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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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JISCBAILII_CASE_CONSTITUTIONAL

    Judgments - A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)

    HOUSE OF LORDS

    SESSION 2004-05
    [2004] UKHL 56
    on appeal from: [2002] EWCA Civ 1502


    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


    HOUSE OF LORDS

    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)

    [2004] UKHL 56

    LORD BINGHAM OF CORNHILL

    My Lords,

    1. The nine appellants before the House challenge a decision of the Court of Appeal (Lord Woolf CJ, Brooke and Chadwick LJJ) made on 25 October 2002 ([2002] EWCA Civ 1502, [2004] QB 335). The Court of Appeal allowed the Home Secretary's appeal against the decision of the Special Immigration Appeals Commission (Collins J, Kennedy LJ and Mr Ockelton) dated 30 July 2002 and dismissed the appellants' cross-appeals against that decision: [2002] HRLR 1274.

    2. Eight of the appellants were certified by the Home Secretary under section 21 of the Anti-terrorism, Crime and Security Act 2001 on 17 or 18 December 2001 and were detained under section 23 of that Act on 19 December 2001. The ninth was certified on 5 February 2002 and detained on 8 February 2002. Two of the eight December detainees exercised their right to leave the United Kingdom: one went to Morocco on 22 December 2001, the other (a French as well as an Algerian citizen) went to France on 13 March 2002. One of the December detainees was transferred to Broadmoor Hospital on grounds of mental illness in July 2002. Another was released on bail, on strict conditions, in April 2004. The Home Secretary revoked his certification of another in September 2004, and he has been released without conditions.

    3. The appellants share certain common characteristics which are central to their appeals. All are foreign (non-UK) nationals. None has been the subject of any criminal charge. In none of their cases is a criminal trial in prospect. All challenge the lawfulness of their detention. More specifically, they all contend that such detention was inconsistent with obligations binding on the United Kingdom under the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998; that the United Kingdom was not legally entitled to derogate from those obligations; that, if it was, its derogation was nonetheless inconsistent with the European Convention and so ineffectual to justify the detention; and that the statutory provisions under which they have been detained are incompatible with the Convention. The duty of the House, and the only duty of the House in its judicial capacity, is to decide whether the appellants' legal challenge is soundly based.

    4. In argument before the House, Liberty made written and oral submissions in support of the appellants, as it did in the courts below. Amnesty International made written submissions, also in support of the appellants. Special advocates were instructed by the Treasury Solicitor, but were not in the event called upon.

      The background

    5. In July 2000 Parliament enacted the Terrorism Act 2000. This was a substantial measure, with 131 sections and 16 Schedules, intended to overhaul, modernise and strengthen the law relating to the growing problem of terrorism. Relevantly for present purposes, that Act defined "terrorism" in section 1, which 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.
      (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."
    6. On 11 September 2001 terrorists launched concerted attacks in New York, Washington DC and Pennsylvania. The main facts surrounding those attacks are too well known to call for recapitulation here. It is enough to record that they were atrocities on an unprecedented scale, causing many deaths and destroying property of immense value. They were intended to disable the governmental and commercial power of the United States. The attacks were the product of detailed planning. They were committed by terrorists fired by ideological hatred of the United States and willing to sacrifice their own lives in order to injure the leading nation of the western world. The mounting of such attacks against such targets in such a country inevitably caused acute concerns about their own security in other western countries, particularly those which, like the United Kingdom, were particularly prominent in their support for the United States and its military response to Al-Qaeda, the organisation quickly identified as responsible for the attacks. Before and after 11 September Usama bin Laden, the moving spirit of Al-Qaeda, made threats specifically directed against the United Kingdom and its people.

    7. Her Majesty's Government reacted to the events of 11 September in two ways directly relevant to these appeals. First, it introduced (and Parliament, subject to amendment, very swiftly enacted) what became Part 4 of the Anti-terrorism, Crime and Security Act 2001. Secondly, it made the Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644) ("the Derogation Order"). Before summarising the effect of these measures it is important to understand their underlying legal rationale.

