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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> A & Ors v. Secretary of State for the Home Department [2004] UKHL 56 (16 December 2004) URL: http://www.bailii.org/uk/cases/UKHL/2004/56.html Cite as: [2004] UKHL 56, [2005] 2 AC 68, [2005] 2 WLR 87 |
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| Judgments - A (FC) and others (FC) (Appellants) v.
Secretary of State for the Home Department (Respondent)
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HOUSE OF LORDS |
SESSION 2004-05 |
OPINIONS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
X (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
ON
THURSDAY 16 DECEMBER 2004
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Carswell
LORD BINGHAM OF CORNHILL
My Lords,
The background
"1 Terrorism: interpretation
(1) In this Act 'terrorism' means the use or threat of action where -
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it -
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section -
(a) 'action' includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) 'the government' means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."
"(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of .. a person against whom action is being taken with a view to deportation .."
Thus there is, again, no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wishes to remove. Such a person may be detained only during the process of deportation. Otherwise, the Convention is breached and the Convention rights of the detainee are violated.
"79. Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation.
80. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees."
The Court went on to consider whether Mr Chahal's detention, which had lasted for a number of years, had exceeded the period permissible under article 5(1)(f). On this question the Court, differing from the unanimous decision of the Commission, held that it had not. But it reasserted (para 113) that "any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress". In a case like Mr Chahal's, where deportation proceedings are precluded by article 3, article 5(1)(f) would not sanction detention because the non-national would not be "a person against whom action is being taken with a view to deportation". A person who commits a serious crime under the criminal law of this country may of course, whether a national or a non-national, be charged, tried and, if convicted, imprisoned. But a non-national who faces the prospect of torture or inhuman treatment if returned to his own country, and who cannot be deported to any third country and is not charged with any crime, may not under article 5(1)(f) of the Convention and Schedule 3 to the Immigration Act 1971 be detained here even if judged to be a threat to national security.
"Derogation in time of emergency
1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."
A member state availing itself of the right of derogation must inform the Secretary General of the Council of Europe of the measures it has taken and the reasons for them. It must also tell the Secretary General when the measures have ceased to operate and the provisions of the Convention are again being fully executed. Article 15 of the Convention is not one of the articles expressly incorporated by the 1998 Act, but section 14 of that Act makes provision for prospective derogations by the United Kingdom to be designated for the purposes of the Act in an order made by the Secretary of State. It was in exercise of his power under that section that the Home Secretary, on 11 November 2001, made the Derogation Order, which came into force two days later, although relating to what was at that stage a proposed derogation.
The Derogation Order
"There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom."
The next section summarised the effect of what was to become the 2001 Act. A brief account was then given of the power to detain under the Immigration Act 1971 and reference was made to the decision in Hardial Singh. In a section entitled "Article 5(1)(f) of the Convention" the effect of the Court's decision in Chahal was summarised. In the next section it was recognised that the extended power in the new legislation to detain a person against whom no action was being taken with a view to deportation might be inconsistent with article 5(1)(f). Hence the need for derogation. Formal notice of derogation was given to the Secretary General on 18 December 2001. Corresponding steps were taken to derogate from article 9 of the International Covenant on Civil and Political Rights 1966, which is similar in effect to article 5, although not (like article 5) incorporated into domestic law.
The 2001 Act
"21 Suspected international terrorist: certification
(1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably -
(a) believes that the person's presence in the United Kingdom is a risk to national security, and
(b) suspects that the person is a terrorist.
(2) In subsection (1)(b) 'terrorist' means a person who -
(a) is or has been concerned in the commission, preparation or instigation of acts of international terrorism,
(b) is a member of or belongs to an international terrorist group, or
(c) has links with an international terrorist group.
(3) A group is an international terrorist group for the purposes of subjection (2)(b) and (c) if -
(a) it is subject to the control or influence of persons outside the United Kingdom, and
(b) the Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism.
(4) For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it.
