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THE PREVENTION OF TERRORISM ACT 2005
SUMMARY OF MAIN PROVISIONS AND COMMENTARY
origin of the act
The Prevention of Terrorism Act 2005 (PTA) came into being in response to the ruling by the House of Lords (the UK’s supreme court) that it was discriminatory to detain without trial foreign nationals suspected of involvement in terrorism who could not be returned to their country of origin for fear of torture or a threat to their life [A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) 16 December 2004 [2004] UKHL 56].
Instead of either releasing the 13 detainees affected or putting them on trial, the government introduced the PTA so that it could release the detainees but control their activities, and to remove the discriminatory element by making the law applicable to everyone. Never before in peacetime have British citizens been made subject to such formidable powers of state compulsion.
The effects of the PTA are such that persons affected by it will have less rights than prisoners. The Act also makes serious inroads into the right to legal representation. It seriously compromises the human rights of everyone in the UK. It has achieved the aim of those engaged in terrorism against this country, by undermining democracy and respect for the rule of law. It is a disaster and it will inevitably, like every earlier piece of ill-thought-out and hastily-passed “emergency” legislation, lead to miscarriages of justice and create martyrs to the cause.
control orders
The Act 2005 allows for the imposition of Control Orders “for purposes connected with protecting members of the public from a risk of terrorism” [s. 1(1)].
A Secretary of State can impose such an order in every case except those that affect a person’s right to liberty under Article 5 of the European Convention on Human Rights (ECHR) [s. 1(2)(a)]. In those cases, only the High Court [Schedule, paragraph 10] can impose an order [s. 1 (2)(b)].
Control Orders can place any obligations on people that the Secretary of State or High Court considers necessary “for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity” [s. 1 (3)].
These obligations may include:
“(a) a prohibition or restriction on his possession or use of specified articles or substances;
(b) a prohibition or restriction on his use of specified services or specified facilities, or on his carrying on specified
activities;
(c) a restriction in respect of his work or other occupation, or in respect of his business;
(d) a restriction on his association or communications with specified persons or with other persons generally;
(e) a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence;
(f) a prohibition on his being at specified places or within a specified area at specified times or on specified days;
(g) a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom;
(h) a requirement on him to comply with such other prohibitions or restrictions on his movements as may be imposed, for a period not exceeding 24 hours, by directions given to him in the specified manner, by a specified person and for the purpose of securing compliance with other obligations imposed by or under the order;
(i) a requirement on him to surrender his passport, or anything in his possession to which a prohibition or restriction imposed by the order relates, to a specified person for a period not exceeding the period for which the order remains in force;
(j) a requirement on him to give access to specified persons to his place of residence or to other premises to which he has power to grant access;
(k) a requirement on him to allow specified persons to search that place or any such premises for the purpose of ascertaining whether obligations imposed by or under the order have been, are being or are about to be contravened;
(l) a requirement on him to allow specified persons, either for that purpose or for the purpose of securing that the order is complied with, to remove anything found in that place or on any such premises and to subject it to tests or to retain it for a period not exceeding the period for which the order remains in force;
(m) a requirement to allow himself to be photographed;
(n) a requirement on him to co-operate with specified arrangements for enabling his movements, communications or other activities to be monitored by electronic or other means;
(o) a requirement on him to comply with a demand made in the specified manner to provide information to a specified person in accordance with the demand;
(p) a requirement on him to report to a specified person at specified times and places.” [s. 1(4)]
This list is not exhaustive, but it demonstrates the degree to which the state can interfere with people’s lives by, for example, dictating their occupation, placing them under house arrest, controlling their access to telecommunications or the internet, determining whom they may meet or communicate with, restricting their freedom of movement, and so on. Many aspects of human rights are potentially affected, as are the rights of family members of those placed under Control Orders. Yet only where liberty is concerned is the decision to make an order taken by a court. In all other cases the Secretary of State, in other words a politician, can exercise these draconian powers.
definition of terrorism
“Terrorism-related activity” includes:
§ the commission, preparation, or instigation of acts of terrorism
§ facilitating such acts
§ encouraging such acts
§ supporting or assisting those who are engaged in such acts.