    8. First, it was provided by para 2(2) of Schedule 3 to the Immigration Act 1971 that the Secretary of State might detain a non-British national pending the making of a deportation order against him. Para 2(3) of the same schedule authorised the Secretary of State to detain a person against whom a deportation order had been made "pending his removal or departure from the United Kingdom". In R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 it was held, in a decision which has never been questioned (and which was followed by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97), that such detention was permissible only for such time as was reasonably necessary for the process of deportation to be carried out. Thus there was no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wished to remove. This ruling was wholly consistent with the obligations undertaken by the United Kingdom in the European Convention on Human Rights, the core articles of which were given domestic effect by the Human Rights Act 1998. Among these articles is article 5(1) which guarantees the fundamental human right of personal freedom: "Everyone has the right to liberty and security of person". This must be read in the context of article 1, by which contracting states undertake to secure the Convention rights and freedoms to "everyone within their jurisdiction". But the right of personal freedom, fundamental though it is, cannot be absolute and article 5(1) of the Convention goes on to prescribe certain exceptions. One exception is crucial to these appeals:

      "(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.

    9. Secondly, reference must be made to the important decision of the European Court of Human Rights in Chahal v United Kingdom (1996) 23 EHRR 413. Mr Chahal was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of the day decided that he should be deported from this country because his continued presence here was not conducive to the public good for reasons of a political nature, namely the international fight against terrorism. He resisted deportation on the ground (among others) that, if returned to India, he faced a real risk of death, or of torture in custody contrary to article 3 of the European Convention which provides that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment". Before the European Court the United Kingdom contended that the effect of article 3 should be qualified in a case where a state sought to deport a non-national on grounds of national security. This was an argument which the Court, affirming a unanimous decision of the Commission, rejected. It said, in paras 79-80 of its judgment:

      "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.

    10. The European Convention gives member states a limited right to derogate from some articles of the Convention (including article 5, although not article 3). The governing provision is article 15, which so far as relevant provides:

      "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

    11. The derogation related to article 5(1), in reality article 5(1)(f), of the Convention. The proposed notification by the United Kingdom was set out in a schedule to the Order. The first section of this, entitled "Public emergency in the United Kingdom", referred to the attacks of 11 September and to United Nations Security Council resolutions recognising those attacks as a threat to international peace and security and requiring all states to take measures to prevent the commission of terrorist attacks, "including by denying safe haven to those who finance, plan, support or commit terrorist attacks". It was stated in the Schedule:

      "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

    12. The 2001 Act is a long and comprehensive statute. Only Part 4 ("Immigration and Asylum") has featured in argument in these appeals, because only Part 4 contains the power to detain indefinitely on reasonable suspicion without charge or trial of which the appellants complain, and only Part 4 is the subject of the United Kingdom derogation. Section 21 provides for certification of a person by the Secretary of State:

      "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).
    13. Section 22(1) of the Act provides:

      "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.

    14. Section 23(1) is the provision most directly challenged in these appeals. It provides:

      "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.

    15. The Act makes provision in section 24 for the grant of bail by the Special Immigration Appeals Commission ("SIAC"), in section 25 for appeal to SIAC against certification by a certified suspected international terrorist, in section 26 for periodic reviews of certification by SIAC, in section 28 for periodic reviews of the operation of sections 21 to 23, in section 29 for the expiry (subject to periodic renewal) of sections 21 to 23 and for the final expiry of those sections, unless renewed, on 10 November 2006. By section 21(8), legal challenges to certification are reserved to SIAC. Section 30 gives SIAC exclusive jurisdiction in derogation matters, which are defined to mean:

      "(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

    16. The appellants repeated before the House a contention rejected by both SIAC and the Court of Appeal, that there neither was nor is a "public emergency threatening the life of the nation" within the meaning of article 15(1). Thus, they contended, the threshold test for reliance on article 15 has not been satisfied.

