The UK's Anti-Terror Legislation and the House of Lords: The Battle Continues

Extract

Having struck the first significant blow in the battle against the UK government to protect the human rights of suspected terrorists with its decision in Belmarsh , ¹ it is arguable that the House of Lords’ decision in A (FC) and others (FC); A (FC) and others v Secretary of State for the Home Department (‘Torture’) constitutes a more muted victory. ² This case further examined the human rights implications of Part 4 of the Anti-Terrorism, Crime and Security Act 2001 (ATCSA). ³ The House of Lords was asked to adjudicate upon whether ‘evidence which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a third state without the complicity of the British authorities’ ⁴ (‘third-party torture evidence’), was admissible before the Special Immigration Appeals Commission (SIAC) during s.25 ATCSA proceedings. Under s.25 ATCSA, SIAC was empowered to hear appeals from non-UK nationals who had been certified by the Home Secretary under s.21 ATCSA as individuals whom he reasonably believed to be a risk to national security and whom he reasonably suspected to be international terrorists. If certified individuals could not be returned to their home country, s.23 permitted the UK authorities to detain them indefinitely. ⁵ In light of the Belmarsh decision, which found this power of detention to be contrary Article 5 of the European Convention of Human Rights (ECHR) as incorporated into UK law by the Human Rights Act 1998, ⁶ Part 4 of the ATCSA was repealed with the enactment of the Prevention of Terrorism Act 2005 (PTA). ⁷ However, the current appeals, by 10 individuals (Ajouaou, Abu Rideh, A, B, C, D, E, F, G and H) who had been certified under s.21, were allowed to continue pursuant to s.16(4) PTA which permits the continuation of any appeals which had been commenced prior to the date of the repeal.