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Cite as: [2004] QB 335, [2002] EWCA Civ 1502, [2003] 1 All ER 816, [2003] 2 WLR 564

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JISCBAILII_CASE_IMMIGRATION

		Neutral Citation Number: [2002] EWCA Civ 1502
		Case No: C/2002/1710

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SPECIAL IMMIGRATION APPEALS COMMISSION

Royal Courts of Justice
Strand, London, WC2A 2LL

25th October 2002

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND & WALES
LORD JUSTICE BROOKE
and
LORD JUSTICE CHADWICK
____________________

Between:

	A, X and Y, and OTHERS	Claimants/ Respondents
	and –
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant/ Appellant

____________________

Lord Goldsmith QC, Ian Burnett QC, Philip Sales and James Eadie (instructed by the Treasury Solicitor) for the Appellant
Been Emmerson QC and Raza Husain (instructed by Birnberg Peirce & Partners) for A and Others)
Manjit Gill QC, Stephanie Harrison and Adrian Berry (instructed by Tyndallwoods) for X and Y)
David Pannick QC, Rabinder Singh QC and Murray Hunt (instructed by Liberty as interveners)
Hearing dates : 7-9th October 2002
____________________

HTML VERSION OF JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
____________________

SUMMARY

(This summary is for the assistance of the press

and forms no part of the judgment of the Court.)

The Court of Appeal (Lord Woolf CJ, Brooke LJ and Chadwick LJ) in the case of A, X and Y & Ors v Secretary of State have unanimously allowed the Secretary of State’s appeal from the decision of the Special Immigration Appeals Commission (“SIAC”). They are also agreed that the Respondents’ cross-appeals should be dismissed.

The case concerns a challenge to the lawfulness of the Anti-Terrorism, Crime and Security Act 2001 (“the 2001 Act”) and of the Human Rights Act 1998 (Designated Derogation) Order 2001 (“the Order”). These measures were introduced following the terrorist attacks in America on 11 September 2001. They permit the Government to detain indefinitely foreign nationals who are suspected of links with terrorist activity or organisations where those foreign nationals cannot be deported as being a threat to national security (for example, because they will suffer death or torture if returned to their country of nationality). The measures represent the Government’s response to a perceived state of “public emergency” justifying a derogation from the right to liberty enshrined in Article 5 of the European Convention on Human Rights (“the Convention”).

SIAC found that these measures were discriminatory in effect as they did not apply equally to British nationals suspected of terrorist links. As such they were contrary to Article 14 of the Convention. The Court of Appeal has reached a different conclusion on the basis that British nationals (who cannot be removed from this country) are not in an analogous situation to foreign nationals who currently cannot be deported because of fears for their safety. Such foreign nationals do not have a right to remain in this country but only a right (for the time being) not to be removed for their own safety. In addition, it is well established in international law that, in some situations, states may distinguish between nationals and non-nationals, especially in times of emergency.

Furthermore, the Court of Appeal has concluded that Parliament was entitled to limit the measures proposed so as to affect only foreign nationals suspected of terrorist links because of Article 15. This Article permits measures that derogate only “to the extent strictly required by the exigencies of the situation” (Article 15 of the Convention). In the Court’s view, Parliament was entitled to reach the conclusion that only detention of the limited class of foreign nationals with which the measures are concerned was “strictly required” in the circumstances.

In allowing the appeal, the Court has been strongly mindful of its duty under the Human Rights Act to scrutinise legislation and Governmental action in the light of the rights guaranteed by that Act. This the Court has done. When doing so in the particular context in which this challenge arises, namely a state of public emergency, the Court must also recognise that the Executive is in a better position than a Court to assess both the situation and the action which is necessary to address it. The Court, therefore, accords a degree of deference to the views of the Executive.

The individual circumstances of each respondent have yet to be considered by SIAC. The respondents also have rights of review by SIAC of their current position.

Index

Lord Woolf CJ		Para
Introduction		1
2.	The background to the Secretary of State’s case	11
3	The Derogation Order	20
4	The 2001 Act	24
5	The Secretary of State’s case	28
6	Article 15 and is there a state of emergency?	32
7	Discrimination	37
8	The Respondent’s Submissions	38
9	Conclusions on the Respondents’ contentions
	First Submission	39
	Second Submission	42
	Third to Fifth Submission	44
	Submissions Six to Eight: Discrimination	45
10	Article 6	57
11	Article 3	58
12	Did SIAC misunderstand its role?	59
13	The opinion of the Commissioner for Human Rights	60
14	The Joint Committee of Parliament on Human Rights	63
Brooke LJ
1	Introductory: the four main issues	65
2	The proper standard of judicial scrutiny: SIAC’s approach	66
3	ECHR Article 15 and judicial supervision: the ECHR case law	72
4	Judicial supervision in human rights cases and issues of deference	81
5	The meaning of “public emergency” in ECHR Article 15	82
6	Reliance on intelligence material	86
7	My conclusion on the first and fourth main issues	90
8	Did Parliament go further than was strictly required?	91
9	My conclusion on the second main issue	99
10	Differential treatment of non-nationals: the facts of the present case	100
11	Differential treatment of non-nationals: relevant principles of international law	112
12	My conclusion on the third main issue	133
Chadwick LJ		134
1	The Statutory framework which underlies this appeal	135
2	The Derogation Order	137
3	The existence of a public emergency threatening the life of the nation	140
4	Measures strictly required by the exigencies of the situation	145
5	Discrimination	152

The Lord Chief Justice:

1. Introduction

This is an appeal from a decision of the Special Immigration Appeals Commission (SIAC) of the 30th July 2002. SIAC (Mr Justice Collins, Chairman, Lord Justice Kennedy and Mr Mark Ockelton) quashed the Human Rights Act 1998 (Designated Derogation) Order 2001 (“the Order”) and granted a declaration under section 4 of the Human Rights Act 1998 (“the HRA”) that section 23 of the Anti-Terrorism, Crime and Security Act 2001 (“the 2001 Act”) is incompatible with Articles 5 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) in so far as it permits detention of suspected international terrorists in a way that discriminates against them on the ground of nationality.

The appeal arises out of the steps which this country decided to take in the interests of national security as a consequence of the attacks which took place in the United States on the 11th September 2001. Among these steps were the making of the Order and the passing of the 2001 Act. They gave the Secretary of State new powers to detain non-nationals who resided in this country if the Secretary of State suspected that they were terrorists. After the legislation had been passed eleven people were detained. The two who have left the country but have not dropped out of the picture because SIAC has allowed them to continue their appeals. So all have appealed The other nine (“the respondents”), as they were entitled to, appealed to SIAC after they had been detained.

In order to achieve their detention the Secretary of State was required to issue a certificate under section 21 of Part 4 of the 2001 Act. An appeal against detention is brought under section 25 of the 2001 Act. That section provides:

“(1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21.

(2) On appeal the Commission must cancel the certificate if –

(a) it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), or

(b) it considers that for some other reason the certificate should not have been issued.”

SIAC is required to carry out a first review after six months of the issue of a certificate or the final determination of an appeal against a certificate and thereafter at three monthly intervals. Decisions of SIAC are subject to a further appeal to this court, but only on a point of law under section 27 of the 2001 Act. The present appeal is brought under that section. Section 30 prevents the detention of persons in the position of the respondents being questioned in any legal proceedings except on an appeal to SIAC. Section 35 of the 2001 Act constitutes SIAC a superior court of record.

On the appeal to SIAC the respondents challenged the lawfulness of every aspect of the action taken by the Secretary of State which resulted in their being detained. The challenge included the question of whether the Secretary of State, in the case of each respondent, could have reasonably believed that his presence in United Kingdom is a risk to national security or could have reasonably suspected that he was an international terrorist. This aspect of their appeals turns on their individual circumstances and so has not yet been considered by SIAC, but adjourned until the outcome of their remaining grounds of appeal are known.

The respondents’ appeal succeeded on the grounds which were based on discrimination. The other grounds were unsuccessful but they are the subject of a cross appeal and the cross appeal has been fully argued before this court both orally and in writing. However, David Pannick QC, who appears on behalf of Liberty, who intervened in the proceedings before SIAC and before us, is undoubtedly correct in submitting that it is the issue of discrimination which goes to the heart of this appeal.

The alleged discrimination is based on the fact that the 2001 Order and Act allow only suspected terrorists who are non-nationals to be detained when there are equally dangerous British nationals who are in exactly the same position who cannot be detained. The right not to be discriminated against is one of the most significant requirements of the protection provided by the rule of law. It is now enshrined in Article 14 of the ECHR, but long before the HRA came into force the common law recognised the importance of not discriminating. The importance of not discriminating explains why every judge on taking office makes a vow to “do right to all manner of people.... without fear or favour affection or ill will”. The vice involved in discrimination was well identified by Associate Justice Jackson of the US Supreme Court in 1948:

“. . . 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.” Railway Express Agency v New York 336 US 106 (1949) at 112-113.

In the case of the ECHR, it is Article 14 which prohibits discrimination. Article 14 is in these terms:

“The enjoyment of the rights and freedoms set forth in (the) 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 to be observed that Article 14 does not create a free-standing right. It requires the rights and freedoms which are secured by the ECHR to be enjoyed without discrimination. The fact that the right not to be discriminated against is not a freestanding right does not diminish its importance. The principle of non-discrimination applying as it does, to all freestanding rights, is fundamental to the values that the ECHR and the HRA are intended to protect.

The danger of unjustified discrimination is acute at times when national security is threatened and it is important that the courts take particularly seriously any allegation of unlawful discrimination as a result of an action which is said to have been taken in the interests of national security. This is especially the case if, as here, non-nationals are being detained based on conduct which has not been proved but is only suspected. The mistakes which have been made in the past, in relation to internment of aliens at the outbreak of war, should not be forgotten.

The same importance was attached by the ECtHR to the protection provided by Article 5 (the right not to be unjustifiably detained) in Aksoy v Turkey [1996] 23 EHRR 553 at paragraph 76 where it is stated:

“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 right of 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”.

On this appeal both Articles 14 and 5 are in play.

2. The background to the Secretary of State’s case

In order to understand the arguments made on behalf of the Secretary of State by Lord Goldsmith, Her Majesty’s Attorney General, for stating that there has been no unlawful discrimination in confining the 2001 Order and Act to non-nationals, it is first necessary to take into account the history and development of the rights of states to detain and exclude aliens under international law. This aspect of the appeal has been fully considered by Lord Justice Brooke in his judgment and I gratefully adopt his account.

It is also necessary to set out the position in domestic law prior to the Order and Act of 2001. This is contained in the Immigration Act 1971 as amended (“1971 Act”). The significant point here is that the powers of detention and deportation contained in the 1971 Act are accepted not to involve discrimination and to be in accordance with well-established principles of international law, although they do not apply to those who have the right of abode in this country. It follows that there are well-identified circumstances where there is justification for treating those who can be broadly described as non-nationals differently from nationals.

Section 1 of the 1971 Act establishes the general principle that British citizens and certain Commonwealth citizens have the right of abode in United Kingdom. That is the right “to live in, and to come and go into and from the United Kingdom without let or hindrance”. Others, that is non-nationals, require permission “to live, work and settle” here, and their entry into and stay in this country is subject to regulation and control.

The 1971 Act contains powers of deportation which do not apply to those who have the right of abode. One ground on which an order to deport can be made is that the Secretary of State is of the opinion that the deportation will be conducive to the public good. The public good includes the interests of national security. This was originally a prerogative power of the Crown without any right of appeal, but it is now contained in the 1971 Act (section 3 (5)). Criminal courts also have powers to make recommendations for deportation after an alien has been convicted. A recommendation for deportation may result in the Secretary of State delaying making a deportation order until many years later because he has to wait until the defendant has served his sentence. Again this is not suggested to be discriminatory, even though there is no similar power in the case of those who commit exactly the same criminal offence but have the right of abode.