    17. The European Court considered the meaning of this provision in Lawless v Ireland (No 3) (1961) 1 EHRR 15, a case concerned with very low-level IRA terrorist activity in Ireland and Northern Ireland between 1954 and 1957. The Irish Government derogated from article 5 in July 1957 in order to permit detention without charge or trial and the applicant was detained between July and December 1957. He could have obtained his release by undertaking to observe the law and refrain from activities contrary to the Offences against the State (Amendment) Act 1940, but instead challenged the lawfulness of the Irish derogation. He failed. In para 22 of its judgment the Court held that it was for it to determine whether the conditions laid down in article 15 for the exercise of the exceptional right of derogation had been made out. In paras 28-29 it ruled:

      "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."
    18. In the Greek Case (1969) 12 YB 1 the Government of Greece failed to persuade the Commission that there had been a public emergency threatening the life of the nation such as would justify derogation. In para 153 of its opinion the Commission described the features of such an emergency:

      "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."
    19. Article 4(1) of the ICCPR is expressed in terms very similar to those of article 15(1), and has led to the promulgation of "The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights" (1985) 7 HRQ 3. In paras 39-40, under the heading "Public Emergency which Threatens the Life of the Nation", it is said:

      "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."
    20. The appellants did not seek to play down the catastrophic nature of what had taken place on 11 September 2001 nor the threat posed to western democracies by international terrorism. But they argued that there had been no public emergency threatening the life of the British nation, for three main reasons: if the emergency was not (as in all the decided cases) actual, it must be shown to be imminent, which could not be shown here; the emergency must be of a temporary nature, which again could not be shown here; and the practice of other states, none of which had derogated from the European Convention, strongly suggested that there was no public emergency calling for derogation. All these points call for some explanation.

    21. The requirement of imminence is not expressed in article 15 of the European Convention or article 4 of the ICCPR but it has, as already noted, been treated by the European Court as a necessary condition of a valid derogation. It is a view shared by the distinguished academic authors of the Siracusa Principles, who in 1985 formulated the rule (applying to the ICCPR):

      "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."

    22. The requirement of temporariness is again not expressed in article 15 or article 4 unless it be inherent in the meaning of "emergency." But the UN Human Rights Committee on 24 July 2001, in General Comment No 29 on article 4 of the ICCPR, observed in para 2 that:

      "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.

    23. No state other than the United Kingdom has derogated from article 5. In Resolution 1271 adopted on 24 January 2002, the Parliamentary Assembly of the Council of Europe resolved (para 9) that:

      "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.

    24. The appellants submitted that detailed information pointing to a real and imminent danger to public safety in the United Kingdom had not been shown. In making this submission they were able to rely on a series of reports by the Joint Committee on Human Rights. In its Second Report of the Session 2001-2002 (HL paper 37, HC 372), made on 14 November 2001 when the 2001 Act was a Bill before Parliament, the Joint Committee stated (in para 30):

      "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.

    25. The Attorney General, representing the Home Secretary, answered these points. He submitted that an emergency could properly be regarded as imminent if an atrocity was credibly threatened by a body such as Al-Qaeda which had demonstrated its capacity and will to carry out such a threat, where the atrocity might be committed without warning at any time. The Government, responsible as it was and is for the safety of the British people, need not wait for disaster to strike before taking necessary steps to prevent it striking. As to the requirement that the emergency be temporary, the Attorney General did not suggest that an emergency could ever become the normal state of affairs, but he did resist the imposition of any artificial temporal limit to an emergency of the present kind, and pointed out that the emergency which had been held to justify derogation in Northern Ireland in 1988 had been accepted as continuing for a considerable number of years (see Marshall v United Kingdom (10 July 2001, Appn No 41571/98) para 18 above). Little help, it was suggested, could be gained by looking at the practice of other states. It was for each national government, as the guardian of its own people's safety, to make its own judgment on the basis of the facts known to it. Insofar as any difference of practice as between the United Kingdom and other Council of Europe members called for justification, it could be found in this country's prominent role as an enemy of Al-Qaeda and an ally of the United States. The Attorney General also made two more fundamental submissions. First, he submitted that there was no error of law in SIAC's approach to this issue and accordingly, since an appeal against its decision lay only on a point of law, there was no ground upon which any appellate court was entitled to disturb its conclusion. Secondly, he submitted that the judgment on this question was pre-eminently one within the discretionary area of judgment reserved to the Secretary of State and his colleagues, exercising their judgment with the benefit of official advice, and to Parliament.

