Section 20 Interpretation of Part 3

68.     This section defines terms used throughout Part 3 and specifies that 'criminal conduct' refers to conduct which would be criminal if conducted in the UK.

PART 4: IMMIGRATION AND ASYLUM

69.     This Part contains measures concerned with the capacity of the UK's immigration and asylum procedures to deal with people whose presence in the UK is not conducive to the public good.

70.     The first two measures - extended powers to detain foreign nationals who are suspected international terrorists (sections 21 to 32) and non-consideration of the substance of an asylum claim made by certain people whose removal from the UK is conducive to the public good (sections 33 and 34) - are fairly narrow in their focus. They apply only to those cases where any appeal against a decision taken by the Secretary of State is to the Special Immigration Appeals Commission (SIAC). SIAC is an independent judicial body set up by the Special Immigration Appeals Commission Act 1997 to hear appeals which involve a public interest provision. A "public interest provision" is a provision by which a person's presence in the UK is considered not to be conducive to the public good for reasons of national security, or the relations between the UK and any other country, or for other reasons of a political nature.

71.     The third measure allows the Secretary of State to retain fingerprints taken in asylum and certain immigration cases which were previously destroyed once the case was decided.

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.

Section 21 Suspected international terrorist: certification

77.     Section 21 provides for the certification by the Secretary of State of a suspected international terrorist. A "suspected international terrorist" is defined as a person whose presence in the UK the Secretary of State reasonably believes to be a risk to national security and whom he reasonably suspects is a terrorist. The section also defines the terms "terrorism" (which is as defined in section 1 of the Terrorism Act 2000), and " terrorist". It also provides that legal proceedings questioning the decision of the Secretary of State in connection with a certificate under this section, or actions of the Secretary of State taken wholly or partly in reliance on that certificate, may be brought only before SIAC in the course of proceedings under section 25 or 26 of this Act, or section 2 of the Special Immigration Appeals Commission Act 1997.

Section 22 Deportation, removal &c.

78.     Section 22 lists, in subsection (2), actions which may be taken in respect of a suspected international terrorist despite the fact that those actions cannot at present result in the actual removal of that person because either a point of law relating to an international agreement or a practical consideration prevents this. The international agreement most likely to apply is the ECHR: case law from the European Court of Human Rights is clear that a person may not be removed where this would place them at a real risk of torture or inhuman or degrading treatment or punishment, contrary to Article 3 of the ECHR. There are no exceptions. By contrast the 1951 Convention and 1967 Protocol relating to the Status of Refugees (the "Refugee Convention") contains provisions which exclude from its protection people whom it would be possible for the Secretary of State to certify under section 21.

79.     A "practical consideration" might be the unavailability of routes to the country of intended removal (there may, for example, be no commercial flights to that country) or a lack of appropriate travel documentation.

80.     The actions listed in subsection (2) relate to the refusal of entry, the refusal to vary leave to enter or remain, the giving of removal directions and various actions connected with deportation. This section does not permit a person to be removed contrary to any international obligations but enables actions to be taken with a view to future removal which, but for the person being certified as a suspected international terrorist, the courts might be able to set aside. The reason it is necessary to enable such actions to be taken even though they cannot, for the time being, result in a removal is that the immigration detention powers are tied to such actions (see section 23 below).

81.     Subsection (3) provides that where a certificate is made under section 21 after one of the actions listed in subsection (2) has been taken, that action is to be treated as having been taken again immediately after certification. This means that where SIAC or a court is hearing a challenge against any of those actions it will do so on the basis that a certificate had been made immediately prior to the taking of such actions.

Section 23 Detention

82.     Section 23 provides that a suspected international terrorist may be detained under certain provisions in the 1971 Act even though their removal is temporarily or indefinitely prevented by a point of law relating to an international agreement or a practical consideration. These provisions are paragraph 16 of Schedule 2 to the 1971 Act (detention of persons liable to examination or removal) and paragraph 2 of Schedule 3 to that Act (detention pending deportation).

Sections 24 to 27

83.     These four sections set out the role of SIAC and the higher courts in overseeing the use of the extended detention powers provided for in sections 21 to 23.

Section 24 Bail

84.     Section 24 is concerned with bail. Where an appeal is pending before it, SIAC is the body responsible for hearing bail applications. The effect of section 24 is to give SIAC the jurisdiction to hear bail applications for so long as a suspected international terrorist is detained under a provision of the 1971 Act, including a provision as extended by this Part.

