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Derogating from (Human Rights) Treaties
  • 1 ECHR, Arts. 5 and 15; ICCPR, Art. 4

    European Convention on Human Rights (ECHR)

    Art. 5:

    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:
    a. the lawful detention of a person after conviction by a competent court;
    b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
    c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
    d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
    e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
    f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

    2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

    3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

    4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

    5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

    ECHR, Art. 15

    1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

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

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

    ICCPR

    Art. 4:
    1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

    2. No derogation from articles 6 [life], 7 [torture], 8 (paragraphs I and 2) [slavery], 11 [imprisonment for contract breach], 15 [prohibition of ex post facto prosecution], 16 [recognition before the law] and 18 [freedom of thought, conscience, religion] may be made under this provision.

    3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

  • 2 European Court of Human Rights (ECtHr), Ireland v. United Kingdom, App. No. 5310(71) (1978), excerpt

    European Court of Human Rights
     
    Ireland v. United Kingdom, App. No. 5310/71 (1978)


     
    JUDGMENT
    AS TO THE FACTS

    I. THE EMERGENCY SITUATION AND ITS BACKGROUND

    11. The tragic and lasting crisis in Northern Ireland lies at the root of the present case. In order to combat what the respondent Government describe as "the longest and most violent terrorist campaign witnessed in either part of the island of Ireland", the authorities in Northern Ireland exercised from August 1971 until December 1975 a series of extrajudicial powers of arrest, detention and internment. The proceedings in this case concern the scope and the operation in practice of those measures as well as the alleged ill-treatment of persons thereby deprived of their liberty.

    12. Up to March 1975, on the figures cited before the Commission by the respondent Government, over 1,100 people had been killed, over 11,500 injured and more than £140,000,000 worth of property destroyed during the recent troubles in Northern Ireland. This violence found its expression in part in civil disorders, in part in terrorism, that is organised violence for political ends….

    C. Situation from 1970 until the introduction of internment on 9 august 1971

    29. The situation worsened in 1970. The number of explosions recorded by the police jumped dramatically from a total of 8 in 1969 to 155 in 1970. Some explosions were caused by Loyalists - about 25 according to statistics cited by the Commission - but there is no dispute that the majority were the work of the IRA. In total, 23 civilians and 2 policemen were killed during the course of the year. None of these deaths was attributed by the police to Protestant activity.

    30. The terrorist campaign by the IRA appears to have begun in earnest in 1970 and to have been one primarily of bombing buildings and attacking the security forces. There was also undoubtedly some terrorist activity on the part of Loyalists, directed largely against politicians seen as hostile to Unionism and against Catholic owned or occupied property, particularly licensed premises. Responsibility for certain explosions was in fact claimed by the UVF.

    31. The sharp increase in what may be termed terrorist-type activity was not accompanied by the cessation of inter-communal street disturbances which continued sporadically during the year of 1970 and accounted for the deaths of a number of people.

    32. Between January and July 1971, the violence intensified, being marked by a dramatic upsurge in terrorist activity by the IRA. Police statistics record a total of 304 explosions, including 94 for the one month of July. Shooting at the security forces’ patrols built up and for the first time soldiers numbered amongst those killed. By 9 August, 13 soldiers, 2 policemen and 16 civilians had died since the beginning of the year. In addition, serious and prolonged rioting occurred in both Catholic and Protestant areas.
    Apart from one explosion in which a civilian was killed, there is no evidence of any deaths or even injuries having been caused by Loyalist terrorists. On the applicant Government’s own approximate estimate, Loyalist explosions accounted for only 14 out of the overall total of 304. Furthermore, as in 1970, Loyalist terrorists used mainly pipe bombs which were not very powerful in comparison with the devices employed by the IRA.
    The Commission stated in its report that the IRA were indisputably responsible for the very great majority of the acts of violence during this period. Loyalist terrorist activity had declined; there is no evidence that such Loyalist terrorism as did exist formed part of a highly organised campaign in the sense that IRA activity did. The Commission’s conclusion was that the threat and reality of serious terrorism came almost exclusively from the IRA.

    33. On the political front during 1970 and 1971, progress was made in implementing the reforms announced in October 1969 (see paragraph 26 above). The Prime Minister of Northern Ireland, however, resigned in March 1971. In June 1971, his successor proposed a number of further steps designed to provide a positive role for representatives of the minority community in the actual process of government.