When a deportation order or a decision to deport has been made, the person who is the subject of the order or the decision may be detained pending his deportation (Schedule 3, paragraph 1). Not infrequently there can be a situation where the Secretary of State is empowered to make a deportation order under the 1971 Act, but there is no country to which it is possible to send the individual concerned without risking his life, or subjecting him to the possibility of torture, or where no country can be identified which is prepared to accept him.

In this situation the question arises both under domestic law and the ECHR as to how long it is appropriate to detain the individual whom it is proposed to deport. The position in domestic law was considered in R v Governor of Durham Prison ex p Singh [1984] 1 WLR 704. It was held that the power to detain is limited as a matter of construction of the legislation to such time as is reasonable to enable the process of deportation to be carried out, and that deportation should follow promptly upon the making of a deportation order. It followed that the power of detention should not be exercised unless the person subject to a deportation order could be deported within a reasonable time. A consequence of this decision, which has been generally accepted as correctly setting out the legal position, is that under the Act of 1971 it is not possible to detain someone pending deportation if it is known that a deportation is not possible.

In Chahal v United Kingdom [1996] 23 EHRR 413 the ECtHR held that to deport someone who, if the order for deportation was executed, could suffer torture, would constitute a violation of Article 3 of the ECHR. Furthermore the court made it clear that detention for an excessive duration would contravene Article 5 (1). Article 5 (1) provides:

“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…”

The legal position after Chahal is not in dispute. The Secretary of State could, when national security required, detain pending deportation a person who did not have the right of abode in this country if he was in the position to carry out the deportation in a reasonable time but not otherwise. It was this position that the Order and Act of 2001 purported to address. For this purpose Article 15 (1), together with sections 1 (2) and 14 HRA, were relied upon.

Section 1 (2) HRA states that the Articles of the ECHR are “to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15)”.

Section 14 (1) contains a definition of a “designated derogation”. It includes (b) “any derogation by the United Kingdom from an Article of the Convention,…which is designated for the purposes of this Act in an order made by the Secretary of State”. It is not necessary to deal with section 15 as it is concerned with reservations.

3. The Derogation Order

The Order was made on the 11th November 2001, and it came into force on the 13th November 2001. It stated that “the proposed derogation by the United Kingdom from Article 5 (1) of the Convention, set out in the Schedule to this Order, is hereby designated for the purposes of the 1998 Act in anticipation of the making by the United Kingdom of the proposed derogation”. The Schedule referred to the events of the 11th September 2001. It stated that the threat from international terrorism is continuing, and mentioned resolution 1373 (2001) of the Security Council requiring “all States to take measures to prevent the commission of terrorist attacks, including by denying safe haven to those who finance, lend, support or commit terrorist attacks.”

The Order also refers to the fact that there was a terrorist threat to this country from persons suspected of involvement in international terrorism. In addition, the Order refers to the fact that as a result of the public emergency the Act of 2001 contains an extended power to arrest and detain a foreign national “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”.

The Order goes on to give further details of the provisions of the 2001 Act and refers to the existing powers to detain pending deportation on the ground that a person’s presence is not conducive to the public good on national security grounds. Reference is also made to the position in relation to Article 5 (1) (f). The Explanatory Note to the Order refers in particular to the problem which can exist where it is not possible to deport a non-national because the deportation would result in treatment contrary to Article 3.

In view of the way that the Order is framed, it is self-evident that if it is necessarily discriminatory to treat alien suspected international terrorists differently from those who are suspected to be in exactly the same position but have the right of abode, then the objective of the Order was to permit discrimination.

4. The 2001 Act

In the 2001 Act the relevant statutory provisions are contained in Part 4. Part 4 is entitled “Immigration and Asylum” The commencement date for Part 4 was the 14th December 2001. The power of the Secretary of State to certify is contained in section 21 and is in these terms:

“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.”

A person who is so certified is referred to as a suspected international terrorist and terrorism has the meaning given by s.1 of the Terrorism Act 2000 (see s.21 (5)). Section 1 reads: -

“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”.

The provisions of s1 (4) show that it can extend to acts which may be aimed at or will affect countries other than the United Kingdom. Section 21 continues, so far as material: -

“(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.”

Sub-section (2) of section 22 identifies a series of actions which can be taken in relation to immigrants, from refusing leave to enter or remain to taking a decision to make a deportation order and making a deportation order under section 5 (1). Section 22 (1) sets out when these actions can be taken in respect of a suspected terrorist. The subsection is in these terms:

“22 (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 detention of a suspected international terrorist (in respect of whom the Secretary of State has certified) is provided for in section 23. Section 23 provides:

“(1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from United Kingdom is prevented (whether temporarily or indefinitely) by….”. [There are then set out precisely the same two circumstances as are contained in section 22 (1) (a) and (b) (see above)]

“(2) the provisions mentioned in subsection (1) are--

(a) paragraph 16 of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal) and

(b) paragraph 2 of Schedule 3 to that Act (detention pending deportation).”

The statutory provisions referred to in section 23 (2) are the ordinary powers of detention contained in the Immigration Act 1971. This draws attention to the fact that the provisions of Part 4 purport to do no more than reverse the legal position which existed subsequent to the decision in Chahal. In other words they allow a suspected international terrorist who does not have a right of abode, alone, to be detained even though for the time being it is not possible to deport him. In relation to those who are not suspected international terrorists who are liable to be deported, but cannot be deported, the position remains as it was prior to the 2001 Act. As with the Order, if to treat suspected terrorists who do not have a right of abode differently in this way is discriminatory, then it is not argued that SIAC was wrong to make a declaration of incompatibility.

5. The Secretary of State’s case

Lord Goldsmith submits that the action taken to, in effect, reverse Chahal in the case of suspected international terrorists is no more than an immigration measure which is permissible because of the derogation from Article 5 (1). He submits that detention and deportation of aliens has always been governed by immigration legislation which has not been regarded as unlawfully discriminating against aliens. Detention, although it may be for an extended period, under the 2001 Act should be treated in the same way. It enables the government to take the action which is necessary and proportionate to deal with the emergency. He submits that this approach is in accordance with international law. The relevant comparator for aliens who represent a threat to national security but cannot be removed, remain other aliens who represent a threat to national security but can be expelled in the ordinary way. The detention of aliens who cannot be expelled is the best available alternative for dealing with the threat to national security, whilst protecting the aliens’ rights under Article 3.

Lord Goldsmith adds that it remains as legitimate for a State to treat the aliens in this category differentially from its nationals as it is legitimate for a State to treat aliens differentially who represent the same threat to national security but happen in to be in a position where the State’s preferred solution (expulsion) is available. Lord Goldsmith contends that the derogation, is in substance, no more than an adjustment to Article 5 (1) (f) that enables a subset of aliens whom the UK wishes to deport, but cannot for the moment, to be detained during a national emergency.

Before SIAC, Lord Goldsmith argued that in addition to the derogation from Article 5 (1) there had been an implied derogation in relation to Article 14. This argument was rejected by SIAC (paragraph 66) and is not relied on in this court. SIAC also rejected an argument which depended upon the fact that Article 14 was a parasitic provision which did not create a freestanding right not to be the subject of discrimination. It was submitted that the result of this was that: first, there had to be discrimination in relation to an article which created positive rights, here Article 5, and secondly, because of the derogation from Article 5(1), it was not possible to have discrimination in relation to detention that, otherwise, would undoubtedly have contravened Article 5 (1). SIAC rejected this argument as well. SIAC relied on the Republic of Ireland v UK [1978] 2 EHRR 25 and Abdulaziz v UK [1985] 7 EHRR 471.

I can also reject this argument straight away. Quite apart from the authorities on which SIAC rely I agree with SIAC that, notwithstanding the derogation there can still be discrimination in relation to Article 5 read with Article 14. The derogation is limited to extending the period of time during which the detention can continue; that is the Chahal point. Article 5 is still capable of being applied together with Article 14 in relation to conduct which is not the subject of the derogation. Therefore if there has been discrimination contrary to Article 14 when read with Article 5, which is not dependent on the inability to deport a detainee, this still can constitute a breach of Article 5. This is precisely the nature of the discrimination upon which the respondents rely. The respondents contend that the fact that they cannot be deported is irrelevant when considering whether their detention contravenes Article 14. This is because there are others in the same position who are not capable of being detained because they are nationals. If there has been discrimination, as SIAC held, I accept both the Order and the Act 2001 are flawed and the order made by SIAC was justified and SIAC was right to reject this argument.

6. Article 15 and is there a state of emergency?

Before proceeding further it is convenient to consider whether there has been compliance with the threshold requirements for derogation. They are set out in Article 15 of the ECHR and are in these terms:

“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.

2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (Paragraph 1) and 7 shall be made under this provision.

3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed”.

There are 3 issues in relation to Article 15. The first is whether there is an “emergency threatening the life of the nation”. The respondents point to the fact that no other European country has found it necessary to derogate. However, SIAC considered that the United Kingdom could be distinguished from its neighbours. It is regarded as a prime target. Furthermore there is ample evidence that if a strike were to be made against the United Kingdom the results would be devastating. In addition, quite apart from the possibility of an attack similar to that which took place on 11 September 2001 there are other possibilities. No other European nation is threatened in quite the same way. Having fully examined the evidence, SIAC expressed its conclusions on the subject in these terms:

“35. We have also scrutinised all the material put before us with care. We recognise that much is at stake for those such as the appellants who are affected by the decisions of the Secretary of State but we recognise too that much is at stake for the citizens of the United Kingdom. We are satisfied that what has been put before us in the open generic statements and the other material in the bundles which are available to the parties does justify the conclusion that there does exist a public emergency threatening the life of the nation within the terms of Article 15. That the risk has been heightened since 11 September 2001 is clear, but we do not regard that description as in any way inconsistent with the existence of an emergency within the meaning of Article 15. The United Kingdom is a prime target, second only to the United States of America, and the history of events both before and after 11 September 2001, as well as on that fateful day, does show that if one attack were to take place it could well occur without warning and be on such a scale as to threaten the life of the nation.”

Before SIAC the evidence fell into two parts, the open evidence and the closed evidence. We have not seen the closed evidence. We were not invited to do so and it was not necessary for us to see the closed evidence, as this is an appeal only on law. However, it is obvious that SIAC on this first issue were entitled to come to the conclusion which they did. SIAC made no error of law.

The second issue is as to whether the derogation was “strictly required”. Again there is a finding of fact in the Secretary of State’s favour on this issue. In these circumstances it is not necessary for me to do more than refer to paragraphs 42 and 45 below and observe that there is a paradoxical feature to this case. It is the respondents’ and Liberty’s submissions, to which I will have to return, that the Secretary of State should have dealt with the discrimination problem by extending the right to detain to both nationals and non-nationals. However, it is the Secretary of State’s case that to do this would be to take more steps than were, in the words of Article 15, “strictly required by the exigencies of the situation”.

The third issue, apart from the position in international law which is dealt with in Brooke LJ’s judgment, raises the question whether the reference in Article 15 to “other obligations under international law”, includes obligations contained in the ECHR itself which are not the subject of the derogation, for example, Article 14. I regard this issue as being academic in this case and possibly in all cases. If, despite the derogation, there is still a contravention of the ECHR this can be relied upon by a complainant as the respondents seek to do here under Article 14 read with Article 5 without the need to rely on the terms of Article 15. In my judgment there is nothing in international law, as is explained by Brooke LJ, which would result in an infringement of this country’s obligations under international law if there is no contravention of Article 14 read with Article 5.

7. Discrimination

I now turn to the critical issue as to whether the ECHR permits the United Kingdom to detain only those who are non-nationals who are suspected of being international terrorists. The conclusions of SIAC on this issue are as follows:

“93. We reject the Attorney-General’s submission that the 2001 Act does no more than extend Article 5(1)(f) of the European Convention without changing its nature in any fundamental respect. Critically underlying any normal and lawful action within Article 5(1)(f) is the prospect within a reasonable time of the detainee being transferred to a place where he or she will be at liberty. In paragraph 113 of its judgment in Chahal (supra) the European Court said –

“Any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5(1)(f).”