Section 25 Certification: appeal

85.     Section 25 provides for an appeal against the decision of the Secretary of State to make a certificate under section 21. A person against whom such a certificate is made may appeal within three months of the date of the certificate against that decision to SIAC or, with leave of SIAC, after three months but before the commencement of the first review under section 26. SIAC will consider whether or not there are reasonable grounds for a belief or suspicion of a kind referred to in section 21(1). If SIAC considers that there are not reasonable grounds or if it finds any other reason why the certificate should not have been issued, it will cancel the certificate, in which case the certificate will be treated as having never been made. Otherwise it will dismiss the appeal. For either outcome, there will by virtue of section 27(1) (b)be the right to seek leave to appeal to the Court of Appeal (or its equivalents in Scotland and Northern Ireland).

Section 26 Certification: review

86.     Section 26 provides that for so long as a suspected international terrorist remains in detention there will be an automatic review of the certificate by SIAC. The first review will happen six months after the appeal (if there is one) is finally determined or after the date on which the certificate was issued (if there is not an appeal). Subsequent reviews will occur every three months beginning with the date on which the previous review is finally determined. As with the appeal, SIAC will be able to cancel the certificate on review if it does not consider there are reasonable grounds for a suspicion or belief. There is provision for a review to be brought forward, on application from the person certified, if SIAC considers that a change of circumstances warrants this. If a review is brought forward in this manner, the period for determining the date of the next review begins with the date of the final determination of the review which was brought forward.

Section 27 Appeal and review: supplementary

87.     Section 27 makes various supplementary provisions relating to the appeal and review. In particular, it provides that an appeal to the Court of Appeal (or its equivalents in Scotland and Northern Ireland) may be made on a point of law against a decision by SIAC in respect of an appeal or review of the certificate. It also provides that the Secretary of State is not prevented from issuing another certificate after the original one has been cancelled (for example, if new circumstances or new evidence justify such action).

88.     As an appeal on the certificate may raise similar issues to those raised in the substantive appeal (that is, the appeal against any of the actions listed in section 22 which have been taken against the individual concerned), subsections (7) and (8) provide that SIAC should make every effort to hear those two appeals together, and to avoid or minimise delay resulting from this.

Section 28 Review of sections 21 to 23

89.     This section requires the Secretary of State to appoint a person to review the operation of sections 21 to 23. That person will be required to conduct a review within 14 months of Royal Assent and thereafter at least one month prior to the expiry date set by an order made under section 29(2)(b) or (c). Following such a review, the person will send a report to the Secretary of State who will lay a copy of it before Parliament. The timings have been designed to ensure that a report is available to inform debates that would accompany consideration of an order made under section 29(2).

Section 29 Duration of sections 21 to 23

90.     Section 29 sets out the time limitations on sections 21 to 23. These sections will expire fifteen months after Royal Assent unless the Secretary of State renews them by order. Such an order may only extend the life of the sections by up to a year. This order needs to be approved by a resolution in both Houses of Parliament. In addition, section 29 enables the Secretary of State to repeal sections 21 to 23 at any time. Sections 21 to 23 will cease to have effect at the end of 10 November 2006. This is the day on which the derogation designated by the order made on 11 November 2001 will cease to have effect for the purposes of the Human Rights Act 1998 (unless extended by another order).

Section 30 Legal proceedings: derogation

91.     Section 30 is concerned with proceedings which to any extent challenge the UK's derogation from Article 5 of the ECHR or the designation under section 14(1) of the Human Rights Act 1998 which reflects that derogation. These are referred to as derogation matter. Section 30 provides that a derogation matter may be questioned only in proceedings before SIAC. One effect of this is that SIAC is the appropriate venue for hearing proceedings relating to derogation matter which are brought under section 7 of the Human Rights Act 1998. Ancillary provisions are made to enable SIAC to hear proceedings which, but for this section, could be brought in the High Court or the Court of Appeal; and to enable SIAC to award costs in relation to the derogation matter. An appeal against the decision of SIAC would go to the Court of Appeal (or its equivalents in Scotland and Northern Ireland).

Section 32 Channel Islands and Isle of Man

92.     Section 32 provides that sections 21 to 31 may with appropriate modification be extended by Order in Council to any of the Channel Islands or the Isle of Man.

Refugee convention

Section 33 Certificate that Convention does not apply

93.     Section 33 introduces new arrangements for the consideration and associated appeal to SIAC of asylum claims made by certain individuals. These are individuals whom the Secretary of State has certified as being excluded from refugee status or not entitled to the protection of Article 33(1) of the Refugee Convention because Article 1(F) and/or Article 33(2) of that Convention apply, and whose removal from the UK would be conducive to the public good. Where such a certificate is made, SIAC will, in hearing the asylum appeal, be able to consider only the statements made in that certificate, and will not be able to consider whether a person has a well-founded fear of persecution.