    D. 9 August 1971 (introduction of internment) until 30 March 1972 (introduction of direct rule)

    1.The decision to introduce internment
    34. It was against the background outlined above that on 9 August 1971 the Northern Ireland Government brought into operation extrajudicial measures of detention and internment of suspected terrorists. From 9 August 1971 until 7 November 1972, when certain of the Special Powers Regulations were replaced, the authorities in Northern Ireland in fact exercised four such extrajudicial powers: (i) arrest for interrogation purposes during 48 hours (under Regulation 10); (ii) arrest and remand in custody (under Regulation 11 (1)); (iii) detention of an arrested person (under Regulation 11 (2)); and (iv) internment (under Regulation 12 (1)). An account of the operation of these powers and the procedures there under is given below at paragraphs 81 to 84….

    2. Reasons for the decision to introduce internment
    36. The campaign of violence carried out by the IRA had attained unprecedented proportions by the middle of 1971. This was clearly the dominant factor behind the decision to exercise the extrajudicial powers.
    Three principal reasons for the decision have been cited by the respondent Government. Firstly, the authorities took the view that the normal procedures of investigation and criminal prosecution had become inadequate to deal with IRA terrorists; it was considered that the ordinary criminal courts could no longer be relied on as the sole process of law for restoring peace and order. The second reason given, which was closely related to the first, was the widespread intimidation of the population. Such intimidation often made it impossible to obtain sufficient evidence to secure a criminal conviction against a known IRA terrorist in the absence of an admissible confession or of police or army testimony. Furthermore, the conduct of police enquiries was seriously hampered by the grip the IRA had on certain so-called "no-go" areas, that is Catholic strongholds where terrorists, unlike the police, could operate in comparative safety. Thirdly, the ease of escape across the territorial border between Northern Ireland and the Republic of Ireland presented difficulties of control.
    In addition to the three "security" reasons, there was, in the judgment of both the Northern Ireland Government and the United Kingdom Government, no hope of winning over the terrorists by political means, the reform programme initiated in 1969 having failed to prevent continuing violence.
    The authorities therefore came to the conclusion that it was necessary to introduce a policy of detention and internment of persons suspected of serious terrorist activities but against whom sufficient evidence could not be laid in court. This policy was regarded as a temporary measure primarily aimed at breaking the influence of the IRA. It was intended that a respite would be provided so as to enable the political and social reforms already undertaken to achieve their full effects….

    A. The special powers act and regulations there under
    1. Arrest under Regulation 10
    81. Under this Regulation
    - any individual could be arrested without warrant and detained for the purpose of interrogation;
    - the arrest could be authorised by any officer of the RUC;
    - the officer had to be of the opinion that the arrest should be realised "for the preservation of the peace and maintenance of order";
    - the detention could not exceed forty-eight hours.
    Exercise of the power was not conditional on suspicion of an offence and, following a practice originating in instructions issued to the military police in May 1970, the individual was not normally informed of the reason for his arrest. Although looked upon in principle as a preliminary to detention and internment (see paragraphs 83 and 84 below), arrest sometimes had the object of interrogating a person about the activities of others. Some arrests, and some subsequent detention orders, seem to have been made on the basis of inadequate or inaccurate information.
    The individual could not apply for bail (see the judgment of 12 October 1971 delivered by the High Court of Justice in Northern Ireland in the case of In Re McElduff). Moreover, arrests under this Regulation could not as a general rule be questioned in the courts but it was held in the judgment of 18 February 1972 delivered by the Armagh County Court in the case of Moore v. Shillington and Ministry of Defence that failure to comply with the proper procedure, including certain fundamental principles of the common law, invalidated exercise of the power.
    On 8 August 1973 the Emergency Provisions Act (see paragraph 88 below) repealed Regulation 10. 2,937 persons had been arrested there under prior to 30 March 1972, of whom 1,711 had been released within forty-eight hours and 1,226 had had their detention prolonged under other Regulations.


    2. Arrest under Regulation 11 (1)
    82. Under this Regulation
    - any individual could be arrested without warrant;
    - the arrest could be effected by any police constable, member of the forces or person authorised by the "Civil Authority" (i.e. the Minister of Home Affairs or his delegates);
    - the person making the arrest had to suspect the individual of acting, having acted or being about to act in a manner prejudicial to the preservation of the peace or maintenance of order or of having committed an offence against the Regulations;
    - the duration of the arrest was unlimited in law but limited in practice to seventy-two hours.
    Arrest under this Regulation could follow arrest under Regulation 10, giving a total of at most one hundred and twenty hours. The individual was not normally informed of the reason for his arrest.
    Judicial decisions show that review by the courts of the exercise of this power was limited. They could intervene if there had been bad faith, absence of a genuine suspicion, improper motive or failure to comply either with the statutory procedures or with such principles of the common law as were held not to be excluded by the language of the Regulation; however, they could not in general enquire into the reasonableness or fairness of the suspicion or of the decision to exercise the power (see the McElduff case and the judgment of 11 January 1973 delivered by the High Court of Justice in Northern Ireland in the case of Kelly v. Faulkner and others).
    Under Regulation 11 (4), the individual could apply to the Civil Authority for release on bail and, if that Authority so directed, might be conditionally discharged from custody by a magistrate; however, this right was abolished on 7 November 1972 with the revocation of Regulation 11 (4) by the Terrorists Order (see paragraph 85 below).
    Regulation 11 (1) was repealed on 8 August 1973 by the Emergency Provisions Act (see paragraph 88 below).