(5) In this Part -
'terrorism' has the meaning given by section 1 of the Terrorism Act 2000 [see para 5 above], and
'suspected international terrorist' means a person certified under subsection (1).
"22 Deportation, removal &c
(1) An action of a kind specified in subsection (2) may be taken in respect of a suspected international terrorist despite the fact that (whether temporarily or indefinitely) the action cannot result in his removal from the United Kingdom because of -
(a) a point of law which wholly or partly relates to an international agreement, or
(b) a practical consideration."
The actions specified in subsection (2) include the making of a deportation order. It is clear that subsection (1)(a) is directed to articles 3 and 5(1)(f) of the Convention and the decision in Chahal. Subsection (1)(b) is directed primarily to the case where a non-national cannot for Convention reasons be returned to his home country and there is no other country to which he may be removed.
"23 Detention
(1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by -
(a) a point of law which wholly or partly relates to an international agreement, or
(b) a practical consideration."
For present purposes the relevant provision specified in subsection (2) is para 2 of Schedule 3 to the Immigration Act 1971, the effect of which I have outlined in para 8 above.
"(1)(a) a derogation by the United Kingdom from Article 5(1) of the Convention on Human Rights which relates to the detention of a person where there is an intention to remove or deport him from the United Kingdom, or
(b) the designation under section 14(1) of the Human Rights Act 1998 (c 42) of a derogation within paragraph (a) above."
The appellants' challenge in these proceedings was brought under this section. Section 122, in Part 14 of the Act, provided for appointment by the Secretary of State of a committee of not fewer than seven Privy Counsellors to review the whole of the Act within two years. Part 4 of the Act came into force on 14 December 2001, the date on which the Act received the royal assent.
Public emergency
"28. In the general context of Article 15 of the Convention, the natural and customary meaning of the words 'other public emergency threatening the life of the nation' is sufficiently clear; they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed. Having thus established the natural and customary meaning of this conception, the Court must determine whether the facts and circumstances which led the Irish Government to make their Proclamation of 5 July 1957 come within this conception. The Court, after an examination, finds this to be the case; the existence at the time of a 'public emergency threatening the life of the nation' was reasonably deduced by the Irish Government from a combination of several factors, namely: in the first place, the existence in the territory of the Republic of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its purposes; secondly, the fact that this army was also operating outside the territory of the State, thus seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly, the steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of 1957.
29. Despite the gravity of the situation, the Government had succeeded, by using means available under ordinary legislation, in keeping public institutions functioning more or less normally, but the homicidal ambush on the night of 3 to 4 July 1957 in the territory of Northern Ireland near the border had brought to light, just before 12 July - a date, which, for historical reasons, is particularly critical for the preservation of public peace and order - the imminent danger to the nation caused by the continuance of unlawful activities in Northern Ireland by the IRA and various associated groups, operating from the territory of the Republic of Ireland."
"153. Such a public emergency may then be seen to have, in particular, the following characteristics:
(1) It must be actual or imminent.
(2) Its effects must involve the whole nation.
(3) The continuance of the organised life of the community must be threatened.
(4) The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate."
In Ireland v United Kingdom (1978) 2 EHRR 25 the parties were agreed, as were the Commission and the Court, that the article 15 test was satisfied. This was unsurprising, since the IRA had for a number of years represented (para 212) "a particularly far-reaching and acute danger for the territorial integrity of the United Kingdom, the institutions of the six counties and the lives of the province's inhabitants". The article 15 test was accordingly not discussed, but the Court made valuable observations about its role where the application of the article is challenged:
"(a) The role of the Court
207. The limits on the Court's powers of review are particularly apparent where Article 15 is concerned.
It falls in the first place to each Contracting State, with its responsibility for 'the life of [its] nation', to determine whether that life is threatened by a 'public emergency' and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter, Article 15(1) leaves those authorities a wide margin of appreciation.
Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the Commission, is responsible for ensuring the observance of the States' engagements (Art. 19), is empowered to rule on whether the States have gone beyond the 'extent strictly required by the exigencies' of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision."
