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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A, X and Y, & Ors v Secretary of State for the Home Department  EWCA Civ 1502 (25 October 2002)
Cite as:  EWCA Civ 1502,  1 All ER 816,  2 WLR 564,  QB 335
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SPECIAL IMMIGRATION APPEALS COMMISSION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BROOKE
LORD JUSTICE CHADWICK
| A, X and Y, and OTHERS||Claimants/|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant/|
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
Crown Copyright ©
(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.
|Lord Woolf CJ||Para|
|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|
|8||The Respondent’s Submissions||38|
|9||Conclusions on the Respondents’ contentions|
|Third to Fifth Submission||44|
|Submissions Six to Eight: Discrimination||45|
|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|
|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|
|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|
The Lord Chief Justice:
“(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.”
“. . . 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.
“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 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
“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.
3. The Derogation Order
4. The 2001 Act
“21. Suspected international terrorist: certification
(1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably-
(a) believes that the person’s presence in the United Kingdom is a risk to national security, and
(b) suspects that the person is a terrorist.”
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.”
“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.”
“(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).”
5. The Secretary of State’s case
6. Article 15 and is there a state of emergency?
“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”.
“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.”
“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  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.
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
“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  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  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
Third to Fifth Submissions
Submissions Six to Eight: Discrimination
“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?”
10. Article 6
11. Article 3
12. Did SIAC misunderstand its role?
13. The opinion of the Commissioner for Human Rights
14. The Joint Committee of Parliament on Human Rights
Lord Justice Brooke :
1. Introductory: the four main issues
(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
“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.”
3. ECHR Article 15 and judicial supervision: the ECHR case law
“… 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.”
(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.
“(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.”
(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.
(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.
4. Judicial supervision in human rights cases, and issues of deference
(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
(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.
“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).”
6. Reliance on intelligence material
7. My conclusion on the first and fourth main issues
8. Did Parliament go further than was strictly required?
“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.”
“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.”
9. My conclusion on the second main issue
10. Differential treatment of non-nationals: the facts of the present case.
(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.
(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.
“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.”
“…[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).”
11. Differential treatment of non-nationals: relevant principles of international law
“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.”
“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.”
“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.”
“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.
“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, ...”
“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.
“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.
12. My conclusion on the third main issue
Lord Justice Chadwick:
1. The statutory framework which underlies this appeal
2. The Derogation Order
“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”
“There 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
“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.”
“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.”
4. Measures strictly required by the exigencies of the situation