    3. Detention under Regulation 11 (2)
    83. Under this Regulation
    - any individual arrested under Regulation 11 (1) could be detained in prison or elsewhere on the conditions directed by the Civil Authority;
    - the power to make detention orders was vested in the Civil Authority and the initiative for them came from the police. The respondent Government said that they were always made on the personal decision, before direct rule, of the Prime Minister of Northern Ireland or, thereafter, of the Secretary of State for Northern Ireland or two other Ministers;
    - detention continued until the individual was discharged by the Attorney-General or brought before a court. Its duration was unlimited in law but limited in practice, generally, to twenty-eight days.
    The respondent Government said that detention orders were made to enable the police to complete enquiries. If they had sufficient evidence to secure a conviction, the individual would be brought before an ordinary court in which event he was entitled to at least twenty-four hours’ notice of the charge. Alternatively, he might be released after a limited period or be the subject of an internment order (see paragraph 84 below).
    The detainee had the limited right to apply for bail afforded by Regulation 11 (4) (see paragraph 82 above). The position concerning supervision by the courts was the same as under Regulations 10 and 11 (1) (see the McElduff and the Kelly cases) and there was no other procedure for review of the detention.
    More than 1,250 detention orders were made under Regulation 11 (2), the vast majority before 30 March 1972. Nearly 120 orders were still in force on 7 November 1972 when the Regulation was revoked by the Terrorists Order (see paragraph 85 below).

    4. Internment under Regulation 12 (1)
    84. Under this Regulation
    - any individual could by order be subjected to restrictions on movement or interned;
    - the power to make such orders was vested before direct rule in the Minister of Home Affairs for Northern Ireland on the recommendation of a senior police officer or of an advisory committee. The respondent Government said that they were always made on the personal decision of the Prime Minister of Northern Ireland;
    - the Minister had to be satisfied that for securing the preservation of the peace and the maintenance of order it was expedient that a person suspected of acting, having acted or being about to act in a manner prejudicial te peace and order be subjected to such restrictions or interned;
    - the duration of internment was unlimited. In many cases, after prolongation under later legislation (see paragraphs 85 and 88 below), it lasted for some years.
    Every order had to provide for the consideration by and advisory committee of representations made by the individual. In fact it reviewed the position of all internees whether they made representations or not. The committee composed of a judge and two laymen, could recommend, but not order, release.
    The individual had no right in law to appear or be legally represented before the committee, to test the grounds for internment, to examine witnesses against him or to call his own witnesses. In fact, he was allowed to appear and be interviewed and every effort was made to trace witnesses he proposed. The committee required the security forces to produce the information in their possession but statements of evidence against the internee so obtained remained anonymous, apparently to avoid retaliation. According to the Commission, the committee probably relied on evidence not admissible in a court of law.
    The position concerning the review of internment orders by the courts was the same as under Regulations 10, 11 (1) and 11 (2) (see the Kelly case).
    796 orders were made under Regulation 12 (1), all before the introduction of direct rule. Nearly 170 orders were still in force on 7 November 1972 when the Regulation was revoked by the Terrorists Order (see paragraph 85 below).
    By 30 March 1972, 588 of the 796 cases had been reviewed by the advisory committee (although 451 internees refused to appear) and 69 releases recommended. Of the 69 individuals all were released except 6 who refused to give an undertaking as to future good behaviour.

    B. On Article 5 taken together with Article 15 (art. 15+5)
    202. The applicant Government maintain that the powers relating to extrajudicial deprivation of liberty which were applied in Northern Ireland from 9 August 1971 to March 1975 were not in complete conformity with Article 15 (art. 15) and, accordingly, violated Article 5 (art. 5).
    The Commission is unanimous in not accepting this claim and it is disputed by the respondent Government.

    203. Article 15 (art. 15) provides:
    "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.
    No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision.
    Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed."

    204. Article 5 (art. 5) does not appear amongst the entrenched provisions listed in paragraph 2 of Article 15 (art. 15-2) and is therefore one of the Articles subject to the "right of derogation" reserved by the Contracting States, the exercise of which is regulated by paragraphs 1 and 3 (art. 15-1, art. 15-3).