The Court repeated this account of its role in Brannigan and McBride v United Kingdom (1993) 17 EHRR 539, adding (para 43) that
"in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation."
The Court again accepted that there had been a qualifying emergency when the applicants, following a derogation in December 1988, were detained for periods of six days and four days respectively in January 1989. In Aksoy v Turkey (1996) 23 EHRR 553 the Court had little difficulty in accepting, and the applicant did not contest, that a qualifying public emergency existed. This was, again, an unsurprising conclusion in the context of Kurdish separatist terrorism which had claimed almost 8000 lives. The applicant in Marshall v United Kingdom (10 July 2001, Appn No 41571/98) relied on the improved security situation in Northern Ireland to challenge the continuing validity of the United Kingdom's 1988 derogation. Referring to its previous case law, the Court rejected the application as inadmissible, while acknowledging (pp 11-12) that it must
"address with special vigilance the fact that almost nine years separate the prolonged administrative detention of the applicants Brannigan and McBride from that of the applicant in the case before it."
"39. A state party may take measures derogating from its obligations under the International Covenant on Civil and Political Rights pursuant to Article 4 (hereinafter called 'derogation measures') only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation. A threat to the life of the nation is one that:
(a) affects the whole of the population and either the whole or part of the territory of the State, and
(b) threatens the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognised in the Covenant.
40. Internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation cannot justify derogations under Article 4."
"54. The principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger."
In submitting that the test of imminence was not met, the appellants pointed to ministerial statements in October 2001 and March 2002: "There is no immediate intelligence pointing to a specific threat to the United Kingdom, but we remain alert, domestically as well as internationally;" and "[I]t would be wrong to say that we have evidence of a particular threat."
"Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature."
This view was also taken by the parliamentary Joint Committee on Human Rights, which in its Eighteenth Report of the Session 2003-2004 (HL paper 158, HC 713, 21 July 2004), in para 4, observed:
"Derogations from human rights obligations are permitted in order to deal with emergencies. They are intended to be temporary. According to the Government and the Security Service, the UK now faces a near-permanent emergency."
It is indeed true that official spokesmen have declined to suggest when, if ever, the present situation might change.
"In their fight against terrorism, Council of Europe members should not provide for any derogations to the European Convention on Human Rights."
It also called on all member states (para 12) to:
"refrain from using Article 15 of the European Convention on Human Rights (derogation in time of emergency) to limit the rights and liberties guaranteed under its Article 5 (right to liberty and security)."
In its General Comment No 29 on article 4 of the ICCPR, the UN Human Rights Committee on 24 July 2001 observed (in para 3):
"On a number of occasions the Committee has expressed its concern over States parties that appear to have derogated from rights protected by the Covenant, or whose domestic law appears to allow such derogation, in situations not covered by article 4."
In Opinion 1/2002 of the Council of Europe Commissioner for Human Rights (Comm DH (2002) 7, 28 August 2002), Mr Alvaro Gil-Robles observed, in para 33:
"Whilst acknowledging the obligation of governments to protect their citizens against the threat of terrorism, the Commissioner is of the opinion that general appeals to an increased risk of terrorist activity post September 11th 2001 cannot, on their own, be sufficient to justify derogating from the Convention. Several European states long faced with recurring terrorist activity have not considered it necessary to derogate from Convention rights. Nor have any found it necessary to do so under the present circumstances. Detailed information pointing to a real and imminent danger to public safety in the United Kingdom will, therefore, have to be shown."
The Committee of Privy Counsellors established pursuant to section 122 of the 2001 Act under the chairmanship of Lord Newton of Braintree, which reported on 18 December 2003 (Anti-terrorism, Crime and Security Act 2001 Review: Report, HC 100) attached significance to this point:
"189. The UK is the only country to have found it necessary to derogate from the European Convention on Human Rights. We found this puzzling, as it seems clear that other countries face considerable threats from terrorists within their borders."
It noted that France, Italy and Germany had all been threatened, as well as the UK.