94.     Article 33(1) - often termed the non-refoulement provision - prevents the removal of a refugee where this would lead to their life or freedom being threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. Article 33(2) provides an exception to this protection where there are reasonable grounds for regarding the refugee as a danger to the security of the country. Article 1(F) states that the provisions of the Convention are not to apply to persons with respect to whom there are serious grounds for considering that they have committed an offence or action listed in that Article. These include acts contrary to the purposes and principles of the United Nations, which is taken to include terrorist acts - see, for example, Article 3(3) of UN Security Council Resolution 1373, passed on 28 September 2001, which required States to "Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts".

95.     So if either or both of Article 1(F) or 33(2) applies then a person can be removed without contravening the UK's obligations under the Refugee Convention. The Government is therefore of the view that it is not necessary to consider whether, had a person not been so excluded, he would have qualified for refugee status based on a well-founded fear of persecution. The purpose of this section is to reflect this by enabling an asylum claim to be refused solely on the basis that the applicant is excluded from the protection of the Refugee Convention.

96.     Accordingly, where SIAC upholds the Secretary of State's certificate it must dismiss such part of the appeal as amounts to a claim for asylum. If there are other elements to the appeal SIAC would proceed to consider those elements.

97.     Should SIAC allow the appeal, the case would return to the Secretary of State who would have to consider the substance of the asylum claim. If the claim was still refused any appeal would lie to the Immigration Appellate Authority in the normal way (under the Immigration and Asylum Act 1999), assuming that no public interest provision applied (in which case the appeal would go back to SIAC).

98.     The section provides for appeals against decisions of SIAC to be made to the Court of Appeal (or its equivalents in Scotland and Northern Ireland). It also prevents legal proceedings being take against a decision or action of the Secretary of State in connection with a certification except through SIAC; and enables, with appropriate modifications, the clause to be extended by Order in Council to any of the Channel Islands or the Isle of Man.

Section 34 Construction

99.     This section provides that in considering whether or not Article 1F or Article 33(2) applies, there is no requirement to consider the fear of persecution the person may have or the threat to their life or freedom they may face if removed from the UK. That is, consideration of whether a person comes within the scope of Article 1F or 33(2) will be determined solely by reference to the appropriate Article.

Section 35 Special Immigration Appeals Commission

100.     This section inserts two new provisions into section 1 of the Special Immigration Appeals Commission Act 1997. First, it provides that SIAC is to be a superior court of record. This means that the tribunal enjoys the same status as the High Court and the Court of Appeal. Second, it provides that decisions of SIAC may be challenged only on appeal to the Court of Appeal (or its equivalents in Scotland and Northern Ireland), as set out in section 7 of the 1997 Act and section 30(5)(a) of this Act.

Fingerprints

Section 36 Destruction of Fingerprints

101.     Section 141 of the Immigration and Asylum Act 1999 allows fingerprints to be taken in certain circumstances relating to immigration and asylum. Section 143 requires the fingerprints to be destroyed within a certain time. Section 36 removes this requirement, both for fingerprints taken in future and ones already held. Such fingerprints will now be retained for 10 years

PART 5: RACIAL AND RELIGIOUS HATRED

Section 37 Meaning of racial hatred

102.     This section removes from the definition of racial hatred in section 17 of the Public Order Act 1986 the requirement that the group of persons against whom the hatred is directed is in Great Britain. The effect is that "racial hatred" in Part 3 of the Public Order Act 1986 will include hatred manifested in Great Britain but directed against a racial group outside Great Britain.

Section 38 Meaning of fear and hatred

103.     This section makes corresponding amendments to Northern Ireland legislation.

Section 39 Religiously aggravated offences

104.     Subsections (1) to (6) of the section amend Part 2 of the Crime and Disorder Act 1998 so that the nine existing offences under sections 29 to 32 described as "racially aggravated" are committed if they are aggravated by either racial or religious factors.

105.     Subsections (3) and (4) amend section 28 of the 1998 Act so that it provides for when an offence is racially or religiously aggravated. The effect of the changes is that an offence will be an aggravated offence under the 1998 Act if there is evidence of hostility towards the victim of the offence by the perpetrator at the time of committing the offence or immediately before or after doing so and that hostility is based on the victim's membership of a racial or religious group. Alternatively, an offence is aggravated if there is evidence that it was motivated by hostility towards members of a racial or religious group. The nine aggravated offences in sections 29 to 32 of the Crime and Disorder Act 1998 carry higher maximum penalties than the offences they are based upon.

106.     Subsection (3)(c) deletes a reference in the 1998 Act to religious hostility being immaterial in determining whether an offence is racially aggravated. This reference is no longer needed as the amended test for aggravation covers hostility based on either racial or religious grounds.

107.     Subsection (4) defines a religious group as a group of persons defined by reference to religious belief or lack of religious belief.

108.      The definition means that offences can be aggravated if the hostility that is shown, or which motivates them, is based on the victim's membership of a group defined by reference to a particular religious belief, lack of a particular religious belief, or lack of any religious belief. This covers those who have no belief, such as atheists, and also cases where the hostility is based on the fact that the victim does not share the particular religious beliefs of the perpetrator.