94. That brings us to the Attorney-General’s submission that aliens have no general right to be here - at large among the population - even when they face persecution abroad. That seems to us to be an over simplification. The effect of the decision in Chahal, as we understand it, is that if the alien cannot be deported he must be allowed to remain. Indeed, that appears also to be the effect of the decision of the Court of Appeal in Kariharan and others v Secretary of State for the Home Department [2002] EWCA Civ 1102, handed down on 25 July 2002, of which we have seen a copy and to which our attention was drawn by the parties. A person who is irremovable cannot be detained or kept in detention simply because he lacks British nationality. In order to detain him there must be some other justification, such as that he is suspected of having committed a criminal offence. 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 suspected irremovable 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 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.

CONCLUSIONS

96. Two consequences follow. The first is that, for the reasons we have given at paragraph 66, the detention of the appellants breaches their ‘Convention rights’ under the Human Rights Act, for the detention is discriminatory and there is no scheduled derogation from Article 14. Merely scheduling such a derogation would not assist, however, for in our judgment in any event there is not a reasonable relationship between the means employed and the aims sought to be pursued, and accordingly we must make the declaration of incompatibility which has been sought. We recognise, of course, that such a declaration may be of little if any assistance to the appellants should Parliament decide to deal with the discrimination which we perceive to exist by extending the power of detention to nationals.”

8. The respondents’ submissions

In support of his contentions as to the correctness of the decision of SIAC Mr Emmerson identified eight core submissions and, as they encapsulate the principal arguments of all the respondents at this stage, it is convenient to set out all eight submissions, whilst recognising that to an extent the submissions overlap:

“1. The central issue on this appeal is whether the Secretary of State is entitled to say that because he chose immigration control as the means to respond to the claimed public emergency it follows that it is legitimate to treat nationals and aliens differently, or whether – as the Respondents contend, and as SIAC concluded – it is necessary to look behind that choice and ask why, in response to a threat that was posed by British nationals as well as aliens, the Secretary of State chose to focus on the alien population alone.

2. Both the purpose of Part 4 ATCSA, and its terms, are directed to a different and wider target than the claimed national emergency emanating from the risk of a terrorist attack against the United Kingdom by the Al Qa’eda network. They are at the same time both over-inclusive and under-inclusive (and in this latter respect discriminatory).

3. Part 4 was directed towards reversing the effect of the decisions in Chahal v United Kingdom (1996) 23 EHRR 413 and Hardial Singh [1984] 1 WLR 704. As such, it is necessarily inconsistent with the requirement that the derogating measures be carefully tailored to meet the exigencies of a threat of terrorist attack on the United Kingdom or its population. This is firstly because it encompasses those, like Chahal himself, who pose no direct threat to the United Kingdom (since their threatened actions are directed only against foreign states); and secondly because it simultaneously excludes British nationals whose presence does pose a direct and immediate threat of terrorist attack in the United Kingdom. There is thus an obvious mismatch between the claimed public emergency and the scope and purpose of the legislation.

4. Since the condition for a lawful derogation under Article 15 depends upon the measures being strictly required by a public emergency threatening the life of the nation – that is, the United Kingdom – the broad formulation of national security adopted in Secretary of State for the Home Department v Rehman [2001] 3 WLR 877 is inapplicable to the test for derogation under Article 15.

5. It is clear from the evidence before SIAC (and from the terms of the legislation itself) that Part 4 ATCSA was intended to encompass foreign nationals, such as Chahal, Singh and Rehman, whose activities posed no direct threat to this country. This is apparent from Mr. Whalley’s first witness statement [Core Bundle p. 147 paras. 5 to 8] and from the evidence given by the Secretary of State to the Joint Human Rights Committee [B1: 186], (where the Secretary of State said in terms that the justification for the legislation “rests” on the need to detain suspected terrorists who may be using the United Kingdom as a base for planning attacks on other states). A measure which is intentionally framed so as to authorise the detention of foreign nationals who pose no direct threat to the United Kingdom, but who pose a threat to friendly foreign states, as a central objective that extends beyond the strict exigencies of the claimed national emergency.

6. The evidence before SIAC established “beyond argument” that the existing threat to the United Kingdom was posed by British nationals as well as foreign nationals. Judged by reference to the threat on which the claimed public emergency rests, a British suspected terrorist who poses a threat to the United Kingdom is in an analogous position to a suspected terrorist who is a foreign national but who cannot be removed or detained due to the decisions in Chahal and Hardial Singh. For the purposes of Article 14 analysis:

(a) There must, by definition, be a rational connection between the purpose of the measure complained of, and the essential characteristics on which it is based.

(b) In order to be in an analogous position, the selected comparator has to share the same defining characteristics as the complainant, judged in relation to the purpose of the measure complained of.

(c) The essential characteristics justifying detention under Part 4 ATCSA are (i) the fact that the individual is a suspected international terrorist and (ii) the fact that he cannot be removed from the UK.

(d) It is undeniable that a significant number of British nationals qualify as suspected international terrorists.

(e) It is artificial to say that British nationals are not in an analogous position because they have an unqualified right to remain whilst foreign nationals detained under Part 4 have only a contingent right not to be removed. Since Chahal, foreign nationals who cannot be removed because their removal would expose them to a risk of treatment in breach of Article 3 have a legally enforceable (Convention) right to remain. That is a right recognised in the national legal order through the Human Rights Act. The suggested contingency (that the individual cannot for the time being be removed) is the very premise of Part 4 detention. Any person who may be detained under Part 4 has, by definition a Convention right not to be removed.

(f) The essence of the Secretary of State’s case thus rests on a distinction between those who have a right to remain and those who have a right not to be removed. Whilst there is a difference between the legal status of the two groups, it is not a relevant or sufficient distinction, as the basis for justifying difference of treatment in relation to a power of detention which is intended to protect the UK against a threat that is posed by British nationals and aliens alike. Given that the threat is neutral as to nationality (or immigration status) the legal distinction between the status of the two groups bears no connection to the justification for detention.

(g) Alternatively, even if it is a relevant distinction, it does not account for the extent of the difference in treatment and is for that reason disproportionate. The position would be otherwise if the power of detention was neutral on its face and the complaint was that it had been applied primarily against foreign nationals. There, it would be a justification to say that the threat stemmed predominantly and more immediately from foreign nationals. But in order to justify a power of detention which can only be applied to foreign nationals, it would be necessary to show that the threat stemmed exclusively or almost exclusively from that group.

(h) By choosing an immigration measure which seeks to reverse the effect of Chahal and Hardial Singh the Secretary of State adopted an unjustified difference in treatment between the two classes. Not only does the legislation aim at a wider target than is justified by the public emergency, but it misses a significant part of the target at which it is intentionally directed. Moreover, as a discriminatory derogating measure it is, by definition, disproportionate.

7. The purpose of the legislation in reversing Chahal and Hardial Singh is, in this sense, in harmony with its terms. The Respondents point to three key features of Part 4 which reflect this: (a) the legislation permits the detention of foreign nationals who pose no threat to the United Kingdom; (b) it does not permit the detention of British nationals who do pose a direct threat to the United Kingdom or are active members of Al Qa’eda; and (c) it permits a suspected international terrorist who has been detained under its provisions to leave the country and resume his activities from abroad, even though these may involve terrorist activities directed towards the United Kingdom, its citizens or interests. Each of these three features is a direct result of the Secretary of State’s choice of immigration control as the means by which to respond to the threat which Al Qa’eda network is said to pose to the United Kingdom. There is thus a fracture, or fault line, which separates the purpose and form of the legislation from (a) the stated purpose of the derogation and (b) the form which the legislation would have taken if it were properly tailored to meet the claimed national emergency.

8. If ATCSA were rationally connected to [a] need to protect the United Kingdom from a threat of terrorist attack it would;

(i) permit only the detention of those who posed a direct threat to the United Kingdom through association with the Al Qa’eda network;

(ii) permit the detention of such persons regardless of their nationality or immigration status;

(iii) permit their detention for the duration of the national emergency without permitting them to leave the country if they chose to do so in order to resume their activities from abroad.

9. Conclusions on the respondents’ contentions

First Submission

As to Mr Emmerson’s first submission, I accept that a court is not necessarily confined by the language of the Order and Act of 2001 when deciding the discrimination issue. The court is concerned with the reality. However, there is no suggestion that the Secretary of State was not perfectly bona fide in coming to the conclusion, which he says he did, that the action that was necessary was limited to removing or detaining suspected aliens who are not nationals who had unconditional rights of abode in this country. Clearly there can be situations when this action will achieve all that is required. If this is the position, then it is sensible and appropriate to use immigration legislation to achieve this objective, because it will (a) result in those who can be deported being dealt with under the ordinary immigration procedures, and (b) confine to a minimum the need to use special powers of detention. In addition, the situation can change so that those who originally had to be detained under the special powers can be deported under the ordinary powers. This is of course subject to the action which has been taken not contravening Article 14.

Whether the Secretary of State was entitled to come to the conclusion that action was only necessary in relation to non-national suspected terrorists, who could not be deported, is an issue on which it is impossible for this court in this case to differ from the Secretary of State. Decisions as to what is required in the interest of national security are self-evidently within the category of decisions in relation to which the court is required to show considerable deference to the Secretary of State because he is better qualified to make an assessment as to what action is called for. If authority is required for this proposition, then it is provided by Brown v Stott [2001] 2 WLR 817 at pp 834-5, Home Secretary v Rehman [2001] 3 WLR 877 at pp 896-7, Ireland v UK [1978] 2 EHRR 25 para 206 p 91, R v Secretary of State ex parte Farrakhan [2002] EWCA Civ 606, and International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158 at [77] and [80] – [87]; dealing with the parallel situation as to whether there was a “public emergency” and Chahal (supra, para 138 p 420). However, as the ECtHR pointed out, the court retains its supervisory role.

In addition, it is wrong to suggest, as this submission does, that it is on the choice of immigration control that the Secretary of State’s case is based. His case is based on his decision that, in order to meet the present situation, he need only take action against suspected terrorists who have no right to remain in this country but cannot be deported.

Second Submission

I turn to the second core submission that Part 4 of the 2001 Act is both over-inclusive and under-inclusive. The over-inclusive contention arises because the terrorist activities, to which Part 4 of the 2001 Act applies, go beyond those required by the emergency in relation to which the derogation was made. This is an issue on which Mr Manjit Gill has provided additional written submissions which I found helpful. I accept that on the language of Part 4 it is over-inclusive. But in practice this is not a point of substance. Lord Goldsmith gave SIAC on behalf of the government an undertaking that Part 4 would be only used for the emergency which was the subject of the derogation. I agree with Mr Manjit Gill that the court should not allow an undertaking on behalf of the government “ameliorating the potential effect of the legislation to shift the concept of legal certainty and rights away from the solid bedrock to sandy foundations”. However, here the powers contained in Part 4 could only be used to the extent that they were covered by the Order, otherwise they would fall foul of Article 5. The Secretary of State is required to give reasons for his decision and those reasons can be inquired into by SIAC so there is no real risk of anyone being prejudiced by Lord Goldsmith's undertaking not being complied with. This was the view of SIAC, who also referred to section 3 HRA which could be used, if necessary, to restrict the use of Part 4. However, I do not consider this would be necessary because of the other reasons I have given.

As to under-inclusion, it is necessary to consider at least two candidates. First, there are the suspected terrorists who are nationals. Then there are the suspected terrorists who are not nationals, who once they leave the country will be free to engage in activities hostile to this country. Mr Whalley, who has made a statement on behalf of the Secretary of State covering this point, contends that irrespective of whether non-national suspect terrorists are detained or leave this country, the terrorist organisation in the UK will be disrupted. He also relies on the fact that the detention or deporting of non-national suspected terrorists will indicate that this country is not a safe haven for terrorists. Placing on one side the issue of discrimination, these are points which depend on the evidence before SIAC and do not call for resolution on this appeal.