"Having considered the Home Secretary's evidence carefully, we recognise that there may be evidence of the existence of a public emergency threatening the life of the nation, although none was shown by him to this Committee."
It repeated these doubts in para 4 of its Fifth Report of the Session 2001-2002 (3 December 2001). In para 20 of its Fifth Report of the Session 2002-2003 (HL paper 59, HC 462, 24 February 2003), following the decisions of SIAC and the Court of Appeal, the Joint Committee noted that SIAC had had sight of closed as well as open material but suggested that each House might wish to seek further information from the Government on the public emergency issue. In its report of 23 February 2004 (Sixth Report of the Session 2003-2004, HL Paper 38, HC 381), the Joint Committee stated, in para 34:
"Insufficient evidence has been presented to Parliament to make it possible for us to accept that derogation under ECHR Article 15 is strictly required by the exigencies of the situation to deal with a public emergency threatening the life of the nation."
It adhered to this opinion in paras 15-19 of its Eighteenth Report of the Session 2003-2004 (HL Paper 158, HC 713), drawing attention (para 82) to the fact that the UK was the only country out of 45 countries in the Council of Europe which had found it necessary to derogate from article 5. The appellants relied on these doubts when contrasting the British derogation with the conduct of other Council of Europe member states which had not derogated, including even Spain which had actually experienced catastrophic violence inflicted by Al-Qaeda.
Proportionality
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
This approach is close to that laid down by the Supreme Court of Canada in R v Oakes [1986] 1 SCR 103, paras 69-70, and in Libman v Attorney General of Quebec (1997) 3 BHRC 269, para 38. To some extent these questions are, or may be, interrelated. But the appellants directed the main thrust of their argument to the second and third questions. They submitted that even if it were accepted that the legislative objective of protecting the British people against the risk of catastrophic Al-Qaeda terrorism was sufficiently important to justify limiting the fundamental right to personal freedom of those facing no criminal accusation, the 2001 Act was not designed to meet that objective and was not rationally connected to it. Furthermore, the legislative objective could have been achieved by means which did not, or did not so severely, restrict the fundamental right to personal freedom.
(1) Part 4 of the 2001 Act reversed the effect of the decisions in Hardial Singh [1984] 1 WLR 704 and Chahal (1996) 23 EHRR 413 and was apt to address the problems of immigration control caused to the United Kingdom by article 5(1)(f) of the Convention read in the light of those decisions.
(2) The public emergency on which the United Kingdom relied to derogate from the Convention right to personal liberty was the threat to the security of the United Kingdom presented by Al-Qaeda terrorists and their supporters.
(3) While the threat to the security of the United Kingdom derived predominantly and most immediately from foreign nationals, some of whom could not be deported because they would face torture or inhuman or degrading treatment or punishment in their home countries and who could not be deported to any third country willing to receive them, the threat to the United Kingdom did not derive solely from such foreign nationals.
(4) Sections 21 and 23 did not rationally address the threat to the security of the United Kingdom presented by Al-Qaeda terrorists and their supporters because (a) it did not address the threat presented by UK nationals, (b) it permitted foreign nationals suspected of being Al-Qaeda terrorists or their supporters to pursue their activities abroad if there was any country to which they were able to go, and (c) the sections permitted the certification and detention of persons who were not suspected of presenting any threat to the security of the United Kingdom as Al-Qaeda terrorists or supporters.
(5) If the threat presented to the security of the United Kingdom by UK nationals suspected of being Al-Qaeda terrorists or their supporters could be addressed without infringing their right to personal liberty, it is not shown why similar measures could not adequately address the threat presented by foreign nationals.
(6) Since the right to personal liberty is among the most fundamental of the rights protected by the European Convention, any restriction of it must be closely scrutinised by the national court and such scrutiny involves no violation of democratic or constitutional principle.
(7) In the light of such scrutiny, neither the Derogation Order nor sections 21 and 23 of the 2001 Act can be justified.
