|Judgments - A (FC) and others (FC) (Appellants) v.
Secretary of State for the Home Department (Respondent)
HOUSE OF LORDS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
X (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
THURSDAY 16 DECEMBER 2004
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
LORD BINGHAM OF CORNHILL
"1 Terrorism: interpretation
(1) In this Act 'terrorism' means the use or threat of action where -
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it -
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section -
(a) 'action' includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) 'the government' means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."
"(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of ….. a person against whom action is being taken with a view to deportation ….."
Thus there is, again, no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wishes to remove. Such a person may be detained only during the process of deportation. Otherwise, the Convention is breached and the Convention rights of the detainee are violated.
"79. Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation.
80. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees."
The Court went on to consider whether Mr Chahal's detention, which had lasted for a number of years, had exceeded the period permissible under article 5(1)(f). On this question the Court, differing from the unanimous decision of the Commission, held that it had not. But it reasserted (para 113) that "any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress". In a case like Mr Chahal's, where deportation proceedings are precluded by article 3, article 5(1)(f) would not sanction detention because the non-national would not be "a person against whom action is being taken with a view to deportation". A person who commits a serious crime under the criminal law of this country may of course, whether a national or a non-national, be charged, tried and, if convicted, imprisoned. But a non-national who faces the prospect of torture or inhuman treatment if returned to his own country, and who cannot be deported to any third country and is not charged with any crime, may not under article 5(1)(f) of the Convention and Schedule 3 to the Immigration Act 1971 be detained here even if judged to be a threat to national security.
"Derogation in time of emergency
1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."
A member state availing itself of the right of derogation must inform the Secretary General of the Council of Europe of the measures it has taken and the reasons for them. It must also tell the Secretary General when the measures have ceased to operate and the provisions of the Convention are again being fully executed. Article 15 of the Convention is not one of the articles expressly incorporated by the 1998 Act, but section 14 of that Act makes provision for prospective derogations by the United Kingdom to be designated for the purposes of the Act in an order made by the Secretary of State. It was in exercise of his power under that section that the Home Secretary, on 11 November 2001, made the Derogation Order, which came into force two days later, although relating to what was at that stage a proposed derogation.
The Derogation Order
"There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom."
The next section summarised the effect of what was to become the 2001 Act. A brief account was then given of the power to detain under the Immigration Act 1971 and reference was made to the decision in Hardial Singh. In a section entitled "Article 5(1)(f) of the Convention" the effect of the Court's decision in Chahal was summarised. In the next section it was recognised that the extended power in the new legislation to detain a person against whom no action was being taken with a view to deportation might be inconsistent with article 5(1)(f). Hence the need for derogation. Formal notice of derogation was given to the Secretary General on 18 December 2001. Corresponding steps were taken to derogate from article 9 of the International Covenant on Civil and Political Rights 1966, which is similar in effect to article 5, although not (like article 5) incorporated into domestic law.
The 2001 Act
"21 Suspected international terrorist: certification
(1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably -
(a) believes that the person's presence in the United Kingdom is a risk to national security, and
(b) suspects that the person is a terrorist.
(2) In subsection (1)(b) 'terrorist' means a person who -
(a) is or has been concerned in the commission, preparation or instigation of acts of international terrorism,
(b) is a member of or belongs to an international terrorist group, or
(c) has links with an international terrorist group.
(3) A group is an international terrorist group for the purposes of subjection (2)(b) and (c) if -
(a) it is subject to the control or influence of persons outside the United Kingdom, and
(b) the Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism.
(4) For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it.
(5) In this Part -
'terrorism' has the meaning given by section 1 of the Terrorism Act 2000 [see para 5 above], and
'suspected international terrorist' means a person certified under subsection (1).
"22 Deportation, removal &c
(1) An action of a kind specified in subsection (2) may be taken in respect of a suspected international terrorist despite the fact that (whether temporarily or indefinitely) the action cannot result in his removal from the United Kingdom because of -
(a) a point of law which wholly or partly relates to an international agreement, or
(b) a practical consideration."
The actions specified in subsection (2) include the making of a deportation order. It is clear that subsection (1)(a) is directed to articles 3 and 5(1)(f) of the Convention and the decision in Chahal. Subsection (1)(b) is directed primarily to the case where a non-national cannot for Convention reasons be returned to his home country and there is no other country to which he may be removed.
(1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by -
(a) a point of law which wholly or partly relates to an international agreement, or
(b) a practical consideration."
For present purposes the relevant provision specified in subsection (2) is para 2 of Schedule 3 to the Immigration Act 1971, the effect of which I have outlined in para 8 above.
"(1)(a) a derogation by the United Kingdom from Article 5(1) of the Convention on Human Rights which relates to the detention of a person where there is an intention to remove or deport him from the United Kingdom, or
(b) the designation under section 14(1) of the Human Rights Act 1998 (c 42) of a derogation within paragraph (a) above."
The appellants' challenge in these proceedings was brought under this section. Section 122, in Part 14 of the Act, provided for appointment by the Secretary of State of a committee of not fewer than seven Privy Counsellors to review the whole of the Act within two years. Part 4 of the Act came into force on 14 December 2001, the date on which the Act received the royal assent.
"28. In the general context of Article 15 of the Convention, the natural and customary meaning of the words 'other public emergency threatening the life of the nation' is sufficiently clear; they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed. Having thus established the natural and customary meaning of this conception, the Court must determine whether the facts and circumstances which led the Irish Government to make their Proclamation of 5 July 1957 come within this conception. The Court, after an examination, finds this to be the case; the existence at the time of a 'public emergency threatening the life of the nation' was reasonably deduced by the Irish Government from a combination of several factors, namely: in the first place, the existence in the territory of the Republic of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its purposes; secondly, the fact that this army was also operating outside the territory of the State, thus seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly, the steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of 1957.
29. Despite the gravity of the situation, the Government had succeeded, by using means available under ordinary legislation, in keeping public institutions functioning more or less normally, but the homicidal ambush on the night of 3 to 4 July 1957 in the territory of Northern Ireland near the border had brought to light, just before 12 July - a date, which, for historical reasons, is particularly critical for the preservation of public peace and order - the imminent danger to the nation caused by the continuance of unlawful activities in Northern Ireland by the IRA and various associated groups, operating from the territory of the Republic of Ireland."
"153. Such a public emergency may then be seen to have, in particular, the following characteristics:
(1) It must be actual or imminent.
(2) Its effects must involve the whole nation.
(3) The continuance of the organised life of the community must be threatened.
(4) The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate."
In Ireland v United Kingdom (1978) 2 EHRR 25 the parties were agreed, as were the Commission and the Court, that the article 15 test was satisfied. This was unsurprising, since the IRA had for a number of years represented (para 212) "a particularly far-reaching and acute danger for the territorial integrity of the United Kingdom, the institutions of the six counties and the lives of the province's inhabitants". The article 15 test was accordingly not discussed, but the Court made valuable observations about its role where the application of the article is challenged:
"(a) The role of the Court
207. The limits on the Court's powers of review are particularly apparent where Article 15 is concerned.
It falls in the first place to each Contracting State, with its responsibility for 'the life of [its] nation', to determine whether that life is threatened by a 'public emergency' and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter, Article 15(1) leaves those authorities a wide margin of appreciation.
Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the Commission, is responsible for ensuring the observance of the States' engagements (Art. 19), is empowered to rule on whether the States have gone beyond the 'extent strictly required by the exigencies' of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision."
