Commentary on Sections Suspected international terrorists Sections 21 to 23
72.These three sections extend the application of existing detention powers under the Immigration Act 1971 (the “1971 Act”) to cases where the Secretary of State is seeking to remove a suspected international terrorist but where such removal is not currently possible.
73.Although there are powers to detain people where the intention is to remove them, case law in the UK is that if removal is not going to be possible within a reasonable period of time, detention is unlawful. Similarly, the European Court of Human Rights has established that the relevant part of Article 5(1)(f) of the European Convention on Human Rights (ECHR) permits the detention of a person only in circumstances where action is being taken with a view to deportation.
74.The Government has concluded that, following the events of 11 September 2001 in the USA, there is a heightened threat from international terrorists, and that a public emergency exists in the UK. It has further concluded that in these circumstances action in the form set out in sections 21 to 23 needs to be taken to safeguard national security against the threat posed by suspected international terrorists whom the UK wishes to but cannot remove.
75.Sections 21 to 23 enable suspected international terrorists to be detained in circumstances where either a legal impediment derived from an international obligation or a practical consideration prevents removal. In parallel with these provisions, the UK has on 18 December 2001 notified the Secretary General of the Council of Europe of a derogation from Article 5 of the ECHR (right to liberty and security) to the extent necessary to ensure that the measures contained in sections 21 to 23 are not in breach of our obligations under the ECHR. Article 15 of the ECHR permits a derogation from Article 5 in a time of public emergency to the extent strictly required by that emergency.
76.The Human Rights Act (Designated Derogation) Order 2001 was made under powers in section 14(1) and (6) of the Human Rights Act 1998 on 11 November 2001 in anticipation of the making of a proposed derogation. It was approved by resolutions passed by each House of Parliament following debates on 19 November. This Order means that the Convention rights under the Human Rights Act 1998 have effect subject to the proposed derogation.