Third to Fifth Submissions

The third, fourth and fifth core submissions cover very much the same ground and so are covered by what I have already stated. The exception is Mr Emmerson’s submissions about Secretary of State for Home Department v Rehman [2001] 3 WLR 877, [2001] UKHL 47. That case is important for the clear statements contained in the speeches of the House of Lords as to the deference which should be extended to the executive on matters of national security (see in particular the speeches of Lord Steyn and Lord Hoffmann). It is also important because it recognises that conduct which is directed at a foreign state can have direct implications for the national security of this country. The extent of the threat, required as a pre-condition to derogation, is more extensive than that required by the interests of national security. It is a public emergency threatening the life of the nation. It is the broader formulation of national security which was considered in Rehman. Despite this the same general approach is clearly appropriate. Where international terrorists are operating globally and committing acts designed to terrorise the population in one country, that can have implications which threaten the life of another. This is why a collective approach to international terrorism is important. As the Order recognises, we are concerned here with a threat identified by the United Nations Security Council as “a threat to international peace and security”. A threat which required all States to take measures “to prevent the commission of terrorist attacks, including by denying safe haven to those who finance, plan, support or commit terrorist attacks”. While the courts must carefully scrutinise the explanations given by the executive for its actions, the courts must extend the appropriate degree of deference when it comes to judging those actions.

Submissions Six to Eight: Discrimination

The remaining core submissions, while in part also covering the same ground as the earlier submissions, go to what is the main issue, namely, discrimination. Was the UK government entitled to single out non-nationals who could not be deported in the foreseeable future as the subject of the Order and the 2001 Act? Here I differ from SIAC, largely because of the tension between Article 15 and Article 14. Article 15 restricts the extent of the derogation to what is strictly necessary. That is what the Secretary of State has done on his evidence. Of course, he did so for national security reasons. No doubt, by taking action against nationals as well as non-nationals the action from a security point of view would have been more effective. Equally, if the non-nationals were detained notwithstanding the fact that they wanted to leave this country, the action would be more effective. However, on his assessment of the situation, the Secretary of State was debarred from taking more effective action because it was not strictly necessary.

SIAC came to the conclusion at paragraph 94 that if an “alien cannot be deported he must be allowed to remain”. That is correct, but as already stated that does not create a right to remain, only a right not to be removed. For example, if later the alien can be deported, he can be removed and pending removal detained. Because of this difference alone, aliens can be objectively distinguished from non-aliens.

SIAC go on to say that the threat is not confined to aliens (and that is agreed), but SIAC then wrongly conclude that this means there must be discrimination on the grounds of nationality as aliens are not nationals. This is an over-simplification. It was eloquently urged on behalf of the respondents, and particularly by Mr Pannick. It is an over-simplification because the position here is that the Secretary of State has come to the conclusion that he can achieve what is necessary by either detaining or deporting only the terrorists who are aliens. If the Secretary of State has come to that conclusion, then the critical question is, are there objective, justifiable and relevant grounds for selecting only the alien terrorists, or is the discrimination on the grounds of nationality? As to this critical question, I have come to the conclusion that there are objectively justifiable and relevant grounds which do not involve impermissible discrimination. The grounds are the fact that the aliens who cannot be deported have, unlike nationals, no more right to remain, only a right not to be removed, which means legally that they come into a different class from those who have a right of abode.

The class of aliens is in a different situation because when they can be deported to a country that will not torture them this can happen. It is only the need to protect them from torture that means that for the time being they cannot be removed.

In these circumstances it would be surprising indeed if Article 14, or any international requirement not to discriminate, prevented the Secretary of State taking the restricted action which he thought was necessary. As the respondents accept, the consequences of their approach is that because of the requirement not to discriminate, the Secretary of State would, presumably, have to decide on more extensive action, which applied both to nationals and non-nationals, than he would otherwise have thought necessary. Such a result would not promote human rights, it would achieve the opposite result. There would be an additional intrusion into the rights of the nationals so that their position would be the same as non-nationals.

The ECHR is essentially a pragmatic document. In its application it is intended to achieve practical benefits for those who are entitled to its protection. The Secretary of State is not entitled to adopt an irrational approach, either under the Convention or at common law. He is required to point to an objective justification for adopting the distinction which he is making. This he does here, in my judgment, on solid ground because of the distinction between aliens and nationals which is part of domestic and international law. As I have stressed, an alien’s right to reside in this country is not unconditional. True it is that the respondents cannot be deported, but that does not mean that they are in the same position as nationals. They are still liable to be deported, subject to the decision of SIAC on their personal circumstances, when and if this is practical.

It is to be hoped that although there is no time limit which at present can be imposed upon their detention, the regular review of their positions, which the legislation requires, will result in their detention being of limited duration.

However, contrary to the view of SIAC, I consider the approach adopted by the Secretary of State, which involves detaining the respondents for no longer than is necessary before they can be deported, or until the emergency resolves, or they cease to be a threat to the safety of this country, is one which can be objectively justified. The individuals subject to the policy are an identifiable class. There is a rational connection between their detention and the purpose which the Secretary of State wishes to achieve. It is a purpose which cannot be applied to nationals, namely detention pending deportation, irrespective of when that deportation will take place.

The fact that deportation cannot take place immediately does not mean that it ceases to be part of the objective. This is confirmed by the fact that two of the respondents were able to leave this country. It is suggested that the action is not proportionate. However, I disagree. By limiting the number of those who are subject to the special measures, the Secretary of State is ensuring that his actions are proportionate to what is necessary. There is no alternative which the respondents can point to which is remotely practical. It is wrong to regard the Chahal case as establishing that those who cannot be removed have a legally enforceable right to remain. They have a right not to be removed so as to protect their right not to be subject to treatment in breach of Article 3, but that is not the same thing as having “a legally enforceable (Convention) right to remain”.

In Michalak v London Borough of Wandsworth [2002] EWCA Civ 271 at [20] Lord Justice Brooke helpfully summarised the questions that may be asked where discrimination arises, while stressing that he was only providing a framework and indicating that there is a potential overlap between the considerations. He also warned against treating the questions as a series of hurdles. However, the questions were:

“1) Do the facts fall within the ambit of one or more of the substantive Convention provisions (for the relevant Convention rights see Human Rights Act 1998, Section 1(1))?

2) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison (“the chosen comparators”) on the other?

3) Were the chosen comparators in an analogous situation to the complainant’s situation?

4) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship or proportionality to the aims sought to be achieved?”

Lord Justice Brooke added that the third test addresses the question whether the chosen comparators were in a sufficiently analogous situation to the complainant’s situation for the different treatment to be relevant to the question whether the complainant’s enjoyment of his Convention right has been free from Article 14 discrimination.

I will shortly answer each of those questions. As to the first question, the answer is yes. As to the second question, the answer is also yes, the chosen comparators, here being aliens and nationals who are suspected terrorists. As to the third question, I say those comparators were not in an analogous situation because the nationals have a right of abode in this jurisdiction but the aliens only have a right not to be removed. Finally, as to the fourth question, as I set out above, I consider the distinction between the position as to removal of nationals and non-nationals, together with the fact that the non- nationals but for the problem of torture could be removed, means that the difference in treatment does have an objective and reasonable justification.

10. Article 6

It remains for me to deal with certain other subsidiary points which are advanced. The first is linked to the position in relation to the procedure adopted by SIAC. It is submitted that the proceedings relate to a criminal charge within the meaning of Article 6, giving rise to the application of the presumption of innocence, the right to disclosure of the case against them, and the material upon which it is based, to the fullest possible extent. As to this, I agree with SIAC that the proceedings are not criminal. I would, however, accept the fact that the proceedings are civil proceedings within Article 6. The proceedings before SIAC involve departures from some of the requirements of Article 6. However, having regard to the issues to be inquired into, the proceedings are as fair as could reasonably be achieved. It is true that the respondents and their lawyers do not have the opportunity of examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with Article 6 it is necessary to look at the proceedings as a whole (including the appeal before this Court). When this is done and the exception in relation to national security, referred to in Article 6, is given due weight, I am satisfied there is no contravention of that Article.

11. Article 3

The respondents also argued before SIAC and this Court that the scheme of detention adopted by the 2001 Act contravened the principle in Article 3 ECHR that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. I agree with SIAC that this argument must fail. The class of detainees with which we are concerned could not be deported by the Government, and this is because of respect for their Article 3 rights. It was for precisely this reason that the scheme being challenged was adopted. It has not been shown that there is something in the manner of their detention which places it in the class of “inhuman or degrading treatment or punishment”, to which Article 3 is directed. On the assumption that the respondents’ detention is lawful there is no evidence that their detention, which is not intended to be punishment, is inhuman or degrading.

12. Did SIAC misunderstand its role?

In paragraph 21 of its decision SIAC states, “we are satisfied that our proper function in the context of this case is to decide whether the decision that there was such an emergency as justified derogation was one which was reasonable on all the material, or to put it another way was one which he (the Secretary of State) was entitled to reach”. Taken in isolation it is suggested this indicates SIAC were adopting the wrong approach of treating their role as the same as that on judicial review – the Wednesbury approach. When the passage concerned is read in context, it is clear that SIAC well understood its role and in the passage which is the subject of objection were merely giving effect to the need to allow a reasonably wide margin of discretion. For example, at the beginning of paragraph 21 SIAC states “we must, as the appellants have submitted, consider the material for ourselves and decide whether the decision that there exists a public emergency threatening the life of a nation can be supported”.

13. The opinion of the Commissioner for Human Rights

After the decision of SIAC the Commissioner for Human Rights, Mr Alvaro Gil-Robles, gave a carefully reasoned opinion on aspects of the United Kingdom’s derogation from Article 5. He made certain critical comments. These comments deserve greatest attention, not only because of the distinguished status of the Commissioner but because to an extent they are supported by the report of the Joint Committee of Parliament on Human Rights. It is right that this court should take them into account if they assist the respondents’ case. First, in relation to the inadequacy of the UK procedure with respect to derogations, he was concerned about the sequence of events which meant that the Order was made before the first draft of the proposed Bill was laid before Parliament. He suggested that the consequence was that “two small parliamentary hurdles are substituted for one large one”. This is not a matter with which the court can deal, but is a matter for Parliament to deal with. However, on the material which before us, it is difficult to accept that Parliament was unaware of what was intended at all material times. Certainly the important matter was that the position was clear beyond peradventure before the Act was passed. As the Order is of no value without the Act of 2001, there does seem to be, with respect, little in this point. In addition, on enquiry of the Attorney General, we were told, as we expected, that the practice of information being made available “on Privy Council terms” to the opposition was followed in this case.

The Commissioner was also unhappy about the frequency of the review procedure of the legislation, in particular, the sunset clause of five years. However, the legislation does require regular supervision by SIAC at the times I have already indicated; so that means that the present respondents will not suffer as a result of the five year period. The same applies to the reservation (the ground for which is neither specified or understood) which the Commissioner had as to the independence of the person appointed under section 28 (1) of the 2001 Act to review its operation.

Finally, the Commissioner raises a number of points as to the appropriateness, the proportionality and the necessity of the action of which the UK government has taken. These are points which not surprisingly the respondents are also taking, and in the course of this judgment I hope I have expressed my views upon them. I agree, however, with the Commissioner that action of the sort which the UK government has taken “can be justified only under the most limited of circumstances”.

14. The Joint Committee of Parliament on Human Rights

I have also considered the second and fifth reports of the Joint Committee of Parliament on Human Rights. The Committee examined the Bill which became the 2001 Act. Both reports expressed concerns about the Bill which the Committee had to examine at great speed. In the fifth report the Committee acknowledged that there had been improvements to the Bill as a result of the second report. However, the Committee still had a number of concerns. The first concern related to the power of detention. This should only be used where it is impossible or inappropriate to prosecute the detained person and the Secretary of State is searching diligently for a safe country. There is nothing to suggest at this stage that this concern is not being met. The second and third concern, which relates to the jurisdiction of SIAC and the ability of the Secretary of State to rectify, also do not apply to the respondents at the present time. The fourth and final concern relates to special advocates being available to this Court. At the beginning of the hearing such advocates were available but we released them, as they would not be required. The reports, while valuable, do not therefore affect these appeals.