The Court repeated this account of its role in Brannigan and McBride v United Kingdom (1993) 17 EHRR 539, adding (para 43) that
"in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation."
The Court again accepted that there had been a qualifying emergency when the applicants, following a derogation in December 1988, were detained for periods of six days and four days respectively in January 1989. In Aksoy v Turkey (1996) 23 EHRR 553 the Court had little difficulty in accepting, and the applicant did not contest, that a qualifying public emergency existed. This was, again, an unsurprising conclusion in the context of Kurdish separatist terrorism which had claimed almost 8000 lives. The applicant in Marshall v United Kingdom (10 July 2001, Appn No 41571/98) relied on the improved security situation in Northern Ireland to challenge the continuing validity of the United Kingdom's 1988 derogation. Referring to its previous case law, the Court rejected the application as inadmissible, while acknowledging (pp 11-12) that it must
"address with special vigilance the fact that almost nine years separate the prolonged administrative detention of the applicants Brannigan and McBride from that of the applicant in the case before it."
"39. A state party may take measures derogating from its obligations under the International Covenant on Civil and Political Rights pursuant to Article 4 (hereinafter called 'derogation measures') only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation. A threat to the life of the nation is one that:
(a) affects the whole of the population and either the whole or part of the territory of the State, and
(b) threatens the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognised in the Covenant.
40. Internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation cannot justify derogations under Article 4."
"54. The principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger."
In submitting that the test of imminence was not met, the appellants pointed to ministerial statements in October 2001 and March 2002: "There is no immediate intelligence pointing to a specific threat to the United Kingdom, but we remain alert, domestically as well as internationally;" and "[I]t would be wrong to say that we have evidence of a particular threat."
"Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature."
This view was also taken by the parliamentary Joint Committee on Human Rights, which in its Eighteenth Report of the Session 2003-2004 (HL paper 158, HC 713, 21 July 2004), in para 4, observed:
"Derogations from human rights obligations are permitted in order to deal with emergencies. They are intended to be temporary. According to the Government and the Security Service, the UK now faces a near-permanent emergency."
It is indeed true that official spokesmen have declined to suggest when, if ever, the present situation might change.
"In their fight against terrorism, Council of Europe members should not provide for any derogations to the European Convention on Human Rights."
It also called on all member states (para 12) to:
"refrain from using Article 15 of the European Convention on Human Rights (derogation in time of emergency) to limit the rights and liberties guaranteed under its Article 5 (right to liberty and security)."
In its General Comment No 29 on article 4 of the ICCPR, the UN Human Rights Committee on 24 July 2001 observed (in para 3):
"On a number of occasions the Committee has expressed its concern over States parties that appear to have derogated from rights protected by the Covenant, or whose domestic law appears to allow such derogation, in situations not covered by article 4."
In Opinion 1/2002 of the Council of Europe Commissioner for Human Rights (Comm DH (2002) 7, 28 August 2002), Mr Alvaro Gil-Robles observed, in para 33:
"Whilst acknowledging the obligation of governments to protect their citizens against the threat of terrorism, the Commissioner is of the opinion that general appeals to an increased risk of terrorist activity post September 11th 2001 cannot, on their own, be sufficient to justify derogating from the Convention. Several European states long faced with recurring terrorist activity have not considered it necessary to derogate from Convention rights. Nor have any found it necessary to do so under the present circumstances. Detailed information pointing to a real and imminent danger to public safety in the United Kingdom will, therefore, have to be shown."
The Committee of Privy Counsellors established pursuant to section 122 of the 2001 Act under the chairmanship of Lord Newton of Braintree, which reported on 18 December 2003 (Anti-terrorism, Crime and Security Act 2001 Review: Report, HC 100) attached significance to this point:
"189. The UK is the only country to have found it necessary to derogate from the European Convention on Human Rights. We found this puzzling, as it seems clear that other countries face considerable threats from terrorists within their borders."
It noted that France, Italy and Germany had all been threatened, as well as the UK.
"Having considered the Home Secretary's evidence carefully, we recognise that there may be evidence of the existence of a public emergency threatening the life of the nation, although none was shown by him to this Committee."
It repeated these doubts in para 4 of its Fifth Report of the Session 2001-2002 (3 December 2001). In para 20 of its Fifth Report of the Session 2002-2003 (HL paper 59, HC 462, 24 February 2003), following the decisions of SIAC and the Court of Appeal, the Joint Committee noted that SIAC had had sight of closed as well as open material but suggested that each House might wish to seek further information from the Government on the public emergency issue. In its report of 23 February 2004 (Sixth Report of the Session 2003-2004, HL Paper 38, HC 381), the Joint Committee stated, in para 34:
"Insufficient evidence has been presented to Parliament to make it possible for us to accept that derogation under ECHR Article 15 is strictly required by the exigencies of the situation to deal with a public emergency threatening the life of the nation."
It adhered to this opinion in paras 15-19 of its Eighteenth Report of the Session 2003-2004 (HL Paper 158, HC 713), drawing attention (para 82) to the fact that the UK was the only country out of 45 countries in the Council of Europe which had found it necessary to derogate from article 5. The appellants relied on these doubts when contrasting the British derogation with the conduct of other Council of Europe member states which had not derogated, including even Spain which had actually experienced catastrophic violence inflicted by Al-Qaeda.
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
This approach is close to that laid down by the Supreme Court of Canada in R v Oakes  1 SCR 103, paras 69-70, and in Libman v Attorney General of Quebec (1997) 3 BHRC 269, para 38. To some extent these questions are, or may be, interrelated. But the appellants directed the main thrust of their argument to the second and third questions. They submitted that even if it were accepted that the legislative objective of protecting the British people against the risk of catastrophic Al-Qaeda terrorism was sufficiently important to justify limiting the fundamental right to personal freedom of those facing no criminal accusation, the 2001 Act was not designed to meet that objective and was not rationally connected to it. Furthermore, the legislative objective could have been achieved by means which did not, or did not so severely, restrict the fundamental right to personal freedom.
(1) Part 4 of the 2001 Act reversed the effect of the decisions in Hardial Singh  1 WLR 704 and Chahal (1996) 23 EHRR 413 and was apt to address the problems of immigration control caused to the United Kingdom by article 5(1)(f) of the Convention read in the light of those decisions.
(2) The public emergency on which the United Kingdom relied to derogate from the Convention right to personal liberty was the threat to the security of the United Kingdom presented by Al-Qaeda terrorists and their supporters.
(3) While the threat to the security of the United Kingdom derived predominantly and most immediately from foreign nationals, some of whom could not be deported because they would face torture or inhuman or degrading treatment or punishment in their home countries and who could not be deported to any third country willing to receive them, the threat to the United Kingdom did not derive solely from such foreign nationals.
(4) Sections 21 and 23 did not rationally address the threat to the security of the United Kingdom presented by Al-Qaeda terrorists and their supporters because (a) it did not address the threat presented by UK nationals, (b) it permitted foreign nationals suspected of being Al-Qaeda terrorists or their supporters to pursue their activities abroad if there was any country to which they were able to go, and (c) the sections permitted the certification and detention of persons who were not suspected of presenting any threat to the security of the United Kingdom as Al-Qaeda terrorists or supporters.
(5) If the threat presented to the security of the United Kingdom by UK nationals suspected of being Al-Qaeda terrorists or their supporters could be addressed without infringing their right to personal liberty, it is not shown why similar measures could not adequately address the threat presented by foreign nationals.