    26. The appellants have in my opinion raised an important and difficult question, as the continuing anxiety of the Joint Committee on Human Rights, the observations of the Commissioner for Human Rights and the warnings of the UN Human Rights Committee make clear. In the result, however, not without misgiving (fortified by reading the opinion of my noble and learned friend Lord Hoffmann), I would resolve this issue against the appellants, for three main reasons.

    27. First, it is not shown that SIAC or the Court of Appeal misdirected themselves on this issue. SIAC considered a body of closed material, that is, secret material of a sensitive nature not shown to the parties. The Court of Appeal was not asked to read this material. The Attorney General expressly declined to ask the House to read it. From this I infer that while the closed material no doubt substantiates and strengthens the evidence in the public domain, it does not alter its essential character and effect. But this is in my view beside the point. It is not shown that SIAC misdirected itself in law on this issue, and the view which it accepted was one it could reach on the open evidence in the case.

    28. My second reason is a legal one. The European Court decisions in Ireland v United Kingdom (1978) 2 EHRR 25; Brannigan and McBride v United Kingdom (1993) 17 EHRR 539; Aksoy v Turkey (1996) 23 EHRR 553 and Marshall v United Kingdom (10 July 2001, Appn. No. 41571/98) seem to me to be, with respect, clearly right. In each case the member state had actually experienced widespread loss of life caused by an armed body dedicated to destroying the territorial integrity of the state. To hold that the article 15 test was not satisfied in such circumstances, if a response beyond that provided by the ordinary course of law was required, would have been perverse. But these features were not, on the facts found, very clearly present in Lawless v Ireland (No 3) (1961) 1 EHRR 15. That was a relatively early decision of the European Court, but it has never to my knowledge been disavowed and the House is required by section 2(1) of the 1998 Act to take it into account. The decision may perhaps be explained as showing the breadth of the margin of appreciation accorded by the Court to national authorities. It may even have been influenced by the generous opportunity for release given to Mr Lawless and those in his position. If, however, it was open to the Irish Government in Lawless to conclude that there was a public emergency threatening the life of the Irish nation, the British Government could scarcely be faulted for reaching that conclusion in the much more dangerous situation which arose after 11 September.

    29. Thirdly, I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre-eminently political judgment. It involved making a factual prediction of what various people around the world might or might not do, and when (if at all) they might do it, and what the consequences might be if they did. Any prediction about the future behaviour of human beings (as opposed to the phases of the moon or high water at London Bridge) is necessarily problematical. Reasonable and informed minds may differ, and a judgment is not shown to be wrong or unreasonable because that which is thought likely to happen does not happen. It would have been irresponsible not to err, if at all, on the side of safety. As will become apparent, I do not accept the full breadth of the Attorney General's argument on what is generally called the deference owed by the courts to the political authorities. It is perhaps preferable to approach this question as one of demarcation of functions or what Liberty in its written case called "relative institutional competence". The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions. The present question seems to me to be very much at the political end of the spectrum: see Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153, para 62, per Lord Hoffmann. The appellants recognised this by acknowledging that the Home Secretary's decision on the present question was less readily open to challenge than his decision (as they argued) on some other questions. This reflects the unintrusive approach of the European Court to such a question. I conclude that the appellants have shown no ground strong enough to warrant displacing the Secretary of State's decision on this important threshold question.

      Proportionality

    30. Article 15 requires that any measures taken by a member state in derogation of its obligations under the Convention should not go beyond what is "strictly required by the exigencies of the situation." Thus the Convention imposes a test of strict necessity or, in Convention terminology, proportionality. The appellants founded on the principle adopted by the Privy Council in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80. In determining whether a limitation is arbitrary or excessive, the court must ask itself:

      "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.