What I have set out above means that I would allow this appeal. In those circumstances, the question does arise as to what added protection the HRA has provided for the respondents. I believe that additional protection is substantial. Before SIAC, two of whose members were senior judges, and before this court, the issues raised by the respondents were examined in a way which would not have been possible before the HRA came into force. Before both tribunals the standards that the ECHR requires were applied by SIAC and this court, but this court has concluded that applying those standards the action which has been taken by the appellant is lawful and complies with the ECHR. While the respondents are detained the same scrutiny can be repeated if the circumstances change sufficiently to justify this. This is a very considerable protection which would not have been available either to nationals or non-nationals prior to the HRA coming into force. The unfortunate fact is that the emergency which the government believes to exist justifies the taking of action which would not otherwise be acceptable. The ECHR recognises that there can be circumstances where action of this sort is fully justified. It is my conclusion here, as a matter of law, and that is what we are concerned with, that action is justified. The important point is that the courts are able to protect the rule of law.

Lord Justice Brooke :

1. Introductory: the four main issues

It is convenient to deal with the issues that arise on the cross-appeals first. The language of ECHR Article 15 (cited by Lord Woolf CJ in para 32 of his judgment), threw up three main issues for SIAC’s consideration:

(1) Was there a public emergency threatening the life of the nation on each occasion when the Secretary of State considered this question?

(2) If so, were the measures this country took limited to those strictly required by the exigencies of the situation?

(3) If so, were they consistent with this country’s other obligations under international law?

Before one can sensibly address these issues there is another question which must be addressed first:

(4) What is the role of the judiciary when issues of this kind fall under judicial scrutiny?

2. The proper standard of judicial scrutiny: SIAC’s approach

SIAC directed themselves that they must not adopt the approach that just because the Secretary of State has said there is such a public emergency therefore there is one. They must consider the material for themselves and decide for themselves whether this decision can be supported. In this context they reminded themselves of the guidance given by Lord Steyn in R(Daly) v Home Secretary [2001] UKHL 26 at [27] and [28], [2001] 2 AC 532 and by Lord Hoffmann, with particular reference to questions of national security, in Home Secretary v Rehman [2001] UKHL 47 at [57] and [58], [2001] 3 WLR 877.

Lord Woolf CJ has referred (at para 57 of his judgment) to the way in which SIAC said in paragraph 21 of their determination that “we are satisfied that our proper function in the context of this case is to decide whether the decision that there was such an emergency as justified derogation was one which was reasonable on all the material, or to put it another way, was one which [the Secretary of State] was entitled to reach. We do not accept that we should make the decision for ourselves.”

They then reminded themselves that the right to liberty enshrined in ECHR Article 5 was one of the rights of fundamental importance. After citing Aksoy v Turkey (1996) 23 EHRR 553 at para 76 (for which see the judgment of Lord Woolf at para 10), they said:

“It is to be noted that judicial control through SIAC is to be maintained and that in carrying out the exercise of balancing the need for derogation against its impact on personal liberty consideration must be given to the human rights of probably thousands, including in particular the even more important right to life, which may be gravely affected if the risk materialises.”

After referring to the Strasbourg caselaw which relates to the meaning of a “public emergency threatening the life of the nation” (for which see paras 72 – 80 below) SIAC devoted 12 long paragraphs of their determination to answering the question “Is there a state of emergency?” In paragraph 35 they gave an affirmative answer to this question in the terms set out by Lord Woolf CJ in para 35 of his judgment.

We have been shown the open material which led the Security Service to assess that a risk of this dimension existed. Most of this material was before the Secretary of State when he made his original assessment in October 2001. On 18th June 2002 he reassessed the situation on the basis of all the information which was now to hand and reached the same conclusion. He noted that his assessment of the seriousness of the risk coincided with that of the United States Government in their domestic context.

On the appeal to this court nobody suggested that SIAC was not addressing the right question in paragraph 35 of their determination There was strong criticism, however, of paragraph 21. It was suggested that SIAC was adopting an old-fashioned Wednesbury approach when they suggested that they should ask themselves whether the decision of the Secretary of State was “reasonable on all the material”, or alternatively one which he was entitled to reach.

3. ECHR Article 15 and judicial supervision: the ECHR case law

As SIAC noted, the language of ECHR Article 15 has been considered on a number of occasions at Strasbourg. Earliest in time is Lawless v Ireland (No 3) (1961) 1 EHRR 15, where the applicant was complaining that the Irish Government had detained him without trial for five months under legislation directed against the IRA. The ECtHR directed itself (at para 28) that:

“… the natural and customary meaning of the words ‘other public emergency which affects 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.”

It went on to determine whether the facts and circumstances which led to the making of the relevant proclamation by the Irish Government came within this concept, and it found that the existence of such an emergency was reasonably deduced by the Irish Government from a combination of several factors:

(i) the existence in its territory of a secret army engaged in unconstitutional activities and using violence to attain its purposes;

(ii) the fact that this army was also operating outside the territory of the state, thus seriously jeopardising its relations with its neighbour; and

(iii) the steady and alarming increase in terrorist activities for nine months, culminating in a homicidal ambush in the territory of Northern Ireland near the border which brought to light 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.

I have referred to the facts of this case because we received submissions to the effect that the language of ECHR Article 15 should be narrowly construed. This case shows the Strasbourg court more than willing to consider the effect on the life of a nation of terrorists whose activities outside its territory were seriously jeopardising its relations with a neighbouring state.

In its report on the Greek case (1969) 12 Yearbook para 153, the European Commission on Human Rights suggested that a public emergency should have the following characteristics if it was to qualify under ECHR Article 15:

“(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.”

The Commission derived the notion of an imminent danger from the French text of the Convention, and it went on to suggest that when the ECtHR in Lawless said that the Irish Government reasonably deduced that the requisite state of affairs existed it was using the language of a margin of appreciation. In the First Cyprus case the Commission at para 136 had spoken of “discretion in appreciating the threat to the life of the nation”.

In Brannigan and McBride (1993) 17 EHRR 539 the ECtHR returned to this topic at paragraph 43. From this important passage the following principles can be derived:

(1) Each Contracting State has a responsibility for the life of its nation, so that it falls to the state to determine both whether the relevant emergency exists and how far it is necessary to go in attempting to overcome it.

(2) The state is in a better position than an international judge to decide such questions, and a wide margin of appreciation must therefore be left to the national authorities in this matter.

(3) This domestic margin of appreciation must be accompanied by a European supervision, but in exercising its supervision the court must give appropriate weight to all relevant factors.

When it came to apply this approach and make its own assessment (at para 47), the ECtHR considered in the light of all the material before it that there could be no doubt that a relevant public emergency existed at the relevant time.

In its recent decision on admissibility in Marshall v United Kingdom (10th July 2001) the ECtHR revisited this topic and applied the same tests. The following matters emerge from this decision (at pp 11-13):

(i) The proper function of the European supervising court on the second main issue (see para 65(2) above) is to decide whether the derogation was a genuine response to an emergency situation and whether the absence of judicial control of extended detention was justified;

(ii) In making this assessment the supervising court should have regard to the authorities’ margin of appreciation and the nature of the safeguards which existed to prevent abuse;

(iii) Nothing had happened in the nine years since Brannigan and McBride were detained such as to lead the court to controvert the authorities’ assessment of the situation in Northern Ireland;

(iv) As to the measures the authorities took in the present case it was not the role of the supervising court to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government, which had direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand and respecting individual rights on the other.

As between the national authorities and the Strasbourg court, therefore, it is for the national authorities to decide the answers to the first two main issues I have identified in paragraph 65 above, and for the Strasbourg court to be willing to afford them a wide margin of appreciation, bearing in mind their direct responsibility for the safety of their state, when it assesses whether their answers were correct in law, or whether it should controvert them or substitute its own view.

4. Judicial supervision in human rights cases, and issues of deference

In all the cases concerned with Northern Ireland prior to October 2000, however, there was no mechanism for judicial supervision of the relevant decisions of the government or the legislature of this country at national level. A number of recent decisions of the courts, however, have pegged out the course a national court should adopt, particularly in a matter affecting national security. They are now well known, and like Lord Woolf CJ, I will content myself with giving the leading references: R v DPP ex p Kebilene [2000] 2 AC 326, 380-1; Brown v Stott [2001] 2 WLR 817, 834; International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158 at [77] and [80] – [87]; and Home Secretary v Rehman (see para 64 above). It is convenient only to set out certain principles which I derive from Lord Hoffmann’s speech in Rehman, at paras 57-58 and 64:

(1) When there is an appeal to SIAC it is the Home Secretary, not SIAC, who is the principal decision-maker;

(2) It must be remembered that the Home Secretary has the advantage of a wide range of advice from people with day to day involvement in security matters which SIAC cannot match;

(3) Because what is at issue is an evaluation of risk, an appellate body traditionally allows a considerable margin to the original decision-maker. It should not ordinarily interfere with a case in which the Home Secretary’s view is one which could reasonably be entertained;

(4) Even though a very different approach may be needed when determining whether an appellant’s ECHR Article 3 rights are likely to be infringed, this deferential approach is certainly required in relation to the question whether a deportation is in the interests of national security;

(5) Although SIAC has the express power to reverse the exercise of a discretion, they should exercise restraint by reason of a common-sense recognition of the nature of the issue and of the differences in the decision-making processes and responsibilities of the Home Secretary and SIAC;

(6) The events of 11th September are a reminder that in matters of national security the cost of failure can be high. Decisions by ministers on such questions, with serious potential rights for the community, therefore require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process.

5. The meaning of “public emergency” in ECHR Article 15

Any judicial assessment of the quality of the Home Secretary’s decision-making process in the present case is inevitably made more complicated by the fact that he told a Parliamentary Committee in October 2001 that there was no immediate intelligence pointing to a specific threat to this country. There is, however, as I understand it, no direct challenge to his good faith. It appears to me that the answer to the conundrum posed by the language he used must be found in identifying the proper meaning of the word “imminent” as it appears in the French text of ECHR Article 15. This is a necessary part of the process of determining what the expression “public emergency threatening the life of the nation” really means.

SIAC considered this issue in paragraph 24 of their determination. They made the following points:

(1) It is not the imminence of a threat which is required, but the actuality or imminence of an emergency. This distinction is by no means an unreal one;

(2) The measures which involve the need to derogate are required to try to prevent the outrages which would have a disastrous effect if they occurred. It would be absurd to require the authorities to wait until they were aware of an imminent attack before taking the necessary steps to avoid such an attack;

(3) What is required is a real risk that an attack will take place unless the necessary measures are taken to prevent it;

(4) An emergency can exist and can certainly be imminent if there is an intention and a capacity to carry out serious terrorist violence even if nothing has yet been done, and even if plans have not reached the stage when an attack is actually about to happen.

I have not found this issue of interpretation an easy one. The importance the ECHR attaches to personal liberty and the rule of law is underlined by the fact that it requires an actual or imminent emergency of the type described in Article 15 before a Contracting State may lawfully derogate from the protections afforded by Article 5(1). While considering the issues in this anxious case I have constantly reminded myself of the powerful dissenting opinion of Mr Justice Jackson, with whom Mr Justice Frankfurter joined, in Shaughnessy v United States 345 US 205, 218-228 (1953). I quote just two passages:

“Fortunately it still is startling, in this country, to find a person held indefinitely in executive custody without accusation of crime or judicial trial. Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed or exiled save by the judgment of his peers or by the law of the land (p 218) …

Quite unconsciously, I am sure, the Government’s theory of custody for ‘safekeeping’ without disclosure to the victim of charges, evidence, informers or reasons, even in an administrative proceeding, has unmistakable overtones of the ‘protective custody’ of the Nazis more than of any determining procedure known to the common law (p226).”

