Prevention of Terrorism Act 2005
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The Prevention of Terrorism Act 2005 (c 2) was an Act of the
Parliament of the United Kingdom The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...
, intended to deal with the
Law Lords Lords of Appeal in Ordinary, commonly known as Law Lords, were judges appointed under the Appellate Jurisdiction Act 1876 to the British House of Lords, as a committee of the House, effectively to exercise the judicial functions of the House of ...
' ruling of 16 December 2004 that the detention without trial of eight foreigners (known as the 'Belmarsh 8') at HM Prison
Belmarsh His Majesty's Prison Belmarsh is a Category-A men's prison in Thamesmead, south-east London, England. The prison is used in high-profile cases, particularly those concerning national security. Within the prison grounds there is a unique unit c ...
under Part 4 of the Anti-terrorism, Crime and Security Act 2001 was unlawful, being incompatible with
European European, or Europeans, or Europeneans, may refer to: In general * ''European'', an adjective referring to something of, from, or related to Europe ** Ethnic groups in Europe ** Demographics of Europe ** European cuisine, the cuisines of Europe ...
(and, thus, domestic)
human rights law International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, ag ...
s. The Act allowed the
Home Secretary The secretary of state for the Home Department, otherwise known as the home secretary, is a senior minister of the Crown in the Government of the United Kingdom. The home secretary leads the Home Office, and is responsible for all national ...
to impose " control orders" on people who were suspected of involvement in
terrorism Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
, which in some cases may have derogated (opted out) from
human rights Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
laws. As yet, no derogating control orders have been obtained under s.4 of the relevant Act. In April 2006, a High Court judge issued a declaration that section 3 of the Act was incompatible with the right to a fair trial under article 6 of the European Convention on Human Rights. The system of control orders was described by Mr Justice Sullivan as an "affront to justice". The Act was repealed on 15 December 2011 by section 1 of the
Terrorism Prevention and Investigation Measures Act 2011 The Terrorism Prevention and Investigation Measures Act 2011 is an Act of the Parliament of the United Kingdom that abolished control orders and provides new powers to allow the Home Secretary to impose restrictions on the behaviour of a speci ...
.


Background

Despite having passed permanent counter-terrorism legislation only a year earlier, in the shape of the
Terrorism Act 2000 The Terrorism Act 2000 (c.11) is the first of a number of general Terrorism Acts passed by the Parliament of the United Kingdom. It superseded and repealed the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland (Emer ...
, the British government's response to the
September 11, 2001 attacks The September 11 attacks, commonly known as 9/11, were four coordinated suicide terrorist attacks carried out by al-Qaeda against the United States on Tuesday, September 11, 2001. That morning, nineteen terrorists hijacked four commercial ...
was to rush through emergency legislation to increase powers to deal with individuals suspected of planning or assisting terrorist attacks within the UK. A key feature of the Anti-terrorism, Crime and Security Act 2001 was that resident foreigners suspected of terrorism could be interned without trial, if they could not be deported to another country without breaching British human rights legislation (for example, if they might be subject to
torture Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogation for information, or intimidating third parties. Some definitions are restricted to acts c ...
or the
death penalty Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
in their native country). Several individuals were interned, mainly in Belmarsh prison, under these powers; they were free to leave, but only if they left the country, which some did. The government claimed that it had evidence against these individuals, but it was inadmissible in court – or unusable in open court due to security concerns – and was therefore reluctant to release this evidence. In December 2004 the Appellate Committee of the House of Lords (then the court of last resort in the UK) ruled that the 2001 act was contrary to the
Human Rights Act 1998 The Human Rights Act 1998 (c. 42) is an Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Con ...
, mainly because the powers only extended to foreign nationals, and were therefore unlawfully discriminatory. The legal ruling meant that the government's power to
intern An internship is a period of work experience offered by an organization for a limited period of time. Once confined to medical graduates, internship is used practice for a wide range of placements in businesses, non-profit organizations and gover ...
suspects under the 2001 act would expire on 14 March 2005. In response, the government urgently sought to pass a new act that would allow control orders to be issued against British citizens as well as foreign nationals, which would remove the breach of the Human Rights Act and therefore restore the legality of the internment.