According to the Act, it is “immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally”. [s. 1 (9)]
“Terrorism” is defined as the use or threat of action designed to influence the government or to intimidate the public or a section of the public the purpose of advancing a political, religious or ideological cause. It includes
§ serious violence against a person
§ serious damage to property
§ endangering the lives of others
§ serious risk to public health or safety
§ serious interference with or disruption of any electronic system
§ the use or threat to use firearms or explosives.
This definition applies to all countries, peoples and governments throughout the world. [s. 1 (1) to (4), Terrorism Act 2000 and PTA 2005 s. 15 (1)]
These definitions are extremely wide. In theory, someone who encourages a friend to blow up a telephone kiosk in order to draw attention to their campaign for free telephone calls would be defined as a terrorist, even if no loss of life was involved. A hacker who disseminates a virus in order to call for the repeal of the PTA 2005 would also fall within the definition.
duration of control orders
Control Orders imposed by the Secretary of State (known as “non-derogating control orders” because the government considers they do not require a derogation from the ECHR unless they involve the right to liberty) last for 12 months and can be renewed for further periods of 12 months.
“Derogating Control Orders” imposed by the court last for 6 months and can be renewed for further periods of 6 months [s. 4 (8) and (9)].
grounds for control orders
The Secretary of State must have “reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity” and must consider it necessary to make an order to protect the public from the risk of terrorism [s. 2 (1)]. Since the Secretary of State is unlikely to have personal knowledge of any suspect’s activities, he or she will have to rely on intelligence reports. Since the suspect will not be entitled to see these reports (see disclosure below), it will be impossible to challenge the basis on which Control Orders are imposed.
According to the Act, “It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion relate.” [s. 2 (9)] In other words, there is no requirement for there to be any logical connection between what the Secretary of State suspects and the restrictions he or she imposes on a person.
It is difficult to imagine a lower threshold to such significant powers.
supervision of control orders by the courts
One of the most significant changes made to the Prevention of Terrorism Bill by the Opposition was the insertion of a new Clause (now Section) 3, which requires the Secretary of State to seek the permission of the High Court to make a Control Order, unless he or she deems it necessary to impose an order without waiting for permission, in which case the court must review the order within 7 days.
However, the only grounds on which the court can refuse or overturn an order is that the Secretary of State’s grounds for seeking or making the order are “obviously flawed”. The court can also quash any particular restriction or obligation imposed on the suspect by the order.
If the court permits or confirms the order, the suspect must be given an opportunity within a further 7 days to make representations about any direction already given and the making of any further directions [s. 3 (7)]. At this hearing, the court’s role is again limited to considering whether the decision is “obviously flawed” or a restriction or obligation is unjustified.
The standards that the court must apply to its adjudication are those used in cases of judicial review [s. 3 (11)], which are, broadly speaking, legality, rationality, procedural propriety, compatability with the Human Rights Act, and proportionality.
control orders made by the court
If the Secretary of State wishes to impose a “derogating Control order”, i.e. one that affects the suspect’s liberty, he or she must apply to the High Court, which must immediately hold a hearing to determine whether such an order should be made [s. 4 (1)(a)]. This hearing can be held in the absence of the suspect, who need not be told it is taking place and has no right to make representations against it [s. 4 (2)].
Before imposing an order, the court must be satisfied that
§ there is material capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity
§ there are reasonable grounds for believing an order to be necessary to protect members of the public from a risk of terrorism
§ the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the ECHR, and
§ that the order includes provisions which come within the terms of that derogation.
If the court decides to impose an order, it must then hold a full hearing to decide whether to confirm the order [s. 4 (1)(b)].
Derogating Control Orders last for 6 months and can be renewed for further periods of 6 months [s. 4 (8) and (9)].
As with non-derogating orders, there is no requirement for there to be any connection between the person’s alleged involvement in terrorism and the restrictions imposed by a derogating Control Order [s. 4 (13)].
arrest pending a control order
A person can be arrested and detained for 48 hours (extendable by a further 48 hours by the court) in order to make sure that he or she is available to be given notice of a Control Order. Any such detention is deemed to be legal and need not comply with Article 5 of the ECHR so long as the UK has made the requisite derogation from Article 5. [s. 5]
revocation and modification of control orders
The Secretary of State can revoke or modify a non-derogating control order at any time [s. 7 (1) and (2)], except that he or she cannot change a non-derogating order into a derogating order [s. 7 (3)].