109.      The reference to lack of religious belief does not mean that a group identified by any other factors, such as political opinion, would be caught.

110.     Subsections (5) and (6) provide for the offences that are currently committed if they are racially aggravated to be committed if they are racially or religiously aggravated.

111.     Subsection (7) amends section 153 of the Powers of Criminal Courts (Sentencing) Act 2000 to refer to racial or religious aggravation. (This section is derived from section 82 of the Crime and Disorder Act 1998.) The effect is that an offence (other than the nine specific aggravated offences listed in sections 29 to 32 of the 1998 Act) may now be aggravated by either racial or religious hostility. If a court is considering the seriousness of an offence and finds that it was aggravated by either of those factors, it is required to treat this as increasing the seriousness of the offence and to state in open court that the offence was found to be aggravated.

112.     Subsection (8) amends section 24(2) of the Police and Criminal Evidence Act 1984 to reflect the fact that an offence under section 32(1)(a) of the Crime and Disorder Act 1998 can now be racially or religiously aggravated.

113.     Section 40 Racial hatred offences: penalties

114.     The section amends section 27(3) of the Public Order Act 1986 to increase the maximum penalty for racial hatred offences in Part 3 from 2 years imprisonment to 7 years.

Section 41 Hatred and fear offences: penalties

115.     This section makes a similar amendment to penalties contained in Northern Ireland legislation.

Section 42 Saving

116.     This section makes it clear that the changes made by Part 5 do not apply to anything done before the Part comes into force. The Part will come into force on Royal Assent of the Act.

PART 6: WEAPONS OF MASS DESTRUCTION

Amendment of the Biological Weapons Act 1974 and the Chemical Weapons Act 1996

Section 43 Transfers of biological agents and toxins

117.     This section amends the Biological Weapons Act 1974 to make it an offence to transfer biological agents or toxins outside the UK or to assist another person to do so. Biological agents and toxins are defined in the Act as "any microbial or other biological agent and any toxin, whatever its origin or method of production".

Section 44 Extraterritorial application of biological weapons offences

118.     This section extends UK jurisdiction over offences under section 1 of the Biological Weapons Act 1974 carried out overseas by a United Kingdom person.

119.     A United Kingdom person is a UK national, Scottish partnership, body incorporated under the law of a part of the UK or, on extension by Order in Council, a body incorporated under the law of any of the Channel Islands, the Isle of Man or any Overseas Territory.

Sections 45 and 46 Customs and excise prosecutions for biological and chemical weapons offences

120.     These sections permit the Customs and Excise Commissioners to enforce proceedings under the Biological Weapons Act 1974 and the Chemical Weapons Act 1996, in cases involving the movement of a biological or chemical weapon across a border. Officers of the Commissioners will be able to institute offences in England and Wales and Northern Ireland (assuming the Attorney General gives his consent under section 2 of the 1974 Act and section 31 of the 1996 Act).

Nuclear weapons

Section 47 Use etc. of nuclear weapons

121.     This section makes it an offence to knowingly cause a nuclear weapon explosion, develop, produce, transfer, possess or engage in military preparations to use or threaten to use a nuclear weapon. In this section "nuclear weapon" is taken to include nuclear explosive devices not intended for use as a weapon.

122.     Subsection (6) makes the offences apply to acts outside the United Kingdom by a United Kingdom person.

123.     Subsection (8) provides for the offence of knowingly causing a nuclear weapon explosion to cease to have effect under this Act on the coming into force of the Nuclear Explosions (Prohibitions and Inspections) Act 1998. That Act will come into force following the entry into force of the Comprehensive Test Ban Treaty, and includes a similar offence.

Section 48 Exceptions

124.     This section makes exceptions for actions carried out in the course of an armed conflict or for actions authorised by the Secretary of State.

Section 49 Defences

125.     This section sets out defences for lack of knowledge that a thing was a nuclear weapon or for an attempt to inform the authorities as soon as practicable after discovering that an object was a nuclear weapon.

Assisting or inducing weapons-related acts overseas

Section 50 Assisting or inducing certain weapons-related activities overseas

126.     Under this section it has become an offence for a United Kingdom person outside the UK to assist a foreigner to do an act which would (for a UK person) be contrary to section 1 of the Biological Weapons Act, section 2 of the Chemical Weapons Act, or Section 47 of the Act. Offences under this section carry a sentence of up to life imprisonment.

Supplemental provisions relating to sections 47 and 50

Section 51 Extraterritorial application

127.     This section supplements the provisions of sections 47 and 50 that extend to acts of United Kingdom persons overseas.

Section 52 Powers of entry

128.     This Section gives powers of entry under warrant to constables and officers of the Secretary of State to search for evidence for the commission of an offence under sections 47 and 50.