Parliamentary passage


First stages

The Bill was introduced in the House of Commons on 22 February 2005 and allows the Home Secretary to make "control orders" for people he suspects of involvement in
terrorism Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
, including placing them under
house arrest In justice and law, house arrest (also called home confinement, home detention, or, in modern times, electronic monitoring) is a measure by which a person is confined by the authorities to their residence. Travel is usually restricted, if all ...
, restricting their access to
mobile telephone A mobile phone, cellular phone, cell phone, cellphone, handphone, hand phone or pocket phone, sometimes shortened to simply mobile, cell, or just phone, is a portable telephone that can make and receive calls over a radio frequency link whil ...
s and the
internet The Internet (or internet) is the global system of interconnected computer networks that uses the Internet protocol suite (TCP/IP) to communicate between networks and devices. It is a '' network of networks'' that consists of private, pub ...
and requiring that visitors be named in advance, so that they may be vetted by MI5. The Bill passed the Commons, despite a substantial rebellion by
backbench In Westminster and other parliamentary systems, a backbencher is a member of parliament (MP) or a legislator who occupies no governmental office and is not a frontbench spokesperson in the Opposition, being instead simply a member of the " ...
Labour Labour or labor may refer to: * Childbirth, the delivery of a baby * Labour (human activity), or work ** Manual labour, physical work ** Wage labour, a socioeconomic relationship between a worker and an employer ** Organized labour and the labour ...
Members of Parliament A member of parliament (MP) is the representative in parliament of the people who live in their electoral district. In many countries with bicameral parliaments, this term refers only to members of the lower house since upper house members of ...
(MPs), and was sent to the
House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
, which made several amendments, the most significant being the introduction of a sunset clause, so the Act would automatically expire in March 2006, unless it were renewed by further legislation, much like the Prevention of Terrorism Acts of 1974–1989. Other amendments included requiring the
Director of Public Prosecutions The Director of Public Prosecutions (DPP) is the office or official charged with the prosecution of criminal offences in several criminal jurisdictions around the world. The title is used mainly in jurisdictions that are or have been members o ...
to make a statement that a prosecution would be impossible before each individual control order could be issued, to require a judge to authorise each control order, requiring a review of the legislation by
Privy Councillors A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...
and restoring the "normal" burden of proof ("beyond a reasonable doubt"), rather than the weaker "balance of probabilities". The vote in the Lords was notable for being the first time
Lord Irvine Alexander Andrew Mackay Irvine, Baron Irvine of Lairg, (born 23 June 1940), known as Derry Irvine, is a Scottish lawyer, judge and political figure who served as Lord Chancellor under his former pupil barrister, Tony Blair. Education Irvine ...
, friend and mentor of
Tony Blair Sir Anthony Charles Lynton Blair (born 6 May 1953) is a British former politician who served as Prime Minister of the United Kingdom from 1997 to 2007 and Leader of the Labour Party from 1994 to 2007. He previously served as Leader of th ...
and recent
Lord Chancellor The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. The ...
, ever voted against the
Labour Labour or labor may refer to: * Childbirth, the delivery of a baby * Labour (human activity), or work ** Manual labour, physical work ** Wage labour, a socioeconomic relationship between a worker and an employer ** Organized labour and the labour ...
government.


Dispute over amendments

The Commons considered the Lords' amendments on 10 March and rejected most of them. The Bill was exchanged between the two chambers several more times that parliamentary day, which extended well into 11 March and led to the longest sitting of the House of Lords in its history, of over 30 hours. (Parliamentary custom dictates that the parliamentary day continues until the House is adjourned. Therefore, although it was midnight March 11 outside the House of Commons, inside it was still March 10.) That the Bill was " ping-ponged" between both houses was evidence of an unusual
constitutional crisis In political science, a constitutional crisis is a problem or conflict in the function of a government that the political constitution or other fundamental governing law is perceived to be unable to resolve. There are several variations to this d ...
, notable because the urgency of the legislation – the previous powers to detain the individuals in HMP Belmarsh and elsewhere were due to expire on 14 March 2005 – meant that the
Parliament Acts 1911 and 1949 The Parliament Acts 1911 and 1949 are two Act of Parliament, Acts of the Parliament of the United Kingdom, which form part of the constitution of the United Kingdom. Section 2(2) of the Parliament Act 1949 provides that the two Acts are to be St ...
, the usual device to handle situations where the Commons and Lords cannot agree on a measure, could not be invoked in order to acquire Royal Assent without the consent of the upper house.


