kingdom a state of public emergency threatening the life of the nation, within the meaning of Article 15(1) of the European Convention on Human Rights.
This part was renewed by Parliament on 3 March 2003 without a vote, and on 3 March 2004 with a vote.[7][8]
[edit] Cases
Between 2001 and 2003 sixteen foreign nationals had been detained and held using these powers at Belmarsh. Eight were detained in December 2001, one in February 2002, two in April 2002, one in October 2002, one in November 2002, two in January 2002 and one in October 2003. One further individual has been certified but is detained under other powers. Of the total detained, two have voluntarily left the United Kingdom. The other fourteen remain in detention.[9]
[edit] Appeals
The Act did provide a process for appealing to a judicial tribunal against the Home Secretary's decision to detain in each case. However, the government had argued that a special appellate process was needed to deal with these appeals because of the possibility that much of the evidence or information upon which the Home Secretary's suspicions may be based was likely to be sensitive information of a confidential nature whose release to the person detained or the public, might compromise intelligence methods, operatives, and other persons. Therefore the process established by the ATCSA involved special rules of evidence which most notably permitted the exclusion of the detainees and their legal representatives from proceedings. In an attempt to ensure that their rights were safeguarded at these times, special security-vetted 'special advocates' were appointed in the place of their legal representatives. However there is some evidence that these special advocates experienced difficulties effectively protecting their interests, and two of the special advocates subsequently resigned from their positions following the December 2004 ruling of the House of Lords.
In October 2002 the Special Immigration Appeals Commission decided that the Home Secretary's derogation was lawful, and that there was indeed a "state of emergency threatening the life of the nation".
A series of legal challenges were made in respect of the powers and processes established under the ATCSA and on December 16, 2004, the Law Lords ruled that the powers of detention conferred by Part 4 of ATCSA were incompatible with the UK's obligations under the European Convention on Human Rights. The Court ruled by a majority of 8-1 that the purported derogation was not authorised by Article 15 of the European Convention on Human Rights since the measures taken could not rationally be held to be "strictly required by the exigencies of the situation", and were in any event discriminatory contrary to Article 14 of the Convention.
The ruling could be summed up as follows:[10]
- No detention pending deportation had lasted for more than 7 days, let alone 3 years.
- The law was discriminatory, in that it could only be applied to foreign nationals. What if a terrorist was a British citizen?
- There was no observable state of emergency threatening the life of the nation. No other European country which had experience far more severe crises had declared such a state of emergency over such a long time period, and certainly without anyone noticing.
The Court quashed the order derogating from the UK's obligations under the Convention, and issued a declaration pusuant to section 4 of the Human Rights Act 1998 that the provisions of the ATCSA which empowered the preventative detention of non-British suspected international terrorists were incompatible with the European Convention. The effect of such a declaration in British law is not to deprive the legislation of legal effect, and Parliament may, if it wishes, refuse to repeal or amend any provision declared to be incompatible. However the making of a declaration of incompatibility carries strong moral force, and creates considerable political pressure to address the incompatibility.
[edit] Replacement of Part 4
To this end Part 4 of the ATCSA was replaced by the Prevention of Terrorism Act 2005 in March 2005. This Act replaces detention in prison with "control orders" which allow for the imposition of an extensive and non-exhaustive set of conditions on the movements of the suspected person with restrictions approaching a form of house arrest.
Unlike Part 4 of the ATCSA, the powers in the Prevention of Terrorism Act 2005 can be applied to British and non-British suspected terrorists alike. At the time of its enactment there was considerable debate as to the compatibility of this Act's provisions with domestic and international human rights laws.
Eleven control orders were issued on the night the act passed on 11 March 2005 against the terrorist suspects who were due to be released. By October of that year only three were still in force.
[edit] Part 5 (Racial hatred)
Substituted "Racially-aggravated" with "Racially or religiously aggravated" in some parts of the criminal law.
[edit] Parts 6-8 (Weapons of mass destruction)
Made it illegal to deal in biological or chemical weapons, or set off a nuclear explosion. It also made it illegal to disclose information "which might prejudice the security of any nuclear site or of any nuclear material."
[edit] Part 9 (Aircraft security)
Allowed for the Secretary of State to make new regulations, and for the detention of aircraft where there is suspicion of an act of violence against a person on the aircraft.
[edit] Part 10 (Police powers)
Allowed the police to forcably obtain fingerprints and other identifying features from an individual to ascertain their identity. Also allowed for the Ministry of Defence Police to operate in civilian areas outside of military bases in certain circumstances.
[edit] Part 11 (Retention of communications data)
Created wide powers for the Secretary of State to regulate telephone companies and internet providers to retain data for the purpose national security.
[edit] Part 12 (Bribery and corruption)
Extended the laws to apply to cases outside the United Kingdom.
[edit] Part 13 (Miscellaneous)
Gave the Secretary of State the power to implement the Police and Judicial Co-operation in Criminal Matters section of the Maastrict Treaty.
[edit] Part 14 (Supplemental)
Outlined the timetable for the review of the act. This procedure fell far short of a sunset clause.
[edit] See also
[edit] External links
- Table containing House of Commons votes from the Public Whip.
- Text of ATCSA Official text
- Belmarsh - Britain's Guantanamo Bay? [11]
- Special Lawyer Criticizes Appeal System [12]
- Article on Law Lords' ruling
- House of Lords Judgments - A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