"But the evidence before us demonstrates beyond argument that the threat is not so confined. [i.e. is not confined to the alien section of the population]. There are many British nationals already identified - mostly in detention abroad - who fall within the definition of 'suspected international terrorists,' and it was clear from the submissions made to us that in the opinion of the [Home Secretary] there are others at liberty in the United Kingdom who could be similarly defined."
This finding has not been challenged, and since SIAC is the responsible fact-finding tribunal it is unnecessary to examine the basis of it. There was however evidence before SIAC that "upwards of a thousand individuals from the UK are estimated on the basis of intelligence to have attended training camps in Afghanistan in the last five years," that some British citizens are said to have planned to return from Afghanistan to the United Kingdom and that "The backgrounds of those detained show the high level of involvement of British citizens and those otherwise connected with the United Kingdom in the terrorist networks." It seems plain that the threat to the United Kingdom did not derive solely from foreign nationals or from foreign nationals whom it was unlawful to deport. Later evidence, not before SIAC or the Court of Appeal, supports that conclusion. The Newton Committee recorded the Home Office argument that the threat from Al-Qaeda terrorism was predominantly from foreigners but drew attention (para 193) to
"accumulating evidence that this is not now the case. The British suicide bombers who attacked Tel Aviv in May 2003, Richard Reid ('the Shoe Bomber'), and recent arrests suggest that the threat from UK citizens is real. Almost 30% of Terrorism Act 2000 suspects in the past year have been British. We have been told that, of the people of interest to the authorities because of their suspected involvement in international terrorism, nearly half are British nationals."
"36. The proportionality of the derogating measures is further brought into question by the definition of international terrorist organisations provided by section 21(3) of the Act. The section would appear to permit the indefinite detention of an individual suspected of having links with an international terrorist organisation irrespective of its presenting a direct threat to public security in the United Kingdom and perhaps, therefore, of no relation to the emergency originally requiring the legislation under which his Convention rights may be prejudiced.
37. Another anomaly arises in so far as an individual detained on suspicion of links with international terrorist organisations must be released and deported to a safe receiving country should one become available. If the suspicion is well founded, and the terrorist organisation a genuine threat to UK security, such individuals will remain, subject to possible controls by the receiving state, at liberty to plan and pursue, albeit at some distance from the United Kingdom, activity potentially prejudicial to its public security.
38. It would appear, therefore, that the derogating measures of the Anti-Terrorism, Crime and Security Act allow both for the detention of those presenting no direct threat to the United Kingdom and for the release of those of whom it is alleged that they do. Such a paradoxical conclusion is hard to reconcile with the strict exigencies of the situation."
The Newton Committee, while expressing no opinion on the legality of Part 4 of the 2001 Act, echoed the Commissioner's criticisms:
"185. The Part 4 detention powers present a number of problems that range from fundamental issues of principle to practical procedural difficulties. We are not persuaded that the powers are sufficient to meet the full extent of the threat from international terrorism. Nor are we persuaded that the risks of injustice are necessary or defensible.
186. Some of these problems arise because Part 4 is an adaptation of existing immigration and asylum legislation, rather than being designed expressly for the purpose of meeting the threat from international terrorism.
..
"192. The Part 4 process only tackles the threat from foreigners suspected of having links with al Qaeda or its associated networks. It does not, therefore, address the threat:
a. from British nationals with similar links; or fromb. anyone in the UK with links to other foreign terrorist causes...
"195. Seeking to deport terrorist suspects does not seem to us to be a satisfactory response, given the risk of exporting terrorism. If people in the UK are contributing to the terrorist effort here or abroad, they should be dealt with here. While deporting such people might free up British police, intelligence, security and prison service resources, it would not necessarily reduce the threat to British interests abroad, or make the world a safer place more generally. Indeed, there is a risk that the suspects might even return without the authorities being aware of it.
..
"203. We consider the shortcomings described above to be sufficiently serious to strongly recommend that the Part 4 powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency. New legislation should:
a. deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators; andb. not require a derogation from the European Convention on Human Rights."
"no person shall be detained for an indefinite period of time, whether detained pending judicial investigation or trial or detained without charge; .."
