Doc. 10527

26 April 2005

Anti-terrorism legislation in the United Kingdom

Motion for a recommendation

presented by Mr McNamara and others

1.       In the past five years, the United Kingdom has introduced three major pieces of legislation aimed at the prevention of terrorism: the Terrorism Act 2000; the Anti-terrorism, Crime and Security Act 2001, which amended and extended the 2000 Act; and the Prevention of Terrorism Act 2005, which repealed the indefinite detention provisions of the 2001 Act and replaced them with a system of “control orders”.

2.       The 2005 Act was introduced in response to a decision of the UK House of Lords, acting in its judicial capacity. This decision (in the case of A (FC) and others (FC) v. Secretary of State for the Home Department, [2004] UKHL 56) found the system of indefinite detention established by the 2001 Act to be in unlawful violation of the principle of proportionality in relation to Articles 15 (concerning derogations) and 14 (the prohibition on discrimination) of the European Convention on Human Rights.

3.       The 2005 Act was the subject of enormous public and parliamentary controversy. It empowers the Home Secretary (or, if the order involves obligations incompatible with Article 5 (right to liberty and security), the courts on the application of the Home Secretary) to make individuals subject to “control orders” imposing certain obligations. These may include restrictions on the subject’s association and communication with others; restrictions on the subject’s place of residence or on the persons whom s/he may give access to his/her place of residence; prohibitions or restrictions on movements to, from or within the UK; requirements to allow specified persons to have access to and to search the subject’s place of residence, and to remove objects found there; and requirements to cooperate with arrangements for monitoring of movements, communications and other activities (e.g. electronic tagging) or to report to a specified person at specified times and places.

4.       Clearly, implementation of control orders has potentially serious human rights consequences, notably in relation to the right to respect for private and family life and to home and correspondence (Article 8), the right to liberty and security and the right to freedom of movement (Article 12 of the ICCPR). Whilst the UK has now withdrawn the derogation to Article 5 made necessary by the 2001 Act, the 2005 Act foresees the possibility of further derogations in future, should circumstances so require.

5.       An important issue concerns supervision of control orders by the courts. For control orders which do not impose obligations incompatible with Article 5 (no other Article is mentioned in this respect) and which do not involve decisions of the Home Secretary which are “obviously flawed”, the ultimate role of the court is confined to posterior judicial review of the Home Secretary’s decisions and its powers limited to quashing the order, quashing certain of its obligations, directing the Home Secretary to revoke the order or modify its obligations or deciding that the order is to continue in force. Furthermore, it is not clear from the Act whether the Home Secretary’s subsequent power to renew an order, which may be done with modifications to the obligations it imposes, is also subject to court supervision.

6.       Given these considerations, the Assembly resolves to study and report on the United Kingdom’s legislative responses to the threat of terrorism, including issues relating to their implementation, and to make appropriate recommendations.

Signed (see overleaf)

Signed ¹:

McNAMARA, Kevin, United Kingdom, SOC

ALEVRAS, Athanasios, Greece, SOC

BINDIG, Rudolf, Germany, SOC

CILEVIČS, Boriss, Latvia, SOC

EKER, Mehdi, Turkey, EPP/CD

EXNER, Václav, Czech Republic, UEL

FEDOROV, Valeriy, Russia, EDG

GREBENNIKOV, Valery, Russia, EDG

HÄGG, Carina, Sweden, SOC

KRSTEVSKI, Zoran, "the former Yugoslav Republic of Macedonia", LDR

LEUTHEUSSER-SCHNARRENBERGER, Sabine, Germany, LDR

LINTNER, Eduard, Germany, EPP/CD

RAPSON, Syd, United Kingdom, SOC

RUSTAMYAN, Armen, Armenia, SOC

VAREIKIS, Egidijus, Lithuania, EPP/CD

¹        SOC: Socialist Group

      EPP/CD: Group of the European People’s Party

      LDR : Liberal, Democratic and Reformers’ Group

      EDG: European Democratic Group

      UEL: Group of the Unified European Left

      NR: not registered in a group