    31. The appellants' argument under this head can, I hope fairly, be summarised as involving the following steps:

          (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.

    32. It is unnecessary to linger on the first two steps of this argument, neither of which is controversial and both of which are clearly correct. The third step calls for closer examination. The evidence before SIAC was that the Home Secretary considered "that the serious threats to the nation emanated predominantly (albeit not exclusively) and more immediately from the category of foreign nationals." In para 95 of its judgment SIAC held:

      "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."
    33. The fourth step in the appellants' argument is of obvious importance to it. It is plain that sections 21 and 23 of the 2001 Act do not address the threat presented by UK nationals since they do not provide for the certification and detention of UK nationals. It is beside the point that other sections of the 2001 Act and the 2000 Act do apply to UK nationals, since they are not the subject of derogation, are not the subject of complaint and apply equally to foreign nationals. Yet the threat from UK nationals, if quantitatively smaller, is not said to be qualitatively different from that from foreign nationals. It is also plain that sections 21 and 23 do permit a person certified and detained to leave the United Kingdom and go to any other country willing to receive him, as two of the appellants did when they left for Morocco and France respectively (see para 2 above). Such freedom to leave is wholly explicable in terms of immigration control: if the British authorities wish to deport a foreign national but cannot deport him to country "A" because of Chahal their purpose is as well served by his voluntary departure for country "B". But allowing a suspected international terrorist to leave our shores and depart to another country, perhaps a country as close as France, there to pursue his criminal designs, is hard to reconcile with a belief in his capacity to inflict serious injury to the people and interests of this country. It seems clear from the language of section 21 of the 2001 Act, read with the definition of terrorism in section 1 of the 2000 Act, that section 21 is capable of covering those who have no link at all with Al-Qaeda (they might, for example, be members of the Basque separatist organisation ETA), or who, although supporting the general aims of Al-Qaeda, reject its cult of violence. The Attorney General conceded that sections 21 and 23 could not lawfully be invoked in the case of suspected international terrorists other than those thought to be connected with Al-Qaeda, and undertook that the procedure would not be used in such cases. A restrictive reading of the broad statutory language might in any event be indicated: Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. The appellants were content to accept the Attorney General's concession and undertaking. It is not however acceptable that interpretation and application of a statutory provision bearing on the liberty of the subject should be governed by implication, concession and undertaking.

    34. Some of these features of the 2001 Act were the subject of comment by the European Commissioner for Human Rights in his Opinion 1/2002 (28 August 2002):

      "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 from
      b.  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; and
      b.  not require a derogation from the European Convention on Human Rights."
    35. The fifth step in the appellants' argument permits of little elaboration. But it seems reasonable to assume that those suspected international terrorists who are UK nationals are not simply ignored by the authorities. When G, one of the appellants, was released from prison by SIAC on bail (G v Secretary of State for the Home Department (SC/2/2002, Bail Application SCB/10, 20 May 2004), it was on condition (among other things) that he wear an electronic monitoring tag at all times; that he remain at his premises at all times; that he telephone a named security company five times each day at specified times; that he permit the company to install monitoring equipment at his premises; that he limit entry to his premises to his family, his solicitor, his medical attendants and other approved persons; that he make no contact with any other person; that he have on his premises no computer equipment, mobile telephone or other electronic communications device; that he cancel the existing telephone link to his premises; and that he install a dedicated telephone link permitting contact only with the security company. The appellants suggested that conditions of this kind, strictly enforced, would effectively inhibit terrorist activity. It is hard to see why this would not be so.