Compromise

Eventually, a compromise was agreed, with both sides claiming victory: the opposition parties conceded all their amendments for the promise of a review of the legislation a year later. The Bill received Royal Assent later that day, and the first control orders, to deal with the ten suspects previously interned in HMP Belmarsh, were issued by Charles Clarke, the Home Secretary, immediately. Some critics were still unhappy with the compromise reached in the evening of 11 March, pointing out that an Act that removes the 790-year-old principle of ''
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'', codified in
Magna Carta (Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the ...
, should not have been rushed through Parliament in the first place and that a review leaves it to the opposition to defeat the legislation, unlike a sunset clause, which would require the government to prove that these extraordinary powers were still a necessary and proportionate response to the threat of terrorism in the UK; comparisons were made with the detention provisions of
South Africa South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring countri ...
's
apartheid Apartheid (, especially South African English: , ; , "aparthood") was a system of institutionalised racial segregation that existed in South Africa and South West Africa (now Namibia) from 1948 to the early 1990s. Apartheid was ...
-era Terrorism Act No 83 of 1967. Few critics claimed that the terrorist threat was not real, merely that these powers were not the best way to address that threat, that arbitrary powers are more likely to lead to a miscarriage of justice and that prosecution in a court of law would be a better solution. The most commonly presented counter-argument was that protecting British citizens' freedom to live and go about their lives without fear of terrorism is more important than the
civil liberties Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
of suspected terrorists.


Restrictions permitted by the Act

Control orders could contain restrictions that the Home Secretary or a court "considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity", including: * restrictions on the possession of specified articles or substances (such as a mobile telephone); * restrictions on the use of specified services or facilities (such as internet access); * restrictions on work and business arrangements; * restrictions on association or communication with other individuals, specified or generally; * restrictions on where an individual may reside and who may be admitted to that place; * a requirement to admit specified individuals to certain locations and to allow such places to be searched and items to be removed therefrom; * a prohibition on an individual being in specified location(s) at specified times or days; * restrictions to an individual's freedom of movement, including giving prior notice of proposed movements; * a requirement to surrender the individual's
passport A passport is an official travel document issued by a government that contains a person's identity. A person with a passport can travel to and from foreign countries more easily and access consular assistance. A passport certifies the personal ...
; * a requirement to allow the individual to be
photograph A photograph (also known as a photo, image, or picture) is an image created by light falling on a photosensitive surface, usually photographic film or an electronic image sensor, such as a CCD or a CMOS chip. Most photographs are now create ...
ed; * a requirement to cooperate with
surveillance Surveillance is the monitoring of behavior, many activities, or information for the purpose of information gathering, influencing, managing or directing. This can include observation from a distance by means of electronic equipment, such as c ...
of the individual's movements or communications, including electronic tagging; * a requirement to report to a specified person and specified times and places.


Opposition to the Act

Measures in the Act were opposed by a number of human rights organisations, including
Amnesty International Amnesty International (also referred to as Amnesty or AI) is an international non-governmental organization focused on human rights, with its headquarters in the United Kingdom. The organization says it has more than ten million members and sup ...
,
Human Rights Watch Human Rights Watch (HRW) is an international non-governmental organization, headquartered in New York City, that conducts research and advocacy on human rights. The group pressures governments, policy makers, companies, and individual human r ...
,
JUSTICE Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
and
Liberty Liberty is the ability to do as one pleases, or a right or immunity enjoyed by prescription or by grant (i.e. privilege). It is a synonym for the word freedom. In modern politics, liberty is understood as the state of being free within society fr ...
. Criticism of the Act included complaints about the range of restrictions that could be imposed, the use of closed proceedings and special advocates to hear secret evidence against the detainee, and the possibility that evidence against detainees may include evidence obtained in other countries by torture.


Renewal

Due to the extremely swift passage of the Act through Parliament (18 days between introduction and Royal Assent), the Home Secretary Charles Clarke had agreed to table legislation in Spring 2006 in order to allow Parliament to consider amendments to the Act following the first report of the Independent Reviewer, The Lord Carlile of Berriew, QC. Lord Carlile reported on 2 February but the Home Secretary announced that he would not be introducing fresh legislation, given that the Terrorism Bill was already under consideration. Instead, the government indicated that it would allow amendment to the Act in consolidating counter-terrorism legislation scheduled for 2007. In any event, sections 1–9 of the Act were subject to annual renewal by affirmative resolution of both Houses of Parliament. Those provisions were renewed in 2007 following votes of the Commons (22 February 2007) and the Lords (5 March 2007). The provisions were again renewed on 11 March 2009.