After a good deal of hesitation I have concluded that it would be wrong to give an over-literal interpretation to the word “imminent” in the present context. Absent such an interpretation, there was ample material on which the Home Secretary could conclude that an emergency of the requisite quality existed. And if it did, even Mr Justice Jackson accepted (at p 223) that “due process of law will tolerate some impounding of an alien where it is deemed essential to the safety of the state”. Although the rights of the claimants to liberty and due process are potent considerations, so, too, as SIAC observed, are the rights of very many other people which the Home Secretary judged to be threatened if the claimants remain at large, including the right to life itself. I would therefore endorse SIAC’s approach to this issue.

6. Reliance on intelligence material

Turning to another point, I have read with great care the witness statements of the respondents’ solicitors and the other matters of factual detail which have been brought together conveniently in an appendix to Mr Gill’s skeleton argument. The Security Service has made a fairly brief reply to some of the points that have been made. Nobody who has read in any depth the history of miscarriages of justice in this country over the last 50 years, or who knows anything about the difficult problems that confront the intelligence community when they try to assess the quality and reliability of the information they receive, could approach the issues in this case with anything other than great anxiety. The difficulties which face the intelligence community, and those who have to decide how much reliance they can place on their advice, are compounded in a case like the present. Differences in language, differences in culture, and often very subtle differences in political or religious ideology abound. All these differences present formidable problems for the dispassionate assessor. Mistakes may well be made. That anxiety is heightened when one reads and re-reads the evidence of Gareth Peirce, a solicitor who has great experience in these matters, and of Natalia Garcia, the solicitors for X and Y.

But unless one is willing to adopt a purist approach, saying that it is better that this country should be destroyed, together with the ideals it stands for, than that a single suspected terrorist should be detained without due process, it seems to me inevitable that the judiciary must be willing, as SIAC was, to put an appropriate degree of trust in the willingness and capacity of ministers and Parliament, who are publicly accountable for their decisions, to satisfy themselves about the integrity and professionalism of the Security Service. If the security of the nation may be at risk from terrorist violence, and if the lives of informers may be at risk, or the flow of valuable information they represent may dry up if sources of intelligence have to be revealed, there comes a stage when judicial scrutiny can go no further.

In this context two passages in the Security Service evidence are of particular importance. The first is when its witness, whose credentials are impressive, speaks of the care the Service takes in determining whether it is safe to rely on intelligence information. The second is when he says that it is for practical reasons impossible to prosecute some of those the Service believes to be foreign terrorists because to attempt to do so would itself imperil national security.

On this appeal we are concerned not only with matters of personal liberty but with matters of life and death for possibly thousands of people. In these circumstances it appears to me that the arrangements that have been made for judicial supervision of the decision of Parliament, imperfect as they are, are the best that can be devised for a situation like this. Although the point did not really arise for decision on the appeal, since SIAC was able to reach their conclusion on the open material, it appears to me to be desirable that they should also have access to the closed material, and that the special advocate procedure is a better way of dealing with this than any procedure devised in this country in the past. Contrast, for example, section 4 of the Prevention of Terrorism (Temporary Provisions) Act 1974, whereby the Home Secretary received advice in private from an independent adviser in relation to challenges against an exclusion order and was not obliged to disclose the content of the advice, or to say whether he accepted it or not.

7. My conclusion on the first and fourth main issues

Like Lord Woolf CJ, I do not consider that SIAC misunderstood their function or misdirected themselves as to the nature of the job they were to do. I interpret the passage in paragraph 21 of their determination as applying in their own words the third principle suggested by Lord Hoffman in Rehman (see para 81(3) above). For these reasons I am unable to hold that SIAC was wrong (see CPR 52.11(3)(a)) to refuse to controvert the Home Secretary’s judgment on the question whether an emergency of the requisite seriousness existed. I would therefore dismiss the claimants’ appeal on the first main issue.

8. Did Parliament go further than was strictly required?

I turn to consider whether SIAC was wrong on the second main issue. Did Parliament go further than was strictly required by the exigencies of the situation when it enacted Part 4 of the 2001 Act? On this issue SIAC made a finding of fact against which in itself there can be no appeal, and I agree with what Lord Woolf CJ has said in paragraphs 42 to 44 of his judgment about the questions of law that relate to this issue. I wish, however, to add some comments of my own on some of the submissions we received.

Mr Emmerson QC maintained that Part 4 of the 2001 Act was directed to a different and wider target than the national emergency (from the risk of a terrorist attack against this country by members of the Al Qa’eda network) which for the purposes of this analysis must be assumed to exist. The Government made no secret of the fact that one purpose of the measure was to reverse the effect of the decisions of Woolf J in ex p Hardial Singh [1984] 1 WLR 704 and of the ECtHR in Chahal v United Kingdom (1996) 23 EHRR 413. In these circumstances Mr Emmerson submitted that it was necessarily inconsistent with the requirement that a derogating measure must be carefully tailored to meet the exigencies of the situation created by the emergency.

He drew the concept of “careful tailoring” from the judgment of McLachlin J in the Supreme Court of Canada in RJR-Macdonald Inc v Attorney-General of Canada [1995] 3 SCR 199. That case was concerned with the question whether legislative control of tobacco advertising infringed the Canadian Charter of Rights and Freedoms, and in paragraph 160 of her judgment, in a section headed “Minimal Impairment”, McLachlin J said:

“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. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement … On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.”

The language of section 1 of the Canadian Charter requires the party defending a law which violates any of the Charter’s rights and freedoms to show that the infringement is both reasonable and demonstrably justified in a free and democratic society (see McLachlin J at paras 126-129). I mention this because it is always dangerous to refer to an interpretation of a different human rights charter, however distinguished the source of that interpretation, without taking into account any significant differences in the language of that charter. Canadian judges have the power, which we do not, to strike down any non-compliant law. In these circumstances it is much safer to rely on the jurisprudence surrounding the Convention we are currently interpreting, if there is any significant difference in the language being construed.

Before leaving Canadian jurisprudence, however, it is instructive to see a similar approach there to the approach of our courts to the difficult issues that arise out of their duty to give deference to decisions made by another arm of government. In Libman v Attorney-General of Quebec (1997) 3 BHRRC 269, the court quoted the passage from RJR-Macdonald Inc I have cited and went on to say (at para 59):

“This court has already pointed out on a number of occasions that in the social, economic and political spheres, where the legislature must reconcile competing interests in choosing one policy among several that might be acceptable, the courts must accord great deference to the legislature’s choice because it is in the best position to make such a choice.”

A fortiori in the field of national security, and particularly when, as happened in this case, senior opposition parliamentarians were provided on Privy Council terms on several occasions with background details of the intelligence that informed the Home Secretary’s decision-making in connection with the derogation. It must not be forgotten, either, that Part IV of the 2001 Act was just one of the measures introduced to combat the emergency. It should not be looked at in isolation.

Mr Emmerson argued that the scope of Part 4 of the 2001 Act was unnecessarily wide because section 21 would permit the Secretary of State to issue a certificate in respect of somebody who satisfied the criteria set out in that section even though he had nothing to do with Al Qa’eda or its networks and the risk they posed to this country. We are not, however, concerned on this appeal with a general challenge to the vires of Part 4 of the 2001 Act, but only with the issues legitimately raised on the section 25 appeals of these particular claimants when they complain about the way the Secretary of State’s actions, under powers afforded to him under the Act, have affected them.

I agree with Lord Woolf CJ that the Secretary of State may not lawfully issue a certificate under section 21 unless he is empowered to do so under the terms of the derogation. This refers in terms to the threat to international peace and security identified by the terrorist attacks on 11th September. In other words it identifies the threat posed by Al Qa’eda and its associated networks (and no one else), and the Secretary of State has put the matter beyond doubt by the way his authorised witness explained to SIAC the factors that led him to identify a public emergency threatening the life of the nation.

9. My conclusion on the second main issue

For all these reasons I do not consider that in the context of these appeals it is possible to hold that Part IV of the 2001 Act went wider than was strictly required, or that SIAC was wrong in law in the way it approached this question.

10. Differential treatment of non-nationals: the facts of the present case.

Mr Emmerson then argued that if the 2001 Act was rationally connected with the need to protect this country from the threat of terrorist attack that is identified in the derogation, it would permit the detention of those who posed a direct threat to this country through association with the Al Qa’eda network regardless of their nationality or immigration status. This argument was linked with the ECHR Article 14 argument, and I will consider them together. In the latter context I bear in mind the view of the ECtHR, expressed in Gaygusuz v Austria (1997) 23 EHRR 364 at para 42, to the effect that differences in treatment on the grounds of nationality require very weighty justification.

By way of illustrating his submissions Mr Emmerson invited us to look up all the references in the papers to British nationals who were in some way connected with Al Qa’eda and its networks. A trawl through the papers identified:

(1) Upwards of a thousand people from this country who have attended the training camps in Afghanistan in the last five years. In this context there is also a reference to young British Muslims;

(2) Particular British citizens allegedly involved in terrorist activities of the kind in question, and the nine who were detained as a consequence of Coalition action in Afghanistan (and Pakistan);

(3) A preacher who was responsible for recruiting one of those detainees at a London mosque.

In his second statement Mr Whalley, who was authorised to give evidence on behalf of the Home Secretary, identified three considerations which had led the Home Secretary to introduce these measures only in relation to foreign nationals:

(1) His belief that the serious threats to the nation emanated predominantly (albeit not exclusively) and more immediately from the category of foreign nationals;

(2) The fact that foreign nationals generally have no right to be in this country and are subject to immigration control;

(3) His belief that there were adverse effects for this country, in meeting the emergency, arising from the continuing and unrestricted presence in the United Kingdom of suspected terrorists who could not be removed to third countries.

Although the claimants’ solicitors provide grounds for querying the cogency of much of the Security Service’s materials, it appears to me that there was evidence available to the Secretary of State, if he chose to accept it, to justify the first of these beliefs. I do not consider that in paragraph 95 of their determination SIAC made a finding of fact to contrary effect when they said that “there are many British nationals already identified – mostly in detention abroad – who fall within the definition of ‘suspected international terrorists’”. In that passage SIAC was concerned to rebut an argument that the derogation would properly be confined to the alien section of the population only if the threat stemmed exclusively or almost exclusively from that alien section. In other words, they were concerned only with numbers, not with the scale or immediacy of the threat created by the presence in this country of particular terrorists. For instance, five generals and their chiefs of staff may pose a more serious and immediate threat than 5,000 foot-soldiers.

The second of Mr Whalley’s considerations, though legally accurate, would not, if it stood alone, justify the identification of foreign nationals as being appropriate for discriminatory treatment of the type contemplated by the derogation and by Part IV of the 2001 Act: but see paragraphs 112-130 below.

The third, “safe haven”, consideration deserves slightly more attention. The open material suggests that foreign terrorists based in this country may have been actively engaged in planning terrorist attacks in friendly foreign countries. In some cases their extradition is being actively sought. In others it is impossible, on human rights grounds, to send them to countries where the authorities wish to prosecute them.

The case of Lawless (see paras 72-74 above) shows that the fact that terrorists based in one country are committing their terrorist attacks in a neighbouring country does not prevent the first country from empowering itself, by an Article 15 derogation, to restrict their liberty. The underlying reason for this is the same as that which appealed to the Court of Appeal and the House of Lords in the case of Rehman.

In that case the Secretary of State had decided to deport Mr Rehman on national security grounds because he was associated with an organisation involved in terrorist activities in the Indian sub-continent. In those circumstances SIAC considered that the words “the interests of national security” in section 15(3) of the Immigration Act 1971 should be interpreted as meaning that the activities of the person in question offended against national security if “he was involved in any way with violent activity which was targeted at this country directly or indirectly, or where United Kingdom citizens were targeted, wherever they might be.”

