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Identify and discuss the extent to which the detention of foreign terrorist suspects under Part IV of the Anti-Terrorism Crime and Security Act 2001 does and does not conform with the requirements of the European Convention on Human Rights
The fear of terrorist attacks in a state, especially in the UK has resurfaced since September 11th 2001. After decades of terrorist attacks from the IRA, which seems to have become dormant the government’s laws were less on protection and restriction within the state. This heralded the movement to incorporate the European Convention of Human Rights (ECHR) and was fulfilled in the HRA 1998. The following discussion will consider parliament’s response to the recent spate of terrorist attacks, especially Part IV of the Anti-Terrorism Crime and Security Act 2001 (ATCSA) and its incompatibility with the ECHR. In order to this the discussion will discuss the duty of the state to protect the right to life, as contained in the ECHR’s Article 2 and reaffirmed in the HRA Schedule 1. It will then consider the European Court’s (ECtHR) response to counter-terrorism perspectives and the ECtHR case of Klass v Germany. The discussion will then turn to discussing the Secretary of State for the Home Department’s (SSHD) power to deport in the public’s interest, as found in the Immigration Act 1971 (ImA) s. 3(5) and whether this fulfils the obligation of the ECtHR in respect to the limitations to the state’s power of deportation. Finally it will turn to Part IV of the ATCSA ss. 21-23 and discuss whether the power to indefinitely detain those who cannot be deported without a trial is in line with Article 5 of the ECHR.
Positive Duty to Protect Life under ECHR Article 2:
There has been a lot of discussion on the extent there is a positive duty to protect life. In the case of Osman v UK the duty is restated as:
Article 2 may imply, inter alia, positive obligation for State to take preventive operational measures to protect individual whose life at risk from criminal acts of another individual – on other hand, scope of such obligation contested – for Court, it must be established to its satisfaction that authorities knew or ought to have known at time of existence of real and immediate risk to life of individual and failed to take measures which, judged reasonably, might have been expected to avoid said risk – sufficient in this regard for applicant alleging breach of positive obligation to show that authorities did not do all that could reasonably be expected of them in circumstances to avoid risk.
Therefore it depends on the circumstances of the case and whether there is enough knowledge that there is a risk to an individual’s life for the state to positively act to protect the individual. The state cannot expect to have fulfilled its duty by employing a defence force or police force as the this case concluded, i.e. an immunity from the police being negligent in the course of their duties doe equate to an infringement of Article 2 and Article 6(1). This means that the state has to ensure that the steps are taken by their designated protection forces. The state has to remember that it also has a duty to protect not only its citizens but non-citizens that are in fear of their life if they are deported, creating a difficult problem with terrorism and deporting suspected terrorists if they are in the UK on the premise that they may be tortured, even killed if they return to their state of origin.
ECtHR’s response to Anti-Terrorism Measures:
The Klass v Germany is the key case on anti-terrorist measures, such as legislation allowing persons to be subject to surveillance through bugging telephones, homes, opening of post and private correspondence, as well as following persons and taking photographs and video surveillance of their everyday lives under the mere suspicion of terrorist/criminal activity. This right should not be a general right of police and security officers and as the case of Klass concluded, but should be sufficiently limited to circumstances that are in the interest of a democratic society and the security and safety of the state:
Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.
Therefore as long as these aims are properly represented in the aims of the security forces and the legislation and all appropriate requirements of the statute is followed then there would be no breach of Article 8; however if the legislation was used disproportionately then there would be a breach.
SSHD’s Right to Deport under the ImA & the ECHR:
Under the ImA the SSHD has a right to deport in the interests of public interest, which as long as it is proportionate is fine under the ECHR; however if there is a possibility of a breach of Article 3 then there is certain obligations that have to be fulfilled. The ECHR and the case law stemming from the ECHR does not provide or ensure a right to enter reside or remain in any particular state. Therefore when one is dealing with asylum seekers, the Convention has nothing to say about a positive admittance to the particular state. Also in Chahal v UK the ECtHR emphasised that the state has the right ‘to control the entry, residence and expulsion of aliens’, therefore providing no right not to be deported from a state. The ECtHR did extend the domain of the article rights to include an extra-territorial ambit in Soering v UK. This case gave rise to an Article 3 claim. Soering ‘engages the responsibility of that State under the convention, where substantial grounds have been shown for believing that person concerned, if extradited [deported], faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country [country of origin]’. This landmark case’s extension of extra-territorial effect was confirmed in Cruz Varas v Sweden to include all forms of expulsion of non-citizens. Although under Article 8 there have been earlier cases, these cases revolve around whether it would be fair for the citizen of the state to follow their non-citizen spouse and if there is a possible breach on the behalf of the citizen then the non-citizen will gain leave to remain. Therefore the Soering Case set forth the rights of aliens of the state to use the conditions of their country of origin, and possible breaches there, to be imputed back to the state’s deportation order.
