UK: Amnesty International makes submission to House of Lords opposing indefinite detention
Amnesty International has taken the extremely rare decision of lodging written submissions with the House of Lords, the
UK's highest court, ahead of a case the organization describes as of paramount importance to human rights in the UK.
Next week, from Monday 4 October 2004, an Amnesty International delegate will also be observing the proceedings before
the Appellate Committee of the House of Lords (the House of Lords) in the case of A and others v the Secretary of State
for the Home Department.
The case concerns the powers of the Home Secretary to certify -- and subsequently indefinitely detain without charge or
trial -- non-deportable foreign nationals as "suspected international terrorists" and a "national security risk".
Given the extreme importance of this case, Amnesty International sought and was granted leave to make written
submissions to the Law Lords. The organization rarely seeks leave to intervene in legal proceedings, particularly before
national courts. It does so only when the case raises issues of central importance to the protection of human rights,
and when the organization considers that the particular expertise of Amnesty International might assist the Court. The
organization believes that this is such a case.
In its written submissions, Amnesty International has invited the nine Law Lords hearing this appeal to find that
indefinite detention under Part 4 of the Anti-terrorism, Crime and Security Act 2001 (ATCSA) is criminal for all intents
and purposes. That it, as such, violates the most fundamental fair trial rights guaranteed in international standards,
including treaty provisions by which the UK is bound. In addition, the organization has invited the Law Lords to find
that the admissibility of, and reliance on, evidence obtained as a result of torture or other ill-treatment (of a third
party) in ATCSA proceedings is in violation of the UK's obligations under international law.
Since internment in these circumstances is inconsistent with the right to liberty guaranteed under international human
rights treaty provisions by which the UK is bound, the UK government has derogated from (i.e. temporarily suspended) its
obligations under these provisions.
The UK remains the only country that has derogated from the (European) Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR) in the aftermath of 11 September 2001. In particular, the UK has derogated from Article 5(1)
of the ECHR and Article 9 of the International Covenant on Civil and Political Rights.
Amnesty International has closely monitored the operation of the measures related to administrative detention under Part
4 of the ATCSA since it was implemented. As part of this monitoring process, a delegate of Amnesty International
attended a number of the open hearings, relating to the Appellants' detention, before the Special Immigration Appeals
Commission and, before the Court of Appeal, as well as the open sessions of the proceedings concerning the challenge
against the derogation brought in July 2002.
The organization believes that the emergency provisions of the ATCSA are inconsistent with international human rights
law and standards, including treaty provisions by which the UK is bound. Amnesty International has continued to be
concerned about serious human rights violations that have taken place in the UK as a consequence of the implementation
of the ATCSA since its enactment on 14 December 2001.
Amnesty International has retained Edward Fitzgerald QC, Phillippa Kaufmann and Ruth Brander, barristers at Doughty
Street Chambers, who authored the organization's written submissions. Amnesty International is also represented by
Richard Stein, solicitor, Leigh, Day & Co. solicitors.
The organization's written submissions will be available on Amnesty International's website on Monday 4 October. In the
meantime, anyone can access the material that the organization has already published regarding its concern about the
In the aftermath of the 11 September 2001 attacks in the United States of America, the UK government asserted that the
threat posed to the UK by the al-Qa'idanetwork amounted to "a public emergency", making it necessary for the authorities
to enact new "anti-terrorist" laws. As a result the ATCSA was passed by the UK Parliament and enacted on 14 December
2001. Part 4 of the ATCSA allows the indefinite detention without charge or trial of foreign nationals, who cannot be
deported or removed from the UK, principally on the basis of secret evidence. In addition, evidence extracted under
torture of a third party can be adduced and relied upon in proceedings under the ATCSA.
The law effectively allows non-UK nationals to be treated as if they have been "charged" with a criminal offence,
"convicted" without a trial, and "sentenced" to an open-ended term of imprisonment. The result is a shadow criminal
justice system for non-UK nationals which fails to meet international standards for a fair trial. In addition, in light
of the fact that these powers can only be applied to non-UK nationals, Amnesty International considers that Part 4 of
the ATCSA violates the prohibition of discrimination enshrined in international law.
As of today, 11 foreign nationals are being detained under the ATCSA as "suspected international terrorists". They are
held in high-security facilities under severely restricted regimes.
Amnesty International opposes detention under Part 4 of the ATCSA. It is detention ordered by the executive, without
charge or trial, for an unspecified and potentially unlimited period of time, principally on the basis of secret
evidence which the people concerned have never heard or seen, and which they were, therefore, unable to effectively
challenge. Amnesty International has repeatedly expressed concern that Part 4 of the ATCSA has created a shadow criminal
justice system devoid of a number of crucial components and safeguards present in both the ordinary criminal justice
system and national procedures for the determination of refugee status. The human rights violations that have taken
place in the course of the ATCSA's enforcement over nearly three years have deepened Amnesty International's concern in
this respect. The organization continues to call on the UK government to release all persons detained under the ATCSA
unless they are charged with a recognizably criminal offence and tried by an independent and impartial court in
proceedings which meet international standards of fairness.