The Court of Appeal rejected this narrow interpretation (see [2000] 3 WLR 1240 at pp 1251-2), and the House of Lords upheld the Court of Appeal. Lord Slynn (at paras 15-17), Lord Steyn (at para 28) and Lord Hoffmann (at paras 46 and 49) all expressed in different language their reasons for preferring a broad interpretation of the words “national security”. It is sufficient merely to cite Lord Slynn at para 16:

“It seems to me that, in contemporary world conditions, action against a foreign state may be capable indirectly of affecting the security of the United Kingdom. The means open to terrorists both in attacking another state and attacking international or global activity by the community of nations, whatever the objectives of the terrorist, may well be capable of reflecting on the safety and well-being of the United Kingdom or its citizens. The sophistication of means available, the speed of movement of persons and goods, the speed of modern communications, are all factors which may have to be taken into account in deciding whether there is a real possibility that the national security of the United Kingdom may immediately or subsequently be put at risk by the action of others. To require the matters in question to be capable of resulting ‘directly’ in a threat to national security limits too tightly the discretion of the executive in deciding how the interests of the state, including not merely military defence but democracy, the legal and constitutional systems of the state need to be protected.”

Mr Emmerson and Mr Gill sought to persuade us that this immigration case raised different issues because of the wider language of section 15(3) of the 1971 Act. In the present context, so far as these claimants are concerned, I am not sure that this is so. The present emergency, in which Al Qa’eda and its networks are said to be willing to contemplate acts of terrorism on a worldwide scale, is one in which international co-operation is urgently required in combating the threat, and it appears to me to be legitimate for Parliament to restrict the activities of foreign terrorists who are engaged in causing terror abroad (or in training others to do so) as one means of meeting the emergency threatening the life of this nation.

Mr Whalley has described the problem facing the Government in these terms:

“…[The] Secretary of State considered that there were adverse effects for the United Kingdom, in meeting the emergency, arising from the continuing and unrestricted presence in the United Kingdom of suspected terrorists who could not be removed to third countries. In this regard, the assessment of the Government, at the highest level, was that there would be an adverse impact on the ability of the United Kingdom to build and maintain an effective international coalition in the fight against terrorism. That was because of a perception in other countries, including Muslim countries, that it was weak in its response to international terrorists operating in its territory (being apparently unable to deal with those whom the Secretary of State had determined should be removed on the basis that they were suspected, on objective grounds, of being terrorists).”

This consideration does not, however, justify targeting the 2001 Act at non-national terrorists alone, unless there was some other feature which distinguishes them from British nationals suspected of terrorism whom the state was unable to prosecute for fear of compromising its intelligence sources. This may well be the reason why it does not feature in the Secretary of State’s ground of appeal. For the necessary distinctions it is necessary to turn back to paragraph 103 of this judgment or forward to the well established principles of international law to which I now turn.

11. Differential treatment of non-nationals: relevant principles of international law

It has been a longstanding feature of international law that a state is entitled to treat non-nationals differently from nationals in time of war or other public emergency threatening its life as a nation. Oppenheim’s International Law (9th Edition), Vol 1, paras 378-9 contains a helpful discussion of the difference between nationals and non-nationals. In short, the nationality of an individual is his quality of being a subject of a certain state. In historical terms, the concept of nationality has its origins in the oath of allegiance owed by the subject to his king.

International law recognises that every state has a right of protection over its nationals abroad, and a duty to receive on its own territory such of its nationals as are not allowed to remain on the territory of other states. (This was the reason why this country received large numbers of East African Asians who were expelled from Uganda 30 years ago and had nowhere else to go). On the other hand no state has an obligation to allow foreigners to remain within its borders and is free to expel them, subject to any constraints imposed by international treaties, if there is another country to which it can send them which is bound to receive them.

As to the treatment of non-nationals in time of war, in earlier times all the citizens of an enemy state in time of war who were found on a belligerent’s territory could be immediately detained as prisoners of war. As early as the eighteenth century, however, a practice grew up of allowing enemy subjects a reasonable period of time in which to withdraw. Thus when 10,000 Englishmen, who were arrested in France by Napoleon at the outbreak of war with England in 1803, were kept as prisoners of war for many years, Napoleon did not justify this action because they happened to be on French soil at the outbreak of war. He maintained, in contrast, that it was a legitimate act of reprisal for what he saw as a prior violation by England of the Law of Nations by beginning hostilities without a formal declaration of war.

In Oppenheim, Disputes, War and Neutrality, 7th Edition (1951) Vol II, para 100, from which this history is taken, it is said that a customary rule of international law developed by which all subjects of the enemy who were not actual or potential members of its armed forces must be allowed a reasonable period for withdrawal once war was declared.

In the First World War this country, France and Germany all adopted a policy of general internment in relation to enemy aliens on their soil. When the Second World War was declared in 1939, the policy of internment was not so rigid, and as a consequence of the work of special tribunals the number of German nationals who remained in internment following a tribunal hearing was small in comparison with the numbers detained in the earlier war.

During the years since 1945 powers of internment relating to non-nationals on the soil of a state have been largely regulated by international treaty, but before examining the treaty dimension it is worth setting out two judicial statements, which state concisely the position in international law 100 years apart.

In Nishimura Ekia v United States 142 US 651, 659 (1892) the United States Supreme Court said:

“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”

In Chahal v United Kingdom (1996) 23 EHRR 413 the European Court of Human Rights said at para 731:

“… Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens.”

Even more recently, in R (Saadi) v Secretary of State for the Home Department [2001] EWCA Civ 1512 at [37], [2001] 4 All ER 961, Lord Phillips MR cited with evident approval the decision of the Privy Council in Attorney General for Canada v Cain [1906] AC 542 in which Lord Atkinson said at p 546:

“One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests: Vattal, Law of Nations, book 1, s 231; book 2, s 125.”

In the aftermath of the horrors of the Second World War the international community resolved to introduce by treaty a common set of standards governing the treatment of non-nationals on each other’s soil. At a very basic level, these standards proclaimed that there was in ordinary times no justification for a state to differentiate between nationals and non-nationals in matters concerned with fundamental human rights, such as the right to life, the right to protection from torture and cruel or inhuman treatment, and the right to liberty and security of the person (including protection from arbitrary arrest and detention). Principles of this kind have long been recognised by the English common law, as Lord Scarman observed in R v Home Secretary ex p Khawaja [1984] AC 74, 111:

“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.”

The Convention on the Protection of Civilian Persons in Time of War (1949) represented an early attempt to introduce these principles into an international treaty. It codified the rules by which enemy aliens were entitled to leave the territory of a belligerent “unless their departure was contrary to the interests of the state” (Article 35). It also provided that subject to the requirements of national security, enemy aliens who remained on the territory of a belligerent must be regulated, in principle, by the principles governing the treatment of aliens in time of peace (Article 38). Articles 41 and 42 provide:

“41 Should the Power in whose lands protected persons may be consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment.

42 The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.” (Emphasis added)

Article 43 contains an obligation to have detainees’ individual cases regularly reviewed by an appropriate court or administrative board, and much of this Convention is concerned with regulating the treatment of internees. In other words, it explicitly recognises the existence of special rules relating to the position of aliens in time of war.

Next in time was the European Convention on Human Rights (1950). Article 1 marked out the fact that the rights and freedoms set out in its first section were to be secured to everyone within the jurisdiction of the members of the Council of Europe. Its preamble acknowledged the fact that fundamental freedoms were best maintained not only by an effective political democracy, but also by a common understanding of the human rights upon which they depended. All-important in the context of the present appeal are Articles 5.1, 14 and 15.1, the terms of which Lord Woolf CJ has set out in paragraphs 17, 18 and 32 of his judgment.

At this stage it need only be noted that in the absence of an Article 15.1 derogation the only difference in treatment as between nationals and non-nationals which the Convention is willing to recognise is that set out in Article 5.1(f). Lord Woolf CJ has explained the limits placed on the power of detention contained in that provision in paragraph 16 of his judgment.

The international community next turned its attention to the treatment of refugees. The Convention Relating to the Status of Refugees (1951) contains three provisions which expressly permit a state to treat a refugee differently from others if questions of national security are involved. Articles 9, 32 and 33 provide, so far as is material, that:

“9. Nothing in this Convention shall prevent a contracting state, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the contracting state that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.

32.1 The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

32.2 The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before a competent authority or a person or persons specially designated by the competent authority.

32.3 The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

33.1 No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

33.2 The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, ...”

It is noteworthy that the United Kingdom Government also made an express reservation to Article 9 when it adhered to the Convention. Its reservation (for the text of which see Macdonald’s Immigration Law and Practice, 5th Edition, p 1679) begins:

“The Government of the United Kingdom … understand article … 9 as not preventing them from taking in time of war or other exceptional circumstances measures in the interests of national security in the case of a refugee on the grounds of his nationality.”

This reservation reflected its correct understanding of relevant principles of international law.

The Convention Relating to the Status of Stateless Persons (1954) made the same distinctions in matters relating to national security as the Convention Relating to Refugees: see the language of Articles 9 and 31, which correspond with Articles 9 and 32 of the earlier Convention. The UK Government made a similar reservation.

The International Covenant on Civil and Political Rights (“the ICCPR”) (1976), for its part, contains in Article 3 the obligation to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the Covenant. Article 9 protects the right of personal liberty, and Article 26 contains an express anti-discrimination clause along the same lines as ECHR Articles 5 and 14. The ICCPR, however, also contains (in Article 4) an express right of derogation in time of public emergency which threatens the life of the nation which is similar to ECHR Article 15.1, although the proviso is somewhat more extensive:

“provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”

It should be noted that discrimination on the ground of nationality or national origin is not included in this embargo. In other words, all these international treaties preserve the principle of international law I have set out in paragraph 112 above. In paragraphs 129 and 130 of his skeleton argument the Attorney-General drew attention to two further, more recent, international declarations to similar effect.

Issues relating to the power of a state to detain non-nationals in time of peace arose in a particularly vivid form in 1980, when 125,000 Cuban refugees arrived in the United States. In Shaughnessy v United States ex rel Mezei 345 US 206 (1953) the US Supreme Court had ruled in general terms that “the continued detention of an excludable but non-removable alien does not violate any statutory or constitutional right”. An influx of refugees on a massive scale, however, required the US courts to examine the criteria which should dictate which refugees should be detained, and which released.

In Fernandez v Wilkinson 505 F Supp 787, 796 (1981) a judge at first instance suggested that indefinite detention constituted a violation of international law. The more general view, however, was articulated by the District Court for the Northern District of Georgia in Fernandez-Roque v Smith 567 F Supp 1115 (1983) which held that the Government’s power to detain was conditional on there being clear and convincing evidence that those affected were likely to abscond, or posed a risk to national security or a significant and serious threat to persons or property. The court said that these were precisely the standards to be derived from general international law.

What emerges from the efforts of the international community to introduce orderly arrangements for controlling the power of detention of non-nationals is a distinct movement away from the doctrine of the inherent power of the state to control the treatment of non-nationals within its borders as it will towards a regime, founded on modern international human rights norms, which is infused by the principle that any measures that are restrictive of liberty, whether they relate to nationals or non-nationals, must be such as are prescribed by law and necessary in a democratic society. The state’s power to detain must be related to a recognised object and purpose, and there must be a reasonable relationship of proportionality between the end and the means. On the other hand, both customary international law and the international treaties by which this country is bound expressly reserve the power of a state in time of war or similar public emergency to detain aliens on grounds of national security when it would not necessarily detain its own nationals on those grounds.

In Belgian Linguistics (1962) 1 EHRR 252, 284 at para 10 the ECtHR said that in assessing any justification that was proffered for differential treatment regard should be had to the principles which normally prevail in democratic societies. The principle that democratic states are entitled to detain non-nationals on national security grounds in time of war or other public emergency is one which is very firmly established.

12. My conclusion on the third main issue

It appears to me, therefore, that two different considerations tend inexorably to the conclusion that SIAC’s conclusion was wrong on the third main issue. The first is that there were good objective reasons entitling the Secretary of State, if he chose, to make this distinction between nationals and non-nationals. The second is that both customary international law and the international treaties by which this country is bound give this country the right, in time of war or comparable public emergency, to detain non-nationals on national security grounds without necessarily being obliged to detain its own nationals, too.

For these reasons, I agree that the appeal of the Secretary of State should be allowed, and the orders made by SIAC set aside. I also agree that the cross-appeals should be dismissed.

