Anti-terrorism, Crime and Security Act 2001

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The Anti-Terrorism, Crime and Security Act 2001 or ATCSA is a British Act of Parliament introduced as emergency legislation after the September 11, 2001 attacks in New York. It was criticised in the press at the time as being opportunistic and mainly containing powers that were rejected from the Terrorism Act 2000.

Contents

Part IV of the ATCSA

One of the more notable powers in ATCSA was set out in Part IV of the Act which permitted the detention of non-British citizens who the Home Secretary reasonably believed to be a terrorist, and whose presence in the United Kingdom is a threat to national security. "Terrorist" for the purposes of Part IV of the ATCSA meant a person who is or has been concerned in acts of "international terrorism", or belongs or has links to an international terrorist group. "Terrorism" has the meaning set out in section 1 of the Terrorism Act 2000.

Non-British citizens in the jurisdiction suspected of involvement in terrorism will ordinarily be prosecuted with criminal offences associated with those activities. If there is insufficient admissible evidence to prosecute them such persons are normally deported using powers under the Immigration Act 1971 which permits the deportion of persons who are a threat to national security. However a ruling by the European Court of Human Rights in the case of Chahal v United Kingdom in 1996, prohibited the deportation of persons to another country if there were substantial grounds for believing that the person would be subjected to torture or inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights.

The justification offered for enacting the powers set out Part IV of the ATCSA was that there were foreigners in the United Kingdom who were reasonably suspected of being involved in international terrorism who could not be prosecuted because there was insufficient admissible evidence to sustain a prosecution. At the same time the presence of these individuals in the United Kingdom was a risk to national security but they could not be deported to their country of origin because of a fear that they would be tortured. Furthermore they could not be deported to any other third country because no other country was willing to admit them. Faced with this conjunction of legal and security problems the government argued that the only solution was to detain such persons until such time as the person no longer presented a risk to national security, or some other third country was willing to take them.

Controversy and court challenges

However Article 5(1) of the European Convention on Human Rights sets out a very limited set of specific circumstances in which a state may deprive persons of their liberty. These include the detention of a person with a view to bringing them before a court on charges of having committed a criminal offence; and the detention of an individual with a view to deportation. The powers of detention in the ATCSA were not grounded upon reasonable suspicion of a criminal offence with a view to prosecution, nor were they grounded upon detaining persons with a view to deportation. Therefore the powers were incompatible with the European Convention on Human Rights. In recognition of this, the United Kingdom purported to "derogate" (i.e. opt out of) from its obligations under Article 5 to the extent that the detention of individuals in the circumstances permitted by the ATCSA were incompatible with the UK's obligations under Article 5(1) of the Convention. Article 15 of the Convention only permits a contracting party to derogate from its obligations under the Convention "in time of war or public emergency threatening the life of the nation." Any derogating measures must be limited to "the extent strictly required by the exigencies of the situation", and must be consistent with the State's other obligations in International Law.

The powers of detention established by the ATCSA were extremely controversial, being essentially a form of executive authorised, indefinite preventative detention, exercised exclusively in relation to foreign persons of the Muslim faith. Between 2001 and 2005 the powers were used to detain seventeen men at HM Prison Belmarsh. The ATCSA 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 lawyers 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 a number of special advocates resigned from their positions.

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 IV 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 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.

Replacement of ATCSA

To this end Part IV 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 which may amount to house arrest. Unlike Part IV 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.

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