    1. On the "public emergency threatening the life of the nation"
    205. Article 15 (art. 15) comes into play only "in time of war or other public emergency threatening the life of the nation". The existence of such an emergency is perfectly clear from the facts summarised above (paragraphs 12 and 29-75) and was not questioned by anyone before either the Commission or the Court. The crisis experienced at the time by the six counties therefore comes within the ambit of Article 15 (art. 15).

    2. On the "extent strictly required"
    206. The Contracting States may make use of their right of derogation only "to the extent strictly required by the exigencies of the situation". The Irish Government consider the "extent strictly required" to have been exceeded, whereas the British Government and the Commission assert the contrary.
    (a) The role of the Court
    207. The limits on the Court’s powers of review (see judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, p. 35, para. 10 in fine; Handyside judgment of 7 December 1976, Series A no. 24, p. 22, para. 48) are particularly apparent where Article 15 (art. 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 para. 1 (art. 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 (Article 19) (art. 19), is empowered to rule on whether the States have gone beyond the "extent strictly required by the exigencies" of the crisis (Lawless judgment of 1 July 1961, Series A no. 3, p. 55, para. 22, and pp. 57-59, paras. 36-38). The domestic margin of appreciation is thus accompanied by a European supervision.
     
    (c) Questions concerning the merits
    211. The Court has to decide whether the United Kingdom went beyond the "extent strictly required". For this purpose the Court must, as in the Lawless case (judgment of 1 July 1961, Series A no. 3, pp. 57-59, paras. 36-37), enquire into the necessity for, on the one hand, deprivation of liberty contrary to paragraph 1 of Article 5 (art. 5-1) and, on the other hand, the failure of guarantees to attain the level fixed by paragraphs 2 to 4 (art. 5-2, art. 5-3, art. 5-4).

    (i) On the necessity for derogation from paragraph 1 of Article 5 (art. 5-1) by extrajudicial deprivation of liberty
    212. Unquestionably, the exercise of the special powers was mainly, and before 5 February 1973 even exclusively, directed against the IRA as an underground military force. The intention was to combat an organisation which had played a considerable subversive role throughout the recent history of Ireland and which was creating, in August 1971 and thereafter, 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 (see paragraphs 16, 17, 20, 28-32, 35-42, 44, 47-48, 54-55, 58, 61, 63 and 67 above). Being confronted with a massive wave of violence and intimidation, the Northern Ireland Government and then, after the introduction of direct rule (30 March 1972), the British Government were reasonably entitled to consider that normal legislation offered insufficient resources for the campaign against terrorism and that recourse to measures outside the scope of the ordinary law, in the shape of extrajudicial deprivation of liberty, was called for. When the Irish Republic was faced with a serious crisis in 1957, it adopted the same approach and the Court did not conclude that the "extent strictly required" had been exceeded (Lawless judgment of 1 July 1961, Series A no. 3, pp. 35-36, para. 14, and pp. 57-58, para. 36).
    However, under one of the provisions complained of, namely Regulation 10, a person who was in no way suspected of a crime or offence or of activities prejudicial to peace and order could be arrested for the sole purpose of obtaining from him information about others - and this sometimes occurred (see paragraphs 38 and 81 above). This sort of arrest can be justifiable only in a very exceptional situation, but the circumstances prevailing in Northern Ireland did fall into such a category. Many witnesses could not give evidence freely without running the greatest risks (see paragraphs 36, 53, 58-59 and 74 above); the competent authorities were entitled to take the view, without exceeding their margin of appreciation, that it was indispensable to arrest such witnesses so that they could be questioned in conditions of relative security and not be exposed to reprisals. Moreover and above all, Regulation 10 authorised deprivation of liberty only for a maximum of forty-eight hours.

    213. From 9 August 1971 to 5 February 1973, the measures involving deprivation of liberty taken by the respondent State were used only against Republican terrorism even though as early as this period outrages, at first sporadic but later constantly more numerous, were attributable to Loyalist terrorism; even after 5 February 1973, the measures were applied against Republican terrorism to a much greater extent than against Loyalist terrorism despite the latter’s organisation and extensive development shortly after 30 March 1972.
    The Court will examine below (paragraphs 228-232) whether the difference of treatment between the two types of terrorism was such as to violate Article 14 (art. 14) of the Convention.
    This issue apart, it appears to the Court that the extrajudicial measures brought into operation could, in the situation described above, reasonably have been considered strictly required for the protection of public security and that, in the context of Article 15 (art. 