(6) Since the right to personal liberty is among the most fundamental of the rights protected by the European Convention, any restriction of it must be closely scrutinised by the national court and such scrutiny involves no violation of democratic or constitutional principle.
(7) In the light of such scrutiny, neither the Derogation Order nor sections 21 and 23 of the 2001 Act can be justified.
"But the evidence before us demonstrates beyond argument that the threat is not so confined. [i.e. is not confined to the alien section of the population]. There are many British nationals already identified - mostly in detention abroad - who fall within the definition of 'suspected international terrorists,' and it was clear from the submissions made to us that in the opinion of the [Home Secretary] there are others at liberty in the United Kingdom who could be similarly defined."
This finding has not been challenged, and since SIAC is the responsible fact-finding tribunal it is unnecessary to examine the basis of it. There was however evidence before SIAC that "upwards of a thousand individuals from the UK are estimated on the basis of intelligence to have attended training camps in Afghanistan in the last five years," that some British citizens are said to have planned to return from Afghanistan to the United Kingdom and that "The backgrounds of those detained show the high level of involvement of British citizens and those otherwise connected with the United Kingdom in the terrorist networks." It seems plain that the threat to the United Kingdom did not derive solely from foreign nationals or from foreign nationals whom it was unlawful to deport. Later evidence, not before SIAC or the Court of Appeal, supports that conclusion. The Newton Committee recorded the Home Office argument that the threat from Al-Qaeda terrorism was predominantly from foreigners but drew attention (para 193) to
"accumulating evidence that this is not now the case. The British suicide bombers who attacked Tel Aviv in May 2003, Richard Reid ('the Shoe Bomber'), and recent arrests suggest that the threat from UK citizens is real. Almost 30% of Terrorism Act 2000 suspects in the past year have been British. We have been told that, of the people of interest to the authorities because of their suspected involvement in international terrorism, nearly half are British nationals."
"36. The proportionality of the derogating measures is further brought into question by the definition of international terrorist organisations provided by section 21(3) of the Act. The section would appear to permit the indefinite detention of an individual suspected of having links with an international terrorist organisation irrespective of its presenting a direct threat to public security in the United Kingdom and perhaps, therefore, of no relation to the emergency originally requiring the legislation under which his Convention rights may be prejudiced.
37. Another anomaly arises in so far as an individual detained on suspicion of links with international terrorist organisations must be released and deported to a safe receiving country should one become available. If the suspicion is well founded, and the terrorist organisation a genuine threat to UK security, such individuals will remain, subject to possible controls by the receiving state, at liberty to plan and pursue, albeit at some distance from the United Kingdom, activity potentially prejudicial to its public security.
38. It would appear, therefore, that the derogating measures of the Anti-Terrorism, Crime and Security Act allow both for the detention of those presenting no direct threat to the United Kingdom and for the release of those of whom it is alleged that they do. Such a paradoxical conclusion is hard to reconcile with the strict exigencies of the situation."
The Newton Committee, while expressing no opinion on the legality of Part 4 of the 2001 Act, echoed the Commissioner's criticisms:
"185. The Part 4 detention powers present a number of problems that range from fundamental issues of principle to practical procedural difficulties. We are not persuaded that the powers are sufficient to meet the full extent of the threat from international terrorism. Nor are we persuaded that the risks of injustice are necessary or defensible.
186. Some of these problems arise because Part 4 is an adaptation of existing immigration and asylum legislation, rather than being designed expressly for the purpose of meeting the threat from international terrorism.
"192. The Part 4 process only tackles the threat from foreigners suspected of having links with al Qaeda or its associated networks. It does not, therefore, address the threat:
a. from British nationals with similar links; or fromb. anyone in the UK with links to other foreign terrorist causes.…..
"195. Seeking to deport terrorist suspects does not seem to us to be a satisfactory response, given the risk of exporting terrorism. If people in the UK are contributing to the terrorist effort here or abroad, they should be dealt with here. While deporting such people might free up British police, intelligence, security and prison service resources, it would not necessarily reduce the threat to British interests abroad, or make the world a safer place more generally. Indeed, there is a risk that the suspects might even return without the authorities being aware of it.
"203. We consider the shortcomings described above to be sufficiently serious to strongly recommend that the Part 4 powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency. New legislation should:
a. deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators; andb. not require a derogation from the European Convention on Human Rights."
"no person shall be detained for an indefinite period of time, whether detained pending judicial investigation or trial or detained without charge; ….."
"At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight."
Where the conduct of government is threatened by serious terrorism, difficult choices have to be made and the terrorist dimension cannot be overlooked. This also the European Commission and Court have recognised in cases such as Brogan v United Kingdom (1988) 11 EHRR 117, para 80; Fox, Campbell & Hartley v United Kingdom (1990) 13 EHRR 157, paras 32, 34; and Murray v United Kingdom (1994) 19 EHRR 193, para 47. The same recognition is found in domestic authority: see, for example, Secretary of State for the Home Department v Rehman  1 AC 153, paras 28, 62.
"….. the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of Contracting States."
A similar approach is found in domestic authority. In R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326, 381, Lord Hope of Craighead said:
"It will be easier for such [a discretionary] area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection."
Another area in which the court was held to be qualified to make its own judgment is the requirement of a fair trial: R v A (No 2)  1 AC 45, para 36. The Supreme Court of Canada took a similar view in Libman v Attorney General of Quebec (1997) 3 BHRC 269, para 59. In his dissenting judgment (cited with approval in Libman) in RJR- MacDonald Inc v Attorney General of Canada  3 SCR 199, para 68, La Forest J, sitting in the same court, said:
"Courts are specialists in the protection of liberty and the interpretation of legislation and are, accordingly, well placed to subject criminal justice legislation to careful scrutiny. However, courts are not specialists in the realm of policy-making, nor should they be."
See also McLachlin J in the same case, para 135. Jackson J, sitting in the Supreme Court of the United States in West Virginia State Board of Education v Barnette 319 US 624 (1943), para 3, stated, speaking of course with reference to an entrenched constitution:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts ….. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed."
"The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention leaves to each Contracting State, in the first place, the task of securing the rights and freedoms it enshrines."
Thus the European Commissioner for Human Rights had authority for saying (Opinion 1/2002, para 9):
"It is furthermore, precisely because the Convention presupposes domestic controls in the form of a preventive parliamentary scrutiny and posterior judicial review that national authorities enjoy a large margin of appreciation in respect of derogations. This is, indeed, the essence of the principle of the subsidiarity of the protection of Convention rights."
In Smith and Grady v United Kingdom (1999) 29 EHRR 493 the traditional Wednesbury approach to judicial review was held to afford inadequate protection. It is now recognised that "domestic courts must themselves form a judgment whether a Convention right has been breached" and that "the intensity of review is somewhat greater under the proportionality approach": R (Daly) v Secretary of State for the Home Department  UKHL 26,  2 AC 532, paras 23, 27.
"The Court would stress the importance of Article 5 in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Article 5(3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law."
In Korematsu v United States 584 F Supp 1406 (1984) para 21, Judge Patel observed that the Supreme Court's earlier decision (323 US 214 (1944))
"stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability."
Simon Brown LJ in International Transport Roth GmbH v Secretary of State for the Home Department  QB 728 observed, in para 27, that
"….. the court's role under the 1998 Act is as the guardian of human rights. It cannot abdicate this responsibility."