"At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight."
Where the conduct of government is threatened by serious terrorism, difficult choices have to be made and the terrorist dimension cannot be overlooked. This also the European Commission and Court have recognised in cases such as Brogan v United Kingdom (1988) 11 EHRR 117, para 80; Fox, Campbell & Hartley v United Kingdom (1990) 13 EHRR 157, paras 32, 34; and Murray v United Kingdom (1994) 19 EHRR 193, para 47. The same recognition is found in domestic authority: see, for example, Secretary of State for the Home Department v Rehman [2003] 1 AC 153, paras 28, 62.
" .. the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of Contracting States."
A similar approach is found in domestic authority. In R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 381, Lord Hope of Craighead said:
"It will be easier for such [a discretionary] area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection."
Another area in which the court was held to be qualified to make its own judgment is the requirement of a fair trial: R v A (No 2) [2002] 1 AC 45, para 36. The Supreme Court of Canada took a similar view in Libman v Attorney General of Quebec (1997) 3 BHRC 269, para 59. In his dissenting judgment (cited with approval in Libman) in RJR- MacDonald Inc v Attorney General of Canada [1995] 3 SCR 199, para 68, La Forest J, sitting in the same court, said:
"Courts are specialists in the protection of liberty and the interpretation of legislation and are, accordingly, well placed to subject criminal justice legislation to careful scrutiny. However, courts are not specialists in the realm of policy-making, nor should they be."
See also McLachlin J in the same case, para 135. Jackson J, sitting in the Supreme Court of the United States in West Virginia State Board of Education v Barnette 319 US 624 (1943), para 3, stated, speaking of course with reference to an entrenched constitution:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts .. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed."
"The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention leaves to each Contracting State, in the first place, the task of securing the rights and freedoms it enshrines."
Thus the European Commissioner for Human Rights had authority for saying (Opinion 1/2002, para 9):
"It is furthermore, precisely because the Convention presupposes domestic controls in the form of a preventive parliamentary scrutiny and posterior judicial review that national authorities enjoy a large margin of appreciation in respect of derogations. This is, indeed, the essence of the principle of the subsidiarity of the protection of Convention rights."
In Smith and Grady v United Kingdom (1999) 29 EHRR 493 the traditional Wednesbury approach to judicial review was held to afford inadequate protection. It is now recognised that "domestic courts must themselves form a judgment whether a Convention right has been breached" and that "the intensity of review is somewhat greater under the proportionality approach": R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, paras 23, 27.
"The Court would stress the importance of Article 5 in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Article 5(3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law."
In Korematsu v United States 584 F Supp 1406 (1984) para 21, Judge Patel observed that the Supreme Court's earlier decision (323 US 214 (1944))
"stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability."
Simon Brown LJ in International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728 observed, in para 27, that
" .. the court's role under the 1998 Act is as the guardian of human rights. It cannot abdicate this responsibility."
He went on to say, in para 54:
"But judges nowadays have no alternative but to apply the Human Rights Act 1998. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts."
"The courts are charged by Parliament with delineating the boundaries of a rights-based democracy" ("Judicial Deference: servility, civility or institutional capacity?" [2003] PL 592, 597)".
See also Clayton, "Judicial deference and 'democratic dialogue': the legitimacy of judicial intervention under the Human Rights Act 1998" [2004] PL 33.
"32. It can be argued that as suspected international terrorists their departure for another country could amount to exporting terrorism: a point made in the Newton Report at paragraph 195. But that is a natural consequence of the fact that Part 4 powers are immigration powers: detention is permissible only pending deportation and there is no other power available to detain (other than for the purpose of police enquiries) if a foreign national chooses voluntarily to leave the UK. (Detention in those circumstances is limited to 14 days after which the person must be either charged or released.) Deportation has the advantage moreover of disrupting the activities of the suspected terrorist."