Incompatibility with human rights

In April 2006, in his judgment in the case of ''Re MB'', Mr Justice Sullivan issued a declaration under section 4 of the
Human Rights Act 1998 The Human Rights Act 1998 (c. 42) is an Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Con ...
that section 3 of the Prevention of Terrorism Act 2005 was incompatible with the right to fair proceedings under article 6 of the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
. Mr Justice Sullivan held: However, on 1 August 2006, the Court of Appeal reversed this judgement (in part). They agreed that MB's Article 5 rights had been breached, but said that it did not infringe on his Article 6 rights. On the point of particular Convention rights being breached, the court made a particular distinction. Following ''Secretary of State for the Home Department v JJ'' the House of Lords held that the restrictions imposed within the control would be open to challenge on the basis of incompatibility, with focus on Art. 8 (right to privacy and family life), Art. 10 (freedom of speech) and Art. 11 (freedom of assembly). In the case of JJ, the House of Lords drew an analogy between a prisoner in an open prison, and a suspected terrorist under a control order. Consequently, it was viewed as an anomaly for the Home Secretary to enforce harsher conditions on an individual who has not been convicted of any crime, in comparison with an open prisoner who enjoys freedom of association. The court brought up the example of the detainee being in a "prison with three walls", the fourth wall of course being that of voluntary deportation, which is a derogation from Art. 5 under Art. 5(1)(g) of the ECHR (detention with a view to deport is compatible). However, in reality, such a decision is highly unlikely, as the detainee would be unwilling to return home and be subjected to torture and/or inhuman/degrading treatment.


See also

* Terrorism Act 2006 * Terrorism Acts *
Human rights in the United Kingdom Human rights in the United Kingdom concern the fundamental rights in law of every person in the United Kingdom. An integral part of the UK constitution, human rights derive from common law, from statutes such as Magna Carta, the Bill of Rights ...


References


External links


The Act, the Bill for the Act and the explanatory notes to the Act

*
The initial text of the Bill
from 22 February 2005 (
PDF Portable Document Format (PDF), standardized as ISO 32000, is a file format developed by Adobe in 1992 to present documents, including text formatting and images, in a manner independent of application software, hardware, and operating systems. ...
)
Explanatory notes
to the Prevention of Terrorism Act 2005.


Government and Parliamentary reports and debates






Report on Part IV powers
by
Lord Carlile of Berriew Alexander Charles Carlile, Baron Carlile of Berriew, (born 12 February 1948) is a British barrister and crossbench member of the House of Lords. He was the Member of Parliament (MP) for Montgomeryshire from 1983 to 1997. Early life and career ...
, QC (PDF)
Parliamentary Joint Committee on Human Rights' report on the Bill
dated 23 February 2005
International Terrorism: The Threat
Labour party briefing on the Bill, paper one
International Terrorism: The Government's Strategy
Labour party briefing on the Bill, paper two
International Terrorism: Reconciling Liberty and Security - The Government's Strategy to Reduce the Threat
Labour party briefing on the Bill, paper three
International Terrorism: Protect and Prepare
Labour party briefing on the Bill, paper four
First Commons debate
after the Lords' Third Reading, 10 March 2005
Second Commons debate
after the Lords' Third Reading, 11 March 2005 (after midnight, but still in the 10 March Parliamentary session)
Third Commons debate
after the Lords' Third Reading, 11 March 2005 (daytime on 11 March, but still in the 10 March Parliamentary session)
Backbench rebellion in the final Commons vote

Home office review of the Act in 2006


News reportage


BBC News article on the Law Lords' ruling
16 December 2004
BBC article reporting the passage of the Act
11 March 2005
BBC article explaining the controversy
12 March 2005

12 March 2005
Islamic Human Rights Commission - Britain: An Outpost of Tyranny
* Jean-Claude Paye

Monthly Review The ''Monthly Review'', established in 1949, is an independent socialist magazine published monthly in New York City. The publication is the longest continuously published socialist magazine in the United States. History Establishment Following ...
, November 2005.


Opposition groups


Joint briefing paper to House of Lords
from
JUSTICE Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
and the
International Commission of Jurists The International Commission of Jurists (ICJ) is an international human rights non-governmental organization. It is a standing group of 60 eminent jurists—including senior judges, attorneys and academics—who work to develop national and inte ...
. (PDF)
Briefing paper to the House of Lords
from
Liberty Liberty is the ability to do as one pleases, or a right or immunity enjoyed by prescription or by grant (i.e. privilege). It is a synonym for the word freedom. In modern politics, liberty is understood as the state of being free within society fr ...
(PDF)
Amnesty International press release
dated February 28, 2005
Human Rights Watch commentary
dated 1 March 2005


Legal Analysis



{{DEFAULTSORT:Prevention Of Terrorism Act 2005 United Kingdom Acts of Parliament 2005 Terrorism laws in the United Kingdom