He went on to say, in para 54:
"But judges nowadays have no alternative but to apply the Human Rights Act 1998. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts."
"The courts are charged by Parliament with delineating the boundaries of a rights-based democracy" ("Judicial Deference: servility, civility or institutional capacity?"  PL 592, 597)".
See also Clayton, "Judicial deference and 'democratic dialogue': the legitimacy of judicial intervention under the Human Rights Act 1998"  PL 33.
"32. It can be argued that as suspected international terrorists their departure for another country could amount to exporting terrorism: a point made in the Newton Report at paragraph 195. But that is a natural consequence of the fact that Part 4 powers are immigration powers: detention is permissible only pending deportation and there is no other power available to detain (other than for the purpose of police enquiries) if a foreign national chooses voluntarily to leave the UK. (Detention in those circumstances is limited to 14 days after which the person must be either charged or released.) Deportation has the advantage moreover of disrupting the activities of the suspected terrorist."
This answer, however, reflects the central complaint made by the appellants: that the choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem (by allowing non-UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if reasonably suspected of having links with Al-Qaeda, may harbour no hostile intentions towards the United Kingdom. The conclusion that the Order and section 23 are, in Convention terms, disproportionate is in my opinion irresistible.
(1) that there is an advantage to the UK in the removal of a potential terrorist from circulation in the UK because he cannot operate actively in the UK whilst he is either not in the country or not at liberty;
(2) that the removal of potential terrorists from their UK communities disrupts the organisation of terrorist activities;
(3) that the detainee's freedom to leave, far from showing that the measures are irrational, tends to show that they are to this extent properly tailored to the state of emergency; and
(4) that it is difficult to see how a power to detain a foreign national who had not been charged with a criminal offence and wished to leave the UK could readily be defended as tending to prevent him committing acts of terrorism aimed at the UK.
Assuming, as one must, that there is a public emergency threatening the life of the nation, measures which derogate from article 5 are permissible only to the extent strictly required by the exigencies of the situation, and it is for the derogating state to prove that that is so. The reasons given by SIAC do not warrant its conclusion. The first reason does not explain why the measures are directed only to foreign nationals. The second reason no doubt has some validity, but is subject to the same weakness. The third reason does not explain why a terrorist, if a serious threat to the UK, ceases to be so on the French side of the English Channel or elsewhere. The fourth reason is intelligible if the foreign national is not really thought to be a serious threat to the UK, but hard to understand if he is. I do not consider SIAC's conclusion as one to which it could properly come. In dismissing the appellants' appeal, Lord Woolf CJ broadly considered that it was sensible and appropriate for the Secretary of State to use immigration legislation, that deference was owed to his decisions (para 40) and that SIAC's conclusions depended on the evidence before it (para 43). Brooke LJ reached a similar conclusion (para 91), regarding SIAC's findings as unappealable findings of fact. Chadwick LJ also regarded SIAC's finding as one of fact (para 150). I cannot accept this analysis as correct. The European Court does not approach questions of proportionality as questions of pure fact: see, for example, Smith and Grady v United Kingdom, above. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review. So would excessive deference, in a field involving indefinite detention without charge or trial, to ministerial decision. In my opinion, SIAC erred in law and the Court of Appeal erred in failing to correct its error.
"Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
It is well established that the obligation on the state not to discriminate applies only to rights which it is bound to protect under the Convention. The appellants claim that section 23 discriminates against them in their enjoyment of liberty under article 5. Article 14 is of obvious importance. In his influential work "An International Bill of the Rights of Man" (1945), p 115, Professor Hersch Lauterpacht wrote:
"The claim to equality before the law is in a substantial sense the most fundamental of the rights of man."
Jackson J reflected this belief in his well-known judgment in Railway Express Agency Inc v New York 336 US 106, 112-113 (1949), when he said:
"I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation."
More recently, the Privy Council (per Lord Hoffmann, Matadeen v Pointu  1 AC 98, 109) observed, with reference to the principle of equality:
"Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour."
"Habeas corpus protection is often expressed as limited to 'British subjects'. Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic 'no' to the question. Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed 'the black' in Sommersett's Case (1772) 20 St Tr 1. There is nothing here to encourage in the case of aliens or non-patrials the implication of words excluding the judicial review our law normally accords to those whose liberty is infringed."
"However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention."
The Attorney General accepted that "or other status" would cover the appellants' immigration status, so nothing turns on this point. Nationality is a forbidden ground of discrimination within section 3(1) of the Race Relations Act 1976 and the Secretary of State is bound by that Act by virtue of section 19B(1). It was not argued that in the present circumstances he was authorised to discriminate by section 19D.
"In spite of the very general wording of the French version ('sans distinction aucune'), Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised. This version must be read in the light of the more restrictive text of the English version ('without discrimination'). In addition, and in particular, one would reach absurd results were one to give Article 14 an interpretation as wide as that which the French version seems to imply. One would, in effect, be led to judge as contrary to the Convention every one of the many legal or administrative provisions which do not secure to everyone complete equality of treatment in the enjoyment of the rights and freedoms recognised. The competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions; moreover, certain legal inequalities tend only to correct factual inequalities. The extensive interpretation mentioned above cannot consequently be accepted.
It is important, then, to look for the criteria which enable a determination to be made as to whether or not a given difference in treatment, concerning of course the exercise of one of the rights and freedoms set forth, contravenes Article 14. On this question, the Court, following the principles which may be extracted from the legal practice of a large number of democratic States, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised."
The question is whether persons in an analogous or relevantly similar situation enjoy preferential treatment, without reasonable or objective justification for the distinction, and whether and to what extent differences in otherwise similar situations justify a different treatment in law: Stubbings v United Kingdom (1996) 23 EHRR 213, para 70. The parties were agreed that in domestic law, seeking to give effect to the Convention, the correct approach is to pose the questions formulated by Grosz, Beatson and Duffy, Human Rights: The 1998 Act and the European Convention (2000), para C14-08, substantially adopted by Brooke LJ in Wandsworth London Borough Council v Michalak  EWCA Civ 271,  1 WLR 617, para 20, and refined in the later cases of R (Carson) v Secretary of State for Work and Pensions  EWHC 978 (Admin),  3 All ER 994, para 52,  EWCA Civ 797,  3 All ER 577, paras 56-61, Ghaidan v Godin-Mendoza  UKHL 30,  3 WLR 113, paras 133-134 and R(S) v Chief Constable of the South Yorkshire Police  UKHL 39,  1 WLR 2196. As expressed in para 42 of this last case the questions are:
"(1) Do the facts fall within the ambit of one or more of the Convention rights? (2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (3) If so, was the difference in treatment on one or more of the proscribed grounds under article 14? (4) Were those others in an analogous situation? (5) Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?"
"All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment ….."
Restrictions of human rights must be necessary and proportionate. The Commissioner for Human Rights in Opinion 1/2002 (28 August 2002, para 40) observed, with reference to the 2001 Act:
"In so far as these measures are applicable only to non-deportable foreigners, they might appear, moreover, to be ushering in a two-track justice, whereby different human rights standards apply to foreigners and nationals."