    36. In urging the fundamental importance of the right to personal freedom, as the sixth step in their proportionality argument, the appellants were able to draw on the long libertarian tradition of English law, dating back to chapter 39 of Magna Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the Petition of Right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day. Recent statements, not in themselves remarkable, may be found in In re S-C (Mental Patient: Habeas Corpus) [1996] QB 599, 603 and In re Wasfi Suleman Mahmod [1995] Imm A R 311, 314. In its treatment of article 5 of the European Convention, the European Court also has recognised the prime importance of personal freedom. In Kurt v Turkey (1998) 27 EHRR 373, para 122, it referred to "the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities" and to the need to interpret narrowly any exception to "a most basic guarantee of individual freedom". In Garcia Alva v Germany (2001) 37 EHRR 335, para 39, it referred to "the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned". The authors of the Siracusa Principles, although acknowledging that the protection against arbitrary detention (article 9 of the ICCPR) might be limited if strictly required by the exigencies of an emergency situation (article 4), were nonetheless of the opinion that some rights could never be denied in any conceivable emergency and, in particular (para 70 (b)),

      "no person shall be detained for an indefinite period of time, whether detained pending judicial investigation or trial or detained without charge; ….."
    37. While the Attorney General challenged and resisted the third, fourth and fifth steps in the appellants' argument, he directed the weight of his submission to challenging the standard of judicial review for which the appellants contended in this sixth step. He submitted that as it was for Parliament and the executive to assess the threat facing the nation, so it was for those bodies and not the courts to judge the response necessary to protect the security of the public. These were matters of a political character calling for an exercise of political and not judicial judgment. Just as the European Court allowed a generous margin of appreciation to member states, recognising that they were better placed to understand and address local problems, so should national courts recognise, for the same reason, that matters of the kind in issue here fall within the discretionary area of judgment properly belonging to the democratic organs of the state. It was not for the courts to usurp authority properly belonging elsewhere. The Attorney General drew attention to the dangers identified by Richard Ekins in "Judicial Supremacy and the Rule of Law" (2003) 119 LQR 127. This is an important submission, properly made, and it calls for careful consideration.

    38. Those conducting the business of democratic government have to make legislative choices which, notably in some fields, are very much a matter for them, particularly when (as is often the case) the interests of one individual or group have to be balanced against those of another individual or group or the interests of the community as a whole. The European Court has recognised this on many occasions: Chassagnou v France (1999) 29 EHRR 615, para 113, and Hatton v United Kingdom (2003) 37 EHRR 611, paras 97-98, may be cited as recent examples. In para 97 of Hatton, a case which concerned aircraft noise at Heathrow, the Court said:

      "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.

    39. While any decision made by a representative democratic body must of course command respect, the degree of respect will be conditioned by the nature of the decision. As the European Court observed in Frettι v France (2002) 38 EHRR 438, para 40,

      "….. 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."
    40. The Convention regime for the international protection of human rights requires national authorities, including national courts, to exercise their authority to afford effective protection. The European Court made this clear in the early case of Handyside v United Kingdom (1976) 1 EHRR 737, para 48:

      "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.

    41. Even in a terrorist situation the Convention organs have not been willing to relax their residual supervisory role: Brogan v United Kingdom above, para 80; Fox, Campbell & Hartley v United Kingdom, above, paras 32-34. In Aksoy v Turkey (1996) 23 EHRR 553, para 76, the Court, clearly referring to national courts as well as the Convention organs, held:

      "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."
    42. It follows from this analysis that the appellants are in my opinion entitled to invite the courts to review, on proportionality grounds, the Derogation Order and the compatibility with the Convention of section 23 and the courts are not effectively precluded by any doctrine of deference from scrutinising the issues raised. It also follows that I do not accept the full breadth of the Attorney General's submissions. I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true, as pointed out in para 29 above, that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate. As Professor Jowell has put it

      "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.

    43. The appellants' proportionality challenge to the Order and section 23 is, in my opinion, sound, for all the reasons they gave and also for those given by the European Commissioner for Human Rights and the Newton Committee. The Attorney General could give no persuasive answer. In a discussion paper Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society (Cm 6147, February 2004) the Secretary of State replied to one of the Newton Committee's criticisms in this way:

      "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.

