Usage against Iceland

In October 2008, prime minister Gordon Brown invoked this part of the Act within the Landsbanki Freezing Order 2008 to freeze the British assets of Icelandic bank Landsbanki during the Icelandic financial crisis,^[5] by virtue of the fact that the Treasury reasonably believed that "action to the detriment of the United Kingdom's economy (or part of it) has been or is likely to be taken by a person or persons".^[6]

Unless explicitly stated, the short title of an Act does not limit the powers expressed within it. The Act does not say "terrorism-related action to the detriment of the United Kingdom's economy". Indeed, the government had defeated attempts to restrict Part 2 to terrorism-related cases during the passage of the Bill through the House of Lords.^[7] The long title of the Act lists "to provide for the freezing of assets" as a separate item from "To amend the Terrorism Act 2000; to make further provision about terrorism and security".

Iceland's prime minister Geir Haarde protested against what he described "a terrorist law ... being applied against us", calling it "a completely unfriendly act".^[8]

Implementation

The Immigration Act 1971 allows for the deportation of those who are a threat to national security for cases where there is insufficient admissible evidence for prosecution; however, a ruling by the European Court of Human Rights in the case of Chahal v United Kingdom in 1996 ruled that deportation of persons to another country was not allowed if there were substantial grounds for believing that the person would be subjected to torture. As a result, the government argued that this provision was necessary to overcome this conjunction of legal and security problems, and allow indefinite detention without charge or trial.

Since this measure was known to step beyond the bounds of Article 5 of the ECHR, the government included section 30^[11] to allow for a derogation (an opt out), claiming that since there was a "state of emergency threatening the life of the nation" (just one interpretation of the War on Terror) which allowed it to do this. The Special Immigration Appeals Commission was to oversee the process.

The derogation order came into force on 13 November 2001,^[12][13] and was repealed on 8 April 2005.^[14] Between those dates the government claimed that there existed in the United Kingdom a state of public emergency threatening the life of the nation, within the meaning of Article 15(1) of the ECHR.

This part was renewed by Parliament on 3 March 2003 without a vote, and on 3 March 2004 with a vote.^[15][16]

Cases

Between 2001 and 2003 sixteen foreign nationals had been detained and held using these powers at Belmarsh. Eight were detained in December 2001, one in February 2002, two in April 2002, one in October 2002, one in November 2002, two in January 2002 and one in October 2003.^[17] One further individual has been certified but is detained under other powers. Of the total detained, two have voluntarily left the United Kingdom. The other fourteen remained in detention as of 18 November 2003. The Council of Europe reported in a document dated 23 July 2004 that according to information supplied to their delegation by the authorities, in March 2004, there were fourteen persons certified as suspected international terrorists and deprived of their liberty in the United Kingdom. Twelve of them were being detained exclusively under Part 4 of the Anti-Terrorism, Crime and Security Act 2001, of whom half since December 2001.^[18]

Appeals

The Act did provide a process for appealing to a judicial tribunal against the Home Secretary's decision to detain in each case. However, the government had argued that a special appellate process was needed to deal with these appeals because of the possibility that much of the evidence or information upon which the Home Secretary's suspicions may be based was likely to be sensitive information of a confidential nature whose release to the person detained or the public might compromise intelligence methods, operatives, and other persons. Therefore, the process established by the ATCSA involved special rules of evidence which most notably permitted the exclusion of the detainees and their legal representatives from proceedings. In an attempt to ensure that their rights were safeguarded at these times, special security-vetted "special advocates" were appointed in the place of their legal representatives. However, there is some evidence that these special advocates experienced difficulties effectively protecting their interests, and two of the special advocates subsequently resigned from their positions following the December 2004 ruling of the House of Lords.

In October 2002 the Special Immigration Appeals Commission decided that the Home Secretary's derogation was lawful, and that there was indeed a "state of emergency threatening the life of the nation".

A series of legal challenges were made in respect of the powers and processes established under the ATCSA and on 16 December 2004, the Law Lords ruled that the powers of detention conferred by Part 4 of ATCSA were incompatible with the UK's obligations under the European Convention on Human Rights. The Court ruled by a majority of 8–1 that the purported derogation was not authorised by Article 15 of the European Convention on Human Rights since the measures taken could not rationally be held to be "strictly required by the exigencies of the situation", and were also discriminatory contrary to Article 14 of the Convention.

The ruling could be summed up as follows:^[19]

• No detention pending deportation had lasted for more than seven days, let alone three years.
• The law was unjustifiably discriminatory. What if a British citizen was also suspected of terrorism which required that they be detained indefinitely without trial? There was no way to do it.
• There was no observable state of emergency threatening the life of the nation. No other European country which had experienced far more severe crises had declared such a state of emergency over such a long time period, and certainly without anyone noticing.

The Court quashed the order derogating from the UK's obligations under the Convention, and issued a declaration pursuant to section 4 of the Human Rights Act 1998 that the provisions of the ATCSA which empowered the preventative detention of non-British suspected international terrorists were incompatible with the European Convention. The effect of such a declaration in British law is not to deprive the legislation of legal effect, and Parliament may, if it wishes, refuse to repeal or amend any provision declared to be incompatible. However the making of a declaration of incompatibility carries strong moral force, and creates considerable political pressure to address the incompatibility.

Replacement of Part 4

To this end Part 4 of the ATCSA was replaced by the Prevention of Terrorism Act 2005 in March 2005. This Act replaces detention in prison with "control orders" which allow for the imposition of an extensive and non-exhaustive set of conditions on the movements of the suspected person with restrictions approaching a form of house arrest.

Unlike Part 4 of the ATCSA, the powers in the Prevention of Terrorism Act 2005 can be applied to British and non-British suspected terrorists alike. At the time of its enactment there was considerable debate as to the compatibility of this Act's provisions with domestic and international human rights laws.

Eleven control orders were issued on the night the act passed on 11 March 2005 against the terrorist suspects who were due to be released. By October of that year only three were still in force.