In its General Policy Recommendations published on 8 June 2004, the European Commission against Racism and Intolerance, a Council of Europe body, considered it the duty of the state to fight against terrorism; stressed that the response should not itself encroach on the values of freedom, democracy, justice, the rule of law, human rights and humanitarian law; stressed that the fight against terrorism should not become a pretext under which racial discrimination was allowed to flourish; noted that the fight against terrorism since 11 September 2001 had in some cases resulted in the adoption of discriminatory legislation, notably on grounds of nationality, national or ethnic origin and religion; stressed the responsibility of member states to ensure that the fight against terrorism did not have a negative impact on any minority group; and recommended them
"to review legislation and regulations adopted in connection with the fight against terrorism to ensure that these do not discriminate directly or indirectly against persons or group of persons, notably on grounds of 'race', colour, language, religion, nationality or national or ethnic origin, and to abrogate any such discriminatory legislation."
"1. Reports from States parties have often failed to take into account that each State party must ensure the rights in the Covenant to 'all individuals within its territory and subject to its jurisdiction' (art. 2, para. 1). In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.
2. Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens alike. Exceptionally, some of the rights recognized in the Covenant are expressly applicable only to citizens (art. 25), while article 13 applies only to aliens. However, the Committee's experience in examining reports shows that in a number of countries other rights that aliens should enjoy under the Covenant are denied to them or are subject to limitations that cannot always be justified under the Covenant."
The Committee went on to rule, in para 7, that "Aliens have the full right to liberty and security of the person" and that "Aliens are entitled to equal protection by the law".
"8. According to article 4, paragraph 1, one of the conditions for the justifiability of any derogation from the Covenant is that the measures taken do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Even though article 26 or the other Covenant provisions related to non-discrimination (articles 2, 3, 14, paragraph 1, 23, paragraph 4, 24, paragraph 1, and 25) have not been listed among the non-derogable provisions in article 4, paragraph 2, there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances. In particular, this provision of article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant."
"6. States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law."
The UN Commission on Human Rights published on 26 May 2003 a report which quoted General Comment No 15 (para 58 above) and stated:
"The architecture of international human rights law is built on the premise that all persons, by virtue of their essential humanity, should enjoy all human rights unless exceptional distinctions, for example, between citizens and non-citizens, serve a legitimate State objective and are proportional to the achievement of that objective."
"1. In this Convention, the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.
3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved."
This might be understood to remove discriminatory treatment of non-citizens from the scope of the Convention. But the Committee established under article 8 to supervise and report on the implementation of the Convention has made plain that it does not sanction such discrimination. In General Recommendation XI adopted in 1993 it stated:
"3. The Committee further affirms that article 1, paragraph 2, must not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in other instruments, especially the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights."
In General Recommendation 14, adopted in the same year, the Committee asserted (para 1):
"Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic principle in the protection of human rights."
It continued, in para 2:
"2. The Committee observes that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4, of the Convention. In considering the criteria that may have been employed, the Committee will acknowledge that particular actions may have varied purposes. In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin."
The Committee gave special attention to the United Kingdom, and in its Concluding Observations on the United Kingdom (10 December 2003, CERD/C/63/CO/11), in para 17, said:
"17. The Committee is deeply concerned about provisions of the Anti-Terrorism Crime and Security Act which provide for the indefinite detention without charge or trial, pending deportation, of non-nationals of the United Kingdom who are suspected of terrorism-related activities.
While acknowledging the State party's national security concerns, the Committee recommends that the State party seek to balance those concerns with the protection of human rights and its international legal obligations. In this regard, the Committee draws the State party's attention to its statement of 8 March 2002 in which it underlines the obligation of States to 'ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent, or national or ethnic origin.'"
The Committee returned to this subject at its 64th session in February-March 2004, when it adopted General Recommendation 30, entitled "Discrimination against non-citizens." The Committee there defined the responsibilities of states parties to the Convention in these terms:
"1. Article 1, paragraph 1, of the Convention defines racial discrimination. Article 1, paragraph 2, provides for the possibility of differentiating between citizens and non-citizens. Article 1, paragraph 3 declares that, concerning nationality, citizenship or naturalization, the legal provisions of States parties must not discriminate against any particular nationality;
2. Article 1, paragraph 2, must be construed so as to avoid undermining the basic prohibition of discrimination; hence, it should not be interpreted to detract in any way from the rights and freedoms recognised and enunciated in particular in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights;
3. Article 5 of the Convention incorporates the obligation of States parties to prohibit and eliminate racial discrimination in the enjoyment of civil, political, economic, social and cultural rights. Although some of these rights, such as the right to participate in elections, to vote and to stand for election, may be confined to citizens, human rights are, in principle, to be enjoyed by all persons. States parties are under an obligation to guarantee equality between citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law;
4. Under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim. Differentiation within the scope of article 1, paragraph 4, of the Convention relating to special measures is not considered discriminatory;"
It went on to recommend (paras 10 and 20) that states should:
"10. Ensure that any measures taken in the fight against terrorism do not discriminate, in purpose or effect, on the grounds of race, colour, descent, or national or ethnic origin and that non-citizens are not subjected to racial or ethnic profiling or stereotyping.
20. Ensure that non-citizens detained or arrested in the fight against terrorism are properly protected by domestic law that complies with international human rights, refugee and humanitarian law."
"2. The power to take derogatory measures as aforesaid is subject to five general conditions:
. . .
(b) Such measures must be strictly proportionate to the exigencies of the situation.
(c) Such measures must not be inconsistent with the other obligations of the state under international law.
(d) Such measures must not involve any discrimination solely on the ground of race, colour, sex, language, religion, nationality or social origin."
"There are also arguments of principle against having discriminatory provisions with which we have a good deal of sympathy, but it is the arguments of limited efficacy in addressing the terrorist threat that weigh most heavily with us."
In his discussion paper published in response to the Newton Report ("Counter-Terrorism Powers" - see para 43 above) the Secretary of State said:
"36. Secondly Lord Newton proposed that new legislation should apply equally to all nationalities including British citizens. The Government believes it is defensible to distinguish between foreign nationals and our own citizens and reflects their different rights and responsibilities. Immigration powers and the possibility of deportation could not apply to British citizens. While it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The Government believes that such draconian powers would be difficult to justify. Experience has demonstrated the dangers of such an approach and the damage it can do to community cohesion and thus to the support from all parts of the public that is so essential to countering the terrorist threat."
"38. Second, by relying on immigration legislation to provide for the detention of suspected international terrorists, the Bill risks discriminating, in the authorization of detention without charge, between those suspected international terrorists who are subject to immigration control and those who have an unconditional right to remain in the United Kingdom. We are concerned that this might lead to discrimination in the enjoyment of the right to liberty on the ground of nationality. If that could not be shown to have an objective, rational and proportionate justification, it might lead to actions which would be incompatible with Article 5 of the ECHR either taken alone or in combination with the right to be free of discrimination in the enjoyment of Convention rights under Article 14 of the ECHR. It could also lead to violations of the right to be free of discrimination under Article 26 and the right to liberty under Article 9 of the ICCPR.
39. We raised this matter with the Home Secretary in oral evidence. Having considered his response, we are not persuaded that the risk of discrimination on the ground of nationality in the provisions of Part 4 of the Bill has been sufficiently taken on board."