    44. Since, under section 7 of the Special Immigration Appeals Commission Act 1997 and section 30(5) of the 2001 Act, an appeal from SIAC lies only on a point of law, that is not the end of the matter. It is necessary to examine SIAC's reasons for rejecting this part of the appellants' challenge. They are given in para 51 of SIAC's judgment, and are fourfold:

          (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

    45. As part of their proportionality argument, the appellants attacked section 23 as discriminatory. They contended that, being discriminatory, the section could not be "strictly required" within the meaning of article 15 and so was disproportionate. The courts below found it convenient to address this discrimination issue separately, and I shall do the same.

    46. The appellants complained that in providing for the detention of suspected international terrorists who were not UK nationals but not for the detention of suspected international terrorists who were UK nationals, section 23 unlawfully discriminated against them as non-UK nationals in breach of article 14 of the European Convention. That article provides:

      "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."
    47. The United Kingdom did not derogate from article 14 of the European Convention (or from article 26 of the ICCPR, which corresponds to it). The Attorney General did not submit that there had been an implied derogation, an argument advanced to SIAC but not to the Court of Appeal or the House.

    48. The foreign nationality of the appellants does not preclude them from claiming the protection of their Convention rights. By article 1 of the Convention (which has not been expressly incorporated) the contracting states undertook to secure the listed Convention rights "to everyone within their jurisdiction". That includes the appellants. The European Court has recognised the Convention rights of non-nationals: see, for a recent example, Conka v Belgium (2002) 34 EHRR 1298. This accords with domestic authority. In Khawaja v Secretary of State for the Home Department [1984] 1 AC 74:

      "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."
    49. It was pointed out that nationality is not included as a forbidden ground of discrimination in article 14. The Strasbourg Court has however treated nationality as such. In Gaygusuz v Austria (1996) 23 EHRR 364, para 42, it said:

      "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.

    50. The first important issue between the parties was whether, in the present case, the Secretary of State had discriminated against the appellants on the ground of their nationality or immigration status. The Court gave guidance on the correct approach in the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, para 10:

      "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?"
    51. It is plain that the facts fall within the ambit of article 5. That is why the United Kingdom thought it necessary to derogate. The Attorney General reserved the right to argue in another place at another time that it was not necessary to derogate, but he accepted for the purpose of these proceedings that it was. The appellants were treated differently from both suspected international terrorists who were not UK nationals but could be removed and also from suspected international terrorists who were UK-nationals and could not be removed. There can be no doubt but that the difference of treatment was on grounds of nationality or immigration status (one of the proscribed grounds under article 14). The problem has been treated as an immigration problem.

    52. The Attorney General submitted that the position of the appellants should be compared with that of non-UK nationals who represented a threat to the security of the UK but who could be removed to their own or to safe third countries. The relevant difference between them and the appellants was that the appellants could not be removed. A difference of treatment of the two groups was accordingly justified and it was reasonable and necessary to detain the appellants. By contrast, the appellants' chosen comparators were suspected international terrorists who were UK nationals. The appellants pointed out that they shared with this group the important characteristics (a) of being suspected international terrorists and (b) of being irremovable from the United Kingdom. Since these were the relevant characteristics for purposes of the comparison, it was unlawfully discriminatory to detain non-UK nationals while leaving UK nationals at large.

    53. Were suspected international terrorists who were UK nationals, the appellants' chosen comparators, in a relevantly analogous situation to the appellants? The question, as posed by Laws LJ in R (Carson) v Secretary of State for Work and Pensions [2003] 3 All ER 577, para 61, is whether the circumstances of X and Y are so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X. The Court of Appeal thought not because (per Lord Woolf, para 56) "the nationals have a right of abode in this jurisdiction but the aliens only have a right not to be removed". This is, however, to accept the correctness of the Secretary of State's choice of immigration control as a means to address the Al-Qaeda security problem, when the correctness of that choice is the issue to be resolved. In my opinion, the question demands an affirmative answer. Suspected international terrorists who are UK nationals are in a situation analogous with the appellants because, in the present context, they share the most relevant characteristics of the appellants.