Therefore as in the Chahal Case where the asylum seeker was a suspected terrorist deportation was found to be a breach as this individual faced real danger of torture, even death on his return to his country of origin. This individual would have been a perfect example for the SSHD to deport under the ImA; however in line with the obligations of the ECHR deportation equates to a breach. In short this means that the right to deport on the basis of public interest cannot be used if there is a possibility that the ECHR’s obligations will be breached.
ATCSA & Article 5 of the ECHR:
The right to indefinitely detain without a trail those who cannot be deported would be a flagrant breach of Article 5. As in the Chahal Case determined detention with a view to deport can only last as long as the immigration and deportation proceedings are occurring. As soon as it has been decided that there is no deportation to occur the person must be released otherwise it is deprivation of liberty and a breach of Article 5. Also by not giving a trial this Article 5 would be breached because the right to a fair hearing and subsequent detention has been breached. Therefore the sections 21-23 of the ATCSA are in breach of Article 5 and are complete reversal on the decisions made in Chahal. The UK has entered a derogation from Article 5(1) in respect to the ATCSA and the detention of suspected terrorists who cannot be deported indefinitely without a trial in the interests of security of the UK, which was approved by both houses and is in force. This is in line with the HRA 1998 because it left the right for parliament to change and derogate from provisions as parliament is sovereign and not the ECHR. The authorization and precedent that the parliament used to validate this act was the case of R v Governor of Durham Prison ex parte Singh; whereby the Human Rights Act 1998 (Designated Derogation) Order 2001 stated:
Although the UK can validate this derogation is it proportional because these persons are not being given a trial therefore there is only a suspicion that they are terrorists, it would be different if a court had determined that they were guilty of terrorist activities, i.e. to simply indefinitely detain someone over a suspicion is not proportionate, but to detain somebody who had be proven to be guilty of the suspicion and keep them detained until the threat is over is proportionate.
In the case of A(FC) v Secretary of State for the Home Department the House of Lords found that these provisions were not proportionate on the grounds that was put forth against the Derogation Order as it refers only to non-citizens and does not also include citizens of the UK, of which 1000+ UK citizens had undergone training in collusion with Al-Queda; in addition to the breach of Article 5(1). Therefore to be proportionate the legislation, those arguing against the Derogation Order, stated in respect to detaining suspected terrorists there needed to be a law that will:
- 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.
Therefore the powers within the ATCSA were a typical example of the UK trying to derogate from basic human rights, as was seen in respect to IRA terrorists; however with the incorporation of the ECHR this has become harder. The actions taken by parliament and the powers given to the SSHD far outweigh a proportionate response to possible Al-Queda terrorist and seem to be an excuse to detain asylum seekers on mere suspicion, which would be disproved in a court of law. This has been seen in the A(FC) Case and the Lord Newton Report, which recommends:
That the Part 4 powers in the Anti-Terrorism, Crime and Security Act 2001 (ATCS Act) should be replaced by new legislation. These powers allow for the indefinite detention of foreign terrorist suspects pending deportation. The Report recommends that new powers should be developed which would apply to both British and foreign nationals and which will not require a derogation from the European Convention on Human Rights.
Therefore like this discussion has proposed, which is backed up by the Newton Report, the A(FC) Case, human rights organizations such as Amnesty International, Liberty and Human Right Watch.
However the government still supports the needs for such draconian acts, which can be seen in their response to the Newton Report:
The government believes that these powers continue to be an essential part of our defences against attack. This paper sets out our reasons for this belief, and the safeguards we have put in place to ensure that the powers are used properly and only where strictly necessary.
The fact that such beliefs are present in parliament is shocking and belongs in the past, this discussion forwards and supports the view of that the provisions of the ATCSA are disproportionate and as the Joint Human Rights Committee Sixth Report 2003-2004 argues:
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