In para 32 of its Fifth Report of the Session 2002-2003 (24 February 2003, HL paper 59, HC 462), following the Court of Appeal's decision in these proceedings, the Joint Committee observed that the Government might have to review its position on discrimination in the light of any further decision. In its Sixth Report of the Session 2003-2004 (23 February 2004), HL paper 38, HC 381, para 35, the Joint Committee expressed deep concern "about the human rights implications of making the detention power an aspect of immigration law rather than anti-terrorism law" and warned of "a significant risk that Part 4 violates the right to be free of discrimination under ECHR Article 14." Following the Report of the Newton Committee and the Secretary of State's discussion paper published in response to it, the Joint Committee returned to this subject in its Eighteenth Report of the Session 2003-2004 (21 July 2004), HL paper 158, HC 713, paras 42-44:
"42. The discussion paper rejects the Newton Report's recommendation that new legislation replacing Part 4 ATCSA 2001 should apply equally to all nationalities including British citizens. It states the Government's belief that it is defensible to distinguish between foreign nationals and UK nationals because of their different rights and responsibilities.
43. We have consistently expressed our concern that the provisions of Part 4 ATCSA unjustifiably discriminate on grounds of nationality and are therefore in breach of Article 14 ECHR. Along with Lord Newton, we find it extraordinary that the discussion paper asserts that seeking the same power to detain British citizens would be 'a very grave step' and that 'such draconian powers would be difficult to justify.'
44. The interests at stake for a foreign national and a UK national are the same: their fundamental right to liberty under Article 5 ECHR and related procedural rights. Article 1 of the ECHR requires States to secure the Convention rights to everyone within their jurisdiction. Article 14 requires the enjoyment of Convention rights to be secured without discrimination on the ground of nationality. The Government's explanation in its discussion paper of its reluctance to seek the same powers in relation to UK nationals appears to suggest that it regards the liberty interests of foreign nationals as less worthy of protection than exactly the same interests of UK nationals, which is impermissible under the Convention."
"94. If there is to be an effective derogation from the right to liberty enshrined in Article 5 in respect of suspected international terrorists - and we can see powerful arguments in favour of such a derogation - the derogation ought rationally to extend to all irremovable suspected international terrorists. It would properly be confined to the alien section of the population only if, as [counsel for the appellants] contends, the threat stems exclusively or almost exclusively from that alien section.
95. But the evidence before us demonstrates beyond argument that the threat is not so confined. There are many British nationals already identified - mostly in detention abroad - who fall within the definition of 'suspected international terrorists', and it was clear from the submissions made to us that in the opinion of the [Secretary of State] there are others at liberty in the United Kingdom who could be similarly defined. In those circumstances we fail to see how the derogation can be regarded as other than discriminatory on the grounds of national origin."
(1) The Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949. This instrument envisaged the internment of alien enemies in time of war or armed conflict. It is not suggested that the United Kingdom is, in a legal sense, at war or involved in an armed conflict, and it has no bearing on these appeals.
(2) The Geneva Convention Relating to the Status of Refugees 1951. The Attorney General submitted that article 9 of this Convention, permitting states to take provisional measures "in time of war or other grave and exceptional circumstances", was apt to cover the detention of the appellants. He referred to material supporting that interpretation: Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation (1953), pp 94-96; Grahl-Madsen, Commentary on the Refugee Convention 1951 (republished by UNHCR 1997), pp 26-29; UNHCR Executive Committee Conclusion 44 in the Report of the 37th Session (1986), "Detention of Refugees and Asylum Seekers", para (b); UNHCR Revised Guidelines on "Applicable Criteria and Standards Relating to the Detention of Asylum Seekers" (February 1999), guideline 3; Goodwin-Gill, The Refugee in International Law (2nd ed, 1996), p 247, fn 2. It is, however, permissible under article 33(2) of the Refugee Convention to return to his home country a refugee at risk of torture or inhuman treatment in that country, a course which the European Convention precludes (see para 9 above). It cannot therefore avail the Secretary of State to show that the detention of the appellants is permissible under the Refugee Convention if it is not permissible under the European Convention because it is the latter which he is said to have violated.
(3) The Convention on the Status of Stateless Persons 1954. Article 9 of this Convention corresponds to article 9 of the Refugee Convention. The same comment applies to it.
(4) The ICCPR. The Attorney General pointed out, quite correctly, that article 4(1) of the ICCPR, in requiring that a measure introduced in derogation from Covenant obligations must not discriminate, does not include nationality, national origin or "other status" among the forbidden grounds of discrimination: see Goodwin-Gill, "International Law and the Detention of Refugees and Asylum Seekers" (1986) 20 International Migration Rev 193, 199; Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary, 2nd ed (2004), p 829, para 25.61. It appears that this was deliberate: UN Doc E/CN. 4/SR. 330 (United Nations Economic and Social Council, Commission on Human Rights, Eighth Session, 313th meeting, 10 June 1952), pp 3-4. However, by article 2 of the ICCPR the states parties undertake to respect and ensure to all individuals within the territory the rights in the Covenant "without distinction of any kind, such as race ….., national or social origin ….. or other status". Similarly, article 26 guarantees equal protection against discrimination "on any ground such as race, ….. national or social origin ….. or other status". This language is broad enough to embrace nationality and immigration status. It is open to states to derogate from articles 2 and 26 but the United Kingdom has not done so. If, therefore, as I have concluded, section 23 discriminates against the appellants on grounds of their nationality or immigration status, there is a breach of articles 2 and 26 of the ICCPR and so a breach of the UK's "other obligations under international law" within the meaning of article 15 of the European Convention.
(5) The UN Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live 1985. As is apparent from the wording of this Declaration, quoted in para 58 above, it sanctions differences in the treatment of nationals and aliens only so long as they are not "incompatible with the international legal obligations of the State, including those in the field of human rights". Section 23 is incompatible with articles 5(1)(f) and 14 of the European Convention and articles 2, 9 and 26 of the ICCPR, all of which express international obligations of the United Kingdom.
(6) The EC Treaty. The Attorney General pointed out that article 39(3) of the EC Treaty is so drafted as not to encroach on member states' general right to control the entry and activity of aliens, and the 13th recital to Council Directive 2000/43/EC expressly excludes differences based on nationality from the scope of the Directive. It cannot, however, avail the Secretary of State that the United Kingdom is not in breach of the EC Treaty and this Directive if it is in breach of the European Convention.
(7) The European Convention. It was pointed out, quite correctly, that article 16 sanctions the imposition by member states of restrictions on the political activity of aliens. To that extent, as in the context of immigration, aliens are distinguishable from citizens. But there is nothing in the Convention to warrant the discriminatory detention of aliens against whom action is not being taken with a view to deportation or extradition.
(8) Reference was made to three United States authorities. In the first of these, Shaughnessy v United States, ex rel Mezei 345 US 206 (1953), the applicant was held not to be entitled to the protection of the due process clause because, although he had previously lived in the United States for some twenty five years before a nineteen month break, he was treated on his return as not having entered the country. This is not a decision which would be followed by the European Court, which in D v United Kingdom (1997) 24 EHRR 423, para 48, showed some impatience with what in Lynch v Cannatella 810 F 2d 1363 (1987), para 27, was called "the entry fiction":
"Regardless of whether or not he ever entered the United Kingdom in the technical sense it is to be noted that he has been physically present there and thus within the jurisdiction of the respondent State within the meaning of Article 1 of the Convention since 21 January 1993."