Lord Justice Chadwick:

I agree that we should allow the Secretary of State’s appeal, dismiss the cross-appeals and set aside the order made on 30 July 2002 by the Special Immigration Appeals Commission (“SIAC”). The issues have been fully analysed in the judgments delivered by the other members of the Court. I agree with their reasoning and with the conclusions which they have reached. In the light of those judgments, my own views can be stated more shortly.

1. The statutory framework which underlies this appeal

The individuals who are the respondents to this appeal are detained under paragraph 2 of Schedule 3 to the Immigration Act 1971. The power to detain them under that provision is conferred by section 23(1) of the Anti-terrorism, Crime and Security Act 2001 (“ATCSA”). It has been common ground that the extended power to detain conferred by section 23 of ATCSA involves (or may well involve) a derogation from Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Article 5 has effect as part of the law of the United Kingdom “subject to any designated derogation or reservation” – see section 1(2) of the Human Rights Act 1998 (“HRA”). The designated derogation relied upon is that proposed in the Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644) (“the Derogation Order”).

The derogation proposed in the Derogation Order, and given effect by the provisions of section 23 of ATCSA, is a “derogation matter” for the purposes of section 30 of ATCSA; and, as such, it can be questioned in legal proceedings only before SIAC. It was in the exercise of its powers under section 30(2)(b) and (3)(c) of ACTSA that SIAC made an order quashing the Derogation Order on the grounds that it was outside the powers of the Secretary of State. Absent the Derogation Order, it followed that section 23 of ATCSA (in so far as it did involve a derogation from Article 5(1) of the Convention) was incompatible with the Convention rights of those detained. Further, SIAC was satisfied that the effect of section 23 of ATCSA was discriminatory; and so incompatible with Article 14 read in conjunction with Article 5 of the Convention. SIAC made a declaration to that effect under section 4(2) of HRA. An appeal from SIAC to this Court may be brought on a question of law – see section 7 of the Special Immigration Appeals Commission Act 1997.

2. The Derogation Order

The right of the United Kingdom to derogate from its obligations under the Convention is to be found in Article 15(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.”

Article 15(3) required the United Kingdom, when availing itself of that right, to keep the Secretary General of the Council of Europe fully informed of the measures which it had taken and the reasons therefore. The schedule to the Derogation Order reflects that requirement. It takes the form of a notification to the Secretary General of the intention of Her Majesty’s Government to exercise the extended powers to detain contained in ATCSA.

The schedule to the Derogation Order, as might be expected, addressed the question whether there was a public emergency threatening the life of the nation, identified the measures which the United Kingdom was proposing to take, and asserted that those were measures strictly required by the exigencies of the situation to meet that emergency. The relevant passages are these:

“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.

As a result, a public emergency, within the meaning of Article 15(1) of the Convention, exists in the United Kingdom.

As a result of the public emergency, provision is made in the Anti-terrorism, Crime and Security [Act 2001], 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. . . .

The extended power of arrest and detention in the Anti-terrorism, Crime and Security [Act 2001] is a measure which is strictly required by the exigencies of the situation. . . . If, at any time, in the Government’s assessment, the public emergency no longer exists or the extended power is no longer strictly required by the exigencies of the situation, then the Secretary of State will, by Order, repeal the decision.”

3. The existence of a public emergency threatening the life of the nation

SIAC was satisfied, on the “open” material before it, that there did exist a public emergency threatening the life of the nation within the terms of Article 15 of the Convention. It expressed its conclusions in the passage (at paragraph 35 of its decision) which Lord Woolf, Chief Justice, has already set out (at paragraph 33 of his judgment). It found nothing in the “closed” material which required it to take a different view; indeed, the closed material confirmed its view that the emergency was established (see paragraph 36 of the decision). The individual respondents challenge that finding. They do so on two grounds: first, that SIAC applied “an insufficiently intensive standard of review”; and, second, that SIAC erred “in distinguishing, in the present context, between an imminent emergency and an imminent threat of terrorist attack, and thereby permitted a remote and inchoate threat to stand as the basis for a derogation.”

The criticism that SIAC applied an insufficiently intensive standard of review is founded on two sentences in paragraph 21 of its decision:

“We are satisfied that our proper function in the context of this case is to decide whether the [Secretary of State’s] decision that there was such an emergency as justified derogation was one which was reasonable on all the material or to put it another way, was one which he was entitled to reach. We do not accept that we should make the decision for ourselves.”

I agree that, taken out of context, those sentences suggest that SIAC had misunderstood its role. But I also agree with Lord Woolf, Chief Justice, and with Lord Justice Brooke that a careful reading of the whole of paragraph 21 of the decision, in the context of what had gone before – and, in particular, the analysis (at paragraphs 13 to 16) of the Strasbourg judgment in Brannigan and McBride v United Kingdom (1993) 17 EHRR 539, and the speeches in the House of Lords in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 and Home Secretary v Rehman [2001] 3 WLR 877 – lays that suspicion to rest. The first ground of challenge under this head is not made out.

The criticism that SIAC misdirected itself in making a distinction between an imminent emergency and an imminent threat of terrorist attack is founded on a passage in paragraph 24 of the decision:

“Much has been made of the requirement that the emergency should be actual or imminent. We have had our attention drawn to many observations by ministers in the weeks following 11 September 2001 that there was no imminent terrorist threat to the United Kingdom or that there was no evidence available of any specific attack target in Britain. But it is not the imminence of a threat that is required: it is the actuality or imminence of an emergency. The distinction is by no means an unreal one. The measures which involve the need to derogate (here, the detention of suspected terrorists) are required to try to prevent the outrages which would have a disastrous effect if they occurred. Thus it would be absurd to require the authorities to wait until they were aware of an imminent attack before taking the necessary steps to avoid such an attack . . . An emergency can exist and can certainly be imminent if there is an intention and a capacity to carry out serious terrorist violence even if nothing has yet been done and plans have not reached the stage when an attack is actually about to happen.”

As Lord Justice Brooke has pointed out (at paragraphs 75 and 76 of his judgment) the requirement that the emergency should be actual or imminent is identified in the report of the European Commission on Human Rights in the Greek case (1969) 12 Yearbook para 153; and can be derived from the French text of Article 15. But, as SIAC observed, it is the emergency which must be actual or imminent; and there is a real distinction between the actuality of the emergency and the imminence of any threatened attack. In my view SIAC were correct to approach the question which they had to decide on the basis that an emergency can exist notwithstanding that matters have not reached the stage at which there is a threat of imminent attack. I, too, would reject the second ground of challenge under this head.

4. Measures strictly required by the exigencies of the situation

The measures which the United Kingdom was proposing to take in response to the public emergency which the Government had identified are spelt out in the schedule to the Derogation Order: “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.” If there were a need to detain a foreign national whom it was intended to deport in circumstances where deportation were not for the time being possible, the need for “an extended power to ... detain” is not in doubt. The power to detain under paragraph 2 of schedule 3 to the Immigration Act 1971 could not be exercised in circumstances where it had become clear that removal or deportation was not going to be possible within a reasonable time – see R v Governor of Durham Prison, ex parte Singh [1984] 1 WLR 704. Section 23(1) of ATCSA takes the form that it does because the Government had identified a need to detain certain foreign nationals whom it intends to deport from the United Kingdom – but whom it is not possible to deport for the time being – and had recognised that existing legislation did not enable that need to be met.

The foreign nationals in relation to whom the extended power is exercisable can be identified by three characteristics. First, they must be the subject of a certificate issued by the Secretary of State under section 21(1) of ATCSA; that is to say, they must be persons whose presence in the United Kingdom the Secretary of State reasonably believes to be a risk to national security and whom the Secretary of State reasonably suspects to be terrorists. Second, they must be persons in respect of whom the Secretary of State has made or would be entitled to make a deportation order under section 5(1) of the 1971 Act, following a recommendation for deportation made by a court. Third, they must be persons whose removal or deportation is prevented (whether temporarily or indefinitely) by a point of law which wholly or partly relates to an international agreement, or by a practical consideration. The paradigm example of a person whose removal is prevented by an international agreement is one whose removal to the country of which he is a national would expose him to the risk of torture, or of inhuman or degrading treatment. To remove him in those circumstances would be to act in contravention of his Convention right under Article 3 –see Chahal v United Kingdom [1996] 23 EHRR 413.

The relevant question, therefore, is whether the detention of persons in respect of whom the conditions described in the preceding paragraph are satisfied is a measure “strictly required by the exigencies of the situation”. SIAC held that it was. As Lord Justice Brooke has pointed out (at paragraph 91 of his judgment) that was a finding of fact, in relation to which (absent some misdirection in law) there can be no appeal.

The finding is challenged on two main grounds: that the measure is both “over-inclusive” and “under-inclusive”. Over-inclusive in the sense that the power to certify, under section 21(1), goes beyond the need posed by the existing emergency. Under-inclusive in that the measure does not permit the detention of those who are not subject to immigration control; that is to say, it does not permit the detention of suspected international terrorists who are not capable of being deported because, as British citizens, they cannot fall within sections 3(5) or (6) of the 1971 Act. And under-inclusive in that the measure does not permit the detention of those who are subject to deportation but in respect of whom there is no point of law or practical consideration which prevents their removal.

I agree that, on the language of section 21(1) of ATCSA, the power to certify does go beyond what can be regarded as strictly required by the exigencies of the situation. But, as Lord Woolf, Chief Justice, has pointed out (at paragraph 42 of his judgment), that is a point of no substance. It is plain that the power to certify can only be exercised in relation to the emergency which gave rise to the Derogation Order. That the Secretary of State recognises that limitation was confirmed by the Attorney-General in the course of the hearing.

The question whether it was necessary (or strictly required), in order to meet the exigencies of the situation, to detain those who were subject to deportation and who could be deported (because there was nothing to prevent deportation) seems to me to be a question of fact which is not capable of challenge on an appeal to this Court. If, as SIAC held (at paragraph 51 of its decision), detention of persons who could be deported (as an alternative to deporting them) was not strictly required, then the decision not to take power to detain them cannot be criticised. Indeed, Article 15(1) would not permit derogation from Article 5 with a view to detaining persons whose detention was not strictly required.

Subject to the argument based on discrimination, I take the same view in relation to the question whether it was necessary to detain those who, as British citizens, were not subject to deportation. If the detention of British citizens, suspected of being international terrorists, was not strictly required in order to meet the exigencies of the situation, then Article 15(1) would not permit derogation from Article 5 with a view to detaining them; and the decision not to attempt to take power to do so cannot be criticised as irrational. If, on the other hand, the detention of British citizens was strictly required, then the decision not to include them within the scope of the power was both irrational and discriminatory.

5. Discrimination

It follows, in my view, that the question whether the Derogation Order can be quashed on the grounds of discrimination turns on whether the decision of the Secretary of State - that the measures required to meet the emergency which he had identified could, and so should, be confined to the detention of those who were subject to deportation but who could not, for the time being, be removed - can be sustained or must be overturned. As Lord Woolf, Chief Justice, has pointed out, there is no suggestion that the Secretary of State did not reach that conclusion, bona fide and after consideration of the material before him. The reasons which led him to that conclusion are set out in the evidence of Mr Whalley, to which Lord Justice Brooke has referred at paragraph 100 of his judgment. Like them, I do not understand SIAC to have taken the view that the Secretary of State’s decision on that point must be overturned. And, as Lord Woolf has observed (at paragraph 40 of his judgment), it is impossible for this Court, on the material before it, to reach a different decision.

If the Secretary of State’s decision as to what the exigencies of the situation strictly required stands (as I think it must), then the argument based on discrimination falls away. The decision to confine the measures to be taken to the detention of those who are subject to deportation, but who cannot (for the time being) be removed is not a decision to discriminate against that class on the grounds of nationality. It is a decision that it is only persons who fall within that class who need to be detained in order to meet the emergency. What would be discriminatory would be to decide that all suspected international terrorists needed to be detained in order to meet the emergency; but to confine the power to detain to those who, because they were foreign nationals, were subject to immigration control. If that were what the Secretary of State had done, then it would be right to quash the Derogation Order. But, on the facts found by SIAC, it was wrong to do so.