A person who is the subject of a control order can apply at any time to the court for the revocation or modification of a control order [s. 4 (4)].
appeal against a control order
A person can appeal against a non-derogating control order or any of its provisions [s.10 (1)]. However, the court can only uphold an appeal if the Secretary of State’s grounds for making an order or any of the provisions of the order are “flawed” [s. 10 (4)]. Any other appeal must be dismissed [s. 10 (8)].
The only grounds on which a decision made on appeal can itself be appealed is on a point of law [s. 11 (3)].
Neither control orders nor derogation matters can be challenged in any other legal proceedings except hearings to do with such matters or appeals over such matters [s.11 (1)]. This provision effectively removes such matters from the overall jurisdiction of judicial review, in which any decision of a public body can be challenged. It also removes such matters from challenge under the Human Rights Act.
When a control order or any of its terms is quashed, it “does not prevent the Secretary of State from exercising any power of his to make a new control order to the same or similar effect or from relying, in whole or in part, on the same matters for the purpose of making that new order” [Schedule, paragraph 8]. In other words, the right of appeal is virtually meaningless. It is this provision above all that brings the law into disrepute.
rules of procedure
Under s. 11 and the Schedule to the Act, the Lord Chancellor can lay down rules of procedure for court hearings, which must be approved by Parliament [Schedule, paragraph 3 (3) to (5)].
These rules may make provision:
§ about the mode and burden of proof in control order proceedings and about evidence in such proceedings
§ to enable or require such proceedings to be determined without a hearing
§ about legal representation
§ enabling control order proceedings or appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a party to the proceedings or his or her legal representative
§ enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings and his or her legal representative
§ for the appointment of a person to represent the interests of a party to proceedings in any of those proceedings from which that party and his legal representative (if he has one) are excluded.
§ make provision enabling the court to give a party to control order proceedings or appeal proceedings a summary of evidence taken in his or her absence. [Schedule, paragraphs 4 and 7]
representation
The Attorney General or Advocate General has the power to appoint someone to represent a suspect in proceedings from which the suspect and his or her own lawyer are excluded [Schedule, paragraph 7]. This representative must be legally qualified [paragraph 7 (3)]. He or she is not responsible to the suspect [paragraph 7 (5)] in the way that a lawyer would normally act solely in the interests of his or her clients.
disclosure
The Secretary of State is required to disclose all relevant material to the court [Schedule, paragraph 4 (3)(a)]. However, he or she can apply to the court for permission to withhold relevant material from everyone, including the suspect and his or her lawyer, except the court and any representative appointed by the Attorney General or Advocate General [paragraph 4 (3)(b)]. Any such application will always be heard in the absence of every party, including the suspect and his or her lawyer, except the secretary of State [paragraph 4 (3)(c)].
The test the court must apply is whether disclosure would be contrary to the public interest [paragraph 4 (3)(d)]. If the court grants the application, it may (or may not) require the Secretary of State to provide the suspect with a summary of the material [paragraph 4 (3)(e)], but the court must ensure that any such summary does not disclose any material which would be contrary to the public interest [paragraph 4 (3)(f)].
anonymity
Both the Secretary of State and the suspect can apply that any person appearing before the court be granted anonymity [Schedule, paragraph 5]. In practice, this means that intelligence operatives will be able to conceal their identities.
evidence obtained by interception
Evidence obtained by interception will be admissible [Schedule, paragraph 9].
offences
It is a criminal offence to contravene a control order [s. 9 (1)], and various other offences are also created by the Act.
Offences are punished by imprisonment for up to 12 months (6 months in Scotland and Northern Ireland) on summary conviction or 5 years on indictment, or a fine, or both [s. 9 (4)]. Conditional discharge or probation are not available as an alternative to imprisonment [s. 9 (6)].
If a control order is quashed, then any convictions relating to offences under the Act must also be quashed [s. 12].
duration of sections 1 to 9 of the act
The provisions relating to control orders are due to expire 12 months after the Act was passed, on 10th March 2006 [s.13 (1)], unless the Secretary of State orders that they continue for up to another 12 months [s.13 (2)] and both Houses of Parliament approve [s.13 (4) to (6)].
reports and reviews of the act
The Secretary of State must lay a report on the use of control orders before Parliament every 3 months, and must appoint a person to report on the operation of the Act after the first 9 months and annually thereafter for so long as the Act remains in force [s.14].
MARCH 2005
For Peace Justice & Human Rights