In Fernandez v Wilkinson 505 F Supp 787 (1980) the alien had again not been admitted to the United States, but despite the "time-honoured legal fiction" of non-entry Judge Rogers, sitting in the US District Court for Kansas, drew on customary international law to hold that the alien could not be detained indefinitely when there was no prospect of removing him. The alien in Zadvydas v Davis 533 US 678 (2001) had been admitted to the United States and a majority of the Supreme Court held that he could not be detained indefinitely if there was no prospect of removing him. The court did not have to consider the position of aliens judged to present a terrorist risk (p 696) but might well have sanctioned indefinite detention in such circumstances given the heightened deference shown by US courts to the judgments of the political branches with respect to national security: see Chae Chan Ping v United States 130 US 581 (1889); Wilsher, "The Administrative Detention of Non-Nationals Pursuant to Immigration Control: International and Constitutional Law Perspectives" (2004) 53 ICLQ 897, 912-917. It would however seem that such a ruling would be contrary to the American Convention on Human Rights 1969. In its Report on Terrorism and Human Rights (22 October 2002), the Inter-American Commission on Human Rights stated:
"350 ….. Even in respect of rights that may be the subject of limitation or derogation, states must comply strictly with the conditions regulating the permissibility of such limitations or derogations, which in turn are based upon the fundamental principles of necessity, proportionality and non-discrimination.
351 Also non-derogable under international human rights law and international humanitarian law is the requirement that states fulfil their obligations without discrimination of any kind, including discrimination based upon ….. national or social origin."
US authority does not provide evidence of general international practice.
LORD NICHOLLS OF BIRKENHEAD
LORD HOFFMANN My Lords,
"Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governours"
LORD HOPE OF CRAIGHEAD
"As indeed it is obvious, that, by its very constitution, every court of criminal justice must have the power of correcting the greatest and most dangerous of all abuses of the forms of law, - that of the protracted imprisonment of the accused, untried, perhaps not intended ever to be tried, nay, it may be, not informed of the nature of the charge against him, or the name of the accuser."
These were not idle words. When Hume published the first edition of his Commentaries in 1797 grave abuses of the kind he described were within living memory. He knew the dangers that might lie in store for democracy itself if the courts were to allow individuals to be deprived of their right to liberty indefinitely and without charge on grounds of public interest by the executive. The risks are as great now in our time of heightened tension as they were then.
Article 15(1) - the Derogation Order
"(1) In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided such measures are not inconsistent with its other obligations under international law."
"It is, furthermore, precisely because the Convention presupposes domestic controls in the form of preventive parliamentary scrutiny and posterior judicial review that national authorities enjoy a large margin of appreciation in respect of derogations."
The public emergency
"Apart from certain general requirements of customary international law, such as those which impose on a state international responsibility for denial of justice to aliens, or which require it to observe in its treatment of aliens certain minimum international standards, states are nowadays often under many treaty obligations as to the treatment of aliens in their territories."
In Chahal v United Kingdom (1996) 23 EHRR 413, 457, para 80 the European Court said that the protection afforded by article 3 of the Convention against ill-treatment was wider than that provided by articles 32 and 33 of the United Nations 1951 Convention relating to the Status of Refugees under which states are permitted to expel aliens on the grounds of national security. The assertion in this judgment of the primacy of the state's obligations under the European Convention must be understood as extending to the protections afforded by article 5 and by article14 also.
LORD SCOTT OF FOSCOTE
The 1998 Act
"Those articles are to have effect for the purposes of this Act subject to any designated derogation …
(as to which see section 14 …)."
Article 5 was one of the specified articles but article 15 of the ECHR, entitled "Derogation in time of emergency" (the text of which is set out in para 10 of the opinion delivered by my noble and learned friend Lord Bingham of Cornhill) was not. Unlike the specified articles article 15 did not, therefore, become part of our domestic law. It remained, and remains, no more than an article in a treaty to which the United Kingdom, by act of the executive, adheres.
"So far as it is possible to do so, primary and subordinate legislation must be read and given effect to in a way which is compatible with the Convention rights."
but subsection (2)(b) makes clear that the section
"… does not affect the validity, continuing operation or enforcement of any incompatible primary legislation …"
and section 4(2) says that if a court comes to the conclusion that a provision of primary legislation is not compatible with a Convention right, the court "may make a declaration of that incompatibility". The section does not identify the intended purpose of the declaration. It is, presumably, intended that the declaration will draw public attention to the incompatibility.
"any derogation by the United Kingdom from an article of the Convention or of any protocol to the Convention, which is designated for the purposes of this Act in an order made by the Secretary of State."
And subsection (6) says that
"A designation order may be made in anticipation of the making by the United Kingdom of a proposed derogation."
So the Secretary of State may make an order declaring in advance that the United Kingdom is proposing to enact legislation that is inconsistent with a Convention right. Section 14 does not so state but it is beyond argument that the validity under domestic law of the legislation once enacted is not dependent on there having been a derogation order. With or without a derogation order Parliament can enact legislation inconsistent with a Convention right provided that the statutory language makes clear the Parliamentary intention to do so.
"to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law"
These article 15 limitations on the power to derogate are not incorporated into section 14 of the 1998 Act. Indeed, section 14 prescribes no limitations of any sort on the Secretary of State's power to make a designated derogation order.
The Derogation Order 2001
Was there a public emergency threatening the life of the nation?
"To the extent strictly required by the exigencies of the situation"
Article 14 - discrimination
LORD RODGER OF EARLSFERRY
"In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."
There are three requirements. First, the measures must be taken in time of war or other public emergency threatening the life of the nation. Secondly, the state party may take measures derogating from its obligations only "to the extent strictly required by the exigencies of the situation." Lastly, the measures must not be inconsistent with the state's other obligations under international law.
"in the first place, the existence in the territory of the Republic of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its purposes; secondly, the fact that this army was also operating outside the territory of the State, thus seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly the steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of 1957."
The (relatively modest) scale of the terrorist activities in question can be gauged from the summary of the facts at p 18. Similarly, in its admissibility decision in Marshall v United Kingdom, 10 July 2001, unreported, the fourth section of the Court noted that in 1998 the authorities in Northern Ireland continued to be confronted with the threat of terrorist violence, even although, by that time, its actual incidence had gone down. There had therefore been no return to normality and there was no basis for the Court to controvert the authorities' assessment of the situation in the Province in terms of the threats which organised violence posed for the life of the community and the search for a peaceful settlement. In this connexion the Court went on to recall:
"that by reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogation necessary to avoid it...."
"First, it was considered by the Secretary of State that the serious threats to the nation emanated predominantly (albeit not exclusively) and more immediately from the category of foreign nationals."
There was no elucidation or elaboration of what exactly Mr Whalley meant by the threat emanating "more immediately" from the category of foreign nationals. Whatever its importance, however, Mr Whalley's statment is simply one element in the material which was before SIAC and on which they had to reach their conclusion.
"If there is to be an effective derogation from the right to liberty enshrined in article 5 in respect of suspected international terrorists - and we can see powerful arguments in favour of such a derogation - the derogation ought rationally to extend to all irremovable suspected international terrorists. It would properly be confined to the alien section of the population only if, as the Attorney General contends, the threat stems exclusively or almost exclusively from that alien section.
95. But the evidence before us demonstrates beyond argument that the threat is not so confined. There are many British nationals already identified - mostly in detention abroad - who fall within the definition of 'suspected international terrorists', and it was clear from the submissions made to us that in the opinion of the respondent there are others at liberty in the United Kingdom who could be similarly defined. In those circumstances we fail to see how the derogation can be regarded as other than discriminatory on the grounds of national origin."
In their view the evidence demonstrated beyond argument that the threat did not stem exclusively or almost exclusively from the alien section of the population. Since there could be discrimination in terms of article 14 only if the foreign and British suspects both posed a comparable threat, plainly SIAC concluded on the evidence that they did indeed do so. In other words SIAC were not satisfied that there was a material difference in the nature of the threat posed by foreign suspects such as would provide a rational justification for their detention while British suspects were not detained.