    54. Following the guidance given in the Belgian Linguistic Case (No 2) (see para 50 above) it is then necessary to assess the justification of the differential treatment of non-UK nationals "in relation to the aim and effects of the measure under consideration". The undoubted aim of the relevant measure, section 23 of the 2001 Act, was to protect the UK against the risk of Al-Qaeda terrorism. As noted above (para 32) that risk was thought to be presented mainly by non-UK nationals but also and to a significant extent by UK nationals also. The effect of the measure was to permit the former to be deprived of their liberty but not the latter. The appellants were treated differently because of their nationality or immigration status. The comparison contended for by the Attorney General might be reasonable and justified in an immigration context, but cannot in my opinion be so in a security context, since the threat presented by suspected international terrorists did not depend on their nationality or immigration status. It is noteworthy that in Ireland v United Kingdom (1978) 2 EHRR 25 the European Court was considering legislative provisions which were, unlike section 23, neutral in their terms, in that they provided for internment of loyalist as well as republican terrorists. Even so, the Court was gravely exercised whether the application of the measures had been even handed as between the two groups of terrorists. It seems very unlikely that the measures could have been successfully defended had they only been capable of application to republican terrorists, unless it were shown that they alone presented a threat.

    55. The Attorney General also made a more far-reaching submission. He relied on the old-established rule that a sovereign state may control the entry of aliens into its territory and their expulsion from it. He submitted that the Convention permits the differential treatment of aliens as compared with nationals. He also submitted that international law sanctions the differential treatment, including detention, of aliens in times of war or public emergency.

    56. In support of the first of these submissions he relied on Moustaquim v Belgium (1991) 13 EHRR 802, a case in which a Moroccan national, convicted of serious offences, was ordered to be deported. The Court rejected a complaint under article 14, holding (in para 49) that the applicant's position could not be compared with that of Belgian juveniles, since they had a right of abode in their own country and could not be expelled from it. It is indeed obvious that in an immigration context some differentiation must almost inevitably be made between nationals and non-nationals since the former have a right of abode and the latter do not. Further examples may be found in Agee v United Kingdom (1976) 7 DR 164 and Maaouia v France (2000) 33 EHRR 1037. The Convention recognises in article 5(1)(f) that a non-national may be lawfully detained pending deportation, and that is a position in which a national could never find himself. The question is whether and to what extent states may differentiate outside the immigration context.

    57. In Resolution 1271 adopted on 24 January 2002, the Parliamentary Assembly of the Council of Europe held that "The combat against terrorism must be carried out in compliance with national and international law and respecting human rights". The Committee of Ministers of the Council of Europe on 11 July 2002 adopted "Guidelines on human rights and the fight against terrorism". These recognised the obligation to take effective measures against terrorism, but continued:

      "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."
    58. The Universal Declaration of Human Rights 1948 affirmed, in articles 1 and 2, the general principles of equality and non-discrimination. On 13 December 1985 the General Assembly of the United Nations made a Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live. This declaration recognised (article 2) that states might establish differences between nationals and aliens but required that laws and regulations should not be incompatible with the international legal obligations of the state, including those in the field of human rights. Aliens should enjoy (article 5) "in accordance with domestic law and subject to the relevant international obligations of the state in which they are present" the right not to be deprived of liberty except on such grounds and in accordance with such procedures as are established by law and the right to be equal before the courts.

    59. The Human Rights Committee is the United Nations body charged with interpretation of the ICCPR and adjudication of questions arising under it. In General Comment No 15, adopted in 1986, the Committee ruled:

      "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".

    60. Article 4 of the ICCPR, which permits derogation, contains two conditions found in article 15 of the European Convention ("to the extent strictly required by the exigencies of the situation" and "provided that such measures are not inconsistent with their other obligations under international law") and one that is not expressly found ("and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin"). In General Comment No 29, adopted on 24 July 2001 (and therefore before the events of 11 September) the Human Rights Committee considered article 4 and article 26 (non-discrimination) of the ICCPR. The Committee said:

      "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."
    61. The Security Council of the United Nations, in Resolution 1456 adopted on 20 January 2003, required that

      "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