This answer, however, reflects the central complaint made by the appellants: that the choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem (by allowing non-UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if reasonably suspected of having links with Al-Qaeda, may harbour no hostile intentions towards the United Kingdom. The conclusion that the Order and section 23 are, in Convention terms, disproportionate is in my opinion irresistible.
(1) that there is an advantage to the UK in the removal of a potential terrorist from circulation in the UK because he cannot operate actively in the UK whilst he is either not in the country or not at liberty;
(2) that the removal of potential terrorists from their UK communities disrupts the organisation of terrorist activities;
(3) that the detainee's freedom to leave, far from showing that the measures are irrational, tends to show that they are to this extent properly tailored to the state of emergency; and
(4) that it is difficult to see how a power to detain a foreign national who had not been charged with a criminal offence and wished to leave the UK could readily be defended as tending to prevent him committing acts of terrorism aimed at the UK.
Assuming, as one must, that there is a public emergency threatening the life of the nation, measures which derogate from article 5 are permissible only to the extent strictly required by the exigencies of the situation, and it is for the derogating state to prove that that is so. The reasons given by SIAC do not warrant its conclusion. The first reason does not explain why the measures are directed only to foreign nationals. The second reason no doubt has some validity, but is subject to the same weakness. The third reason does not explain why a terrorist, if a serious threat to the UK, ceases to be so on the French side of the English Channel or elsewhere. The fourth reason is intelligible if the foreign national is not really thought to be a serious threat to the UK, but hard to understand if he is. I do not consider SIAC's conclusion as one to which it could properly come. In dismissing the appellants' appeal, Lord Woolf CJ broadly considered that it was sensible and appropriate for the Secretary of State to use immigration legislation, that deference was owed to his decisions (para 40) and that SIAC's conclusions depended on the evidence before it (para 43). Brooke LJ reached a similar conclusion (para 91), regarding SIAC's findings as unappealable findings of fact. Chadwick LJ also regarded SIAC's finding as one of fact (para 150). I cannot accept this analysis as correct. The European Court does not approach questions of proportionality as questions of pure fact: see, for example, Smith and Grady v United Kingdom, above. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review. So would excessive deference, in a field involving indefinite detention without charge or trial, to ministerial decision. In my opinion, SIAC erred in law and the Court of Appeal erred in failing to correct its error.
Discrimination
"Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
It is well established that the obligation on the state not to discriminate applies only to rights which it is bound to protect under the Convention. The appellants claim that section 23 discriminates against them in their enjoyment of liberty under article 5. Article 14 is of obvious importance. In his influential work "An International Bill of the Rights of Man" (1945), p 115, Professor Hersch Lauterpacht wrote:
"The claim to equality before the law is in a substantial sense the most fundamental of the rights of man."
Jackson J reflected this belief in his well-known judgment in Railway Express Agency Inc v New York 336 US 106, 112-113 (1949), when he said:
"I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation."
More recently, the Privy Council (per Lord Hoffmann, Matadeen v Pointu [1999] 1 AC 98, 109) observed, with reference to the principle of equality:
"Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour."
"Habeas corpus protection is often expressed as limited to 'British subjects'. Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic 'no' to the question. Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed 'the black' in Sommersett's Case (1772) 20 St. Tr. 1. There is nothing here to encourage in the case of aliens or non-patrials the implication of words excluding the judicial review our law normally accords to those whose liberty is infringed."
"However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention."
The Attorney General accepted that "or other status" would cover the appellants' immigration status, so nothing turns on this point. Nationality is a forbidden ground of discrimination within section 3(1) of the Race Relations Act 1976 and the Secretary of State is bound by that Act by virtue of section 19B(1). It was not argued that in the present circumstances he was authorised to discriminate by section 19D.
"In spite of the very general wording of the French version ('sans distinction aucune'), Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised. This version must be read in the light of the more restrictive text of the English version ('without discrimination'). In addition, and in particular, one would reach absurd results were one to give Article 14 an interpretation as wide as that which the French version seems to imply. One would, in effect, be led to judge as contrary to the Convention every one of the many legal or administrative provisions which do not secure to everyone complete equality of treatment in the enjoyment of the rights and freedoms recognised. The competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions; moreover, certain legal inequalities tend only to correct factual inequalities. The extensive interpretation mentioned above cannot consequently be accepted.