"While it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The Government believes that such draconian powers would be difficult to justify."
I consider it right to defer to the Government's considered judgment that it would be difficult to justify taking draconian powers to detain British suspects. In other words, the Government believe that they could not show that the indefinite detention of British suspects was justified, and hence strictly required, in terms of article 15(1), in order to meet the threat that they pose to the life of the nation. Starting from that premise, SIAC's conclusion, that the threats posed by the foreign and British suspects are comparable, leads to the further conclusion that the detention of the foreign suspects is not strictly required either. That further conclusion is not affected by the theoretical distinction that the foreign suspects can end their detention at any time by leaving for another country, whereas the British suspects could not. As the facts of the present cases demonstrate, the reality is that most of the foreign suspects who are detained cannot actually leave: they have nowhere to go and so face remaining in detention, indefinitely, for years on end.
LORD WALKER OF GESTINGTHORPE
"In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."
The derogation was effected by the Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644) made on 11 November 2001 and coming into force on 13 November 2001. The terms of the derogation (set out in a schedule to the Order and repeated almost word for word in the note verbale sent to the Secretary General of the Council of Europe on 18 December 2001) described the public emergency as follows:
"There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom."
It then referred to the Anti-terrorism, Crime and Security Act 2001 ("the 2001 Act") as follows:
"As a result of the public emergency, provision is made in the [2001 Act], inter alia, for an extended power to arrest and detain a foreign national which will apply where it is intended to remove or deport the person from the United Kingdom but where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic law powers."
(a) that there was not in November 2001 a "public emergency threatening the life of the nation" within the meaning of article 15;
(b) that the measures taken by and under the 2001 Act were not "strictly required by the exigencies of the situation";
(c) that those measures were on the contrary irrational, discriminatory and disproportionate.
The first ground of challenge is a question of fact and degree which does not depend on the terms of the 2001 Act (except that by section 30 of the 2001 Act a "derogation matter", as defined in that section, can be called into question only before or on appeal from SIAC, the Special Immigration Appeals Commission). The second and third grounds depend crucially on the terms of the 2001 Act and the factual evidence adduced before SIAC (of which your Lordships have seen the open part, but not the closed part). There are other subsidiary grounds of challenge. It is readily apparent that the fact that a state has decided to make a derogation from the Convention does not close the door to an examination of human rights issues. On the contrary, it opens the door even wider, because of the need for the measures to be "strictly required by the exigencies of the situation". Your Lordships have had the benefit of submissions in support of the appeals not only from leading counsel for the two sets of appellants but also (in writing and orally) on behalf of Liberty and (in writing only) on behalf of Amnesty International as interveners. Every possible line of argument has been explored, with a very full citation of human rights case law and other materials.
"It is certainly not the Court's function to substitute for the British Government's assessment any other assessment of what might be the most prudent or most expedient policy to combat terrorism. The Court must do no more than review the lawfulness, under the Convention, of the measures adopted by that Government from 9 August 1971 [the date of introduction of internment] onwards. For this purpose the Court must arrive at its decision in the light, not of a purely retrospective examination of the efficacy of those measures, but of the conditions and circumstances reigning when they were originally taken and subsequently applied."
The reference to the Court is of course to the European Court of Human Rights itself. But in my view the same principle applies, with little less force, to review by a national court. The judgment continued, at p 96, para 220:
"When a State is struggling against a public emergency threatening the life of the nation, it would be rendered defenceless if it were required to accomplish everything at once, to furnish from the outset each of its chosen means of action with each of the safeguards reconcilable with the priority requirements for the proper functioning of the authorities and for restoring peace within the community. The interpretation of article 15 must leave a place for progressive adaptations."
"It would be a mistake to suppose that the UK law devoted to the suppression of terrorism is particularly modern, let alone a reaction to the events that convulsed the world following the attacks in the United States in September 2001. Continuing problems in Northern Ireland meant that the statute books were replete with offences directed against terrorist groups and their activities. Some time before the American events and in the light of a continued improvement of the situation in Northern Ireland, it had been decided to replace the legislation hitherto designated as 'temporary' with a revised framework. The opportunity was to be taken at the same time to acknowledge that there was an increasingly international dimension to terrorism, and the result was the Terrorism Act 2000. Further initiatives were taken in response to the American atrocities, in the Anti-terrorism, Crime and Security Act 2001. These confirm and extend the measures relating to, for example, proscribed organizations, ie organizations (including Irish and other domestic or foreign groups) membership of or support for which is a criminal offence. The jurisdiction of the courts was extended to cover inciting terrorism overseas, and to deal with bribery and corruption outside this country. The law was also extended in certain respects to cater for the situation where the motivation for the commission of offences against the person or public order offences was religious hatred. The Acts additionally offer extended police powers, including powers to set up cordons, compulsory obtaining of testimony and evidence, additional disclosure powers in connection with financial organizations, account monitoring information, arrest without warrant, stop and search, search of premises, search of persons, parking restrictions, port and border controls, retention of communications data, electronic surveillance, curtailment of access to legal advice and the right to silence, and prohibitions on torture."
There is also some detailed material in Professor Clive Walker's Blackstone's Guide to the Anti-Terrorism Legislation (2002), another work to which I acknowledge my indebtedness.
(a) article 3's prohibition on torture is absolute, and Chahal could not be returned to India;
(b) his detention during the protracted litigation, lengthy though it was, was not unreasonable or unlawful, but he could be detained only so long as his deportation was the end in view;
(c) the limited degree of judicial review of his detention and proposed deportation infringed article 5(4) of the Convention.
"If there is a danger of torture, the Government must find some other way of dealing with a threat to national security".
That is what Part 4 of the 2001 Act was intended to do.
(1) When this country is faced, as it is, with imminent threats from enemies who make use of secrecy, deception and surprise, the need for anti-terrorist measures to be "strictly necessary" must be interpreted in accordance with the precautionary principle recognised by the Strasbourg Court in Ireland v United Kingdom.
(2) I agree with the Court of Appeal, and very respectfully disagree with SIAC and the majority of the House, on the issue of discrimination.
(3) SIAC is an independent and impartial tribunal of unquestioned standing and expertise. It carefully considers any appeal by a suspected terrorist, and periodically reviews any of its decisions which have been adverse to a detained suspect. I would in no way dissent from condemning the odiousness of indefinite detention at the will of the Executive, but such a description cannot be applied to detention under Part 4 of the 2001 Act without so much qualification as to amount almost to contradiction.
I will add some brief comments on the second and third points.
"Whenever a person argues that a measure is discriminatory the state could always caricature the argument as an argument that the state has not gone far enough.
To take an extreme example which one hopes would never happen in this country: suppose the state announces that there is an economic crisis and that it is necessary in the public interest that property should be seized without compensation. It seeks to derogate from Art. 1 of Protocol 1. But then suppose that the state announces that the only property which is to be seized is that belonging to Jewish people. Immediately the question of discrimination arises. In one sense it could be said that the state has acted more proportionately by drafting its measure in a narrow way rather than by hitting everyone in society. But no one could seriously suggest that such a measure was compatible with human rights principles, because it would constitute the most offensive kind of discrimination."
"As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be 'minimal', that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator."
BARONESS HALE OF RICHMOND
"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases . . .".
"In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under the Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable . . . The minority possess their equal rights, which equal law must protect, and to violate would be oppression."