It is important, then, to look for the criteria which enable a determination to be made as to whether or not a given difference in treatment, concerning of course the exercise of one of the rights and freedoms set forth, contravenes Article 14. On this question, the Court, following the principles which may be extracted from the legal practice of a large number of democratic States, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised."
The question is whether persons in an analogous or relevantly similar situation enjoy preferential treatment, without reasonable or objective justification for the distinction, and whether and to what extent differences in otherwise similar situations justify a different treatment in law: Stubbings v United Kingdom (1996) 23 EHRR 213, para 70. The parties were agreed that in domestic law, seeking to give effect to the Convention, the correct approach is to pose the questions formulated by Grosz, Beatson and Duffy, Human Rights: The 1998 Act and the European Convention (2000), para C14-08, substantially adopted by Brooke LJ in Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617, para 20, and refined in the later cases of R (Carson) v Secretary of State for Work and Pensions [2002] EWHC 978 (Admin), [2002] 3 All ER 994, para 52, [2003] EWCA Civ 797, [2003] 3 All ER 577, paras 56-61, Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 3 WLR 113, paras 133-134 and R(S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196. As expressed in para 42 of this last case the questions are:
"(1) Do the facts fall within the ambit of one or more of the Convention rights? (2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (3) If so, was the difference in treatment on one or more of the proscribed grounds under article 14? (4) Were those others in an analogous situation? (5) Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?"
"All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment .."
Restrictions of human rights must be necessary and proportionate. The Commissioner for Human Rights in Opinion 1/2002 (28 August 2002, para 40) observed, with reference to the 2001 Act:
"In so far as these measures are applicable only to non-deportable foreigners, they might appear, moreover, to be ushering in a two-track justice, whereby different human rights standards apply to foreigners and nationals."
In its General Policy Recommendations published on 8 June 2004, the European Commission against Racism and Intolerance, a Council of Europe body, considered it the duty of the state to fight against terrorism; stressed that the response should not itself encroach on the values of freedom, democracy, justice, the rule of law, human rights and humanitarian law; stressed that the fight against terrorism should not become a pretext under which racial discrimination was allowed to flourish; noted that the fight against terrorism since 11 September 2001 had in some cases resulted in the adoption of discriminatory legislation, notably on grounds of nationality, national or ethnic origin and religion; stressed the responsibility of member states to ensure that the fight against terrorism did not have a negative impact on any minority group; and recommended them
"to review legislation and regulations adopted in connection with the fight against terrorism to ensure that these do not discriminate directly or indirectly against persons or group of persons, notably on grounds of 'race', colour, language, religion, nationality or national or ethnic origin, and to abrogate any such discriminatory legislation."
"1. Reports from States parties have often failed to take into account that each State party must ensure the rights in the Covenant to 'all individuals within its territory and subject to its jurisdiction' (art. 2, para. 1). In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.
2. Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens alike. Exceptionally, some of the rights recognized in the Covenant are expressly applicable only to citizens (art. 25), while article 13 applies only to aliens. However, the Committee's experience in examining reports shows that in a number of countries other rights that aliens should enjoy under the Covenant are denied to them or are subject to limitations that cannot always be justified under the Covenant."
The Committee went on to rule, in para 7, that "Aliens have the full right to liberty and security of the person" and that "Aliens are entitled to equal protection by the law".
"8. According to article 4, paragraph 1, one of the conditions for the justifiability of any derogation from the Covenant is that the measures taken do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Even though article 26 or the other Covenant provisions related to non-discrimination (articles 2, 3, 14, paragraph 1, 23, paragraph 4, 24, paragraph 1, and 25) have not been listed among the non-derogable provisions in article 4, paragraph 2, there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances. In particular, this provision of article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant."
"6. States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law."
The UN Commission on Human Rights published on 26 May 2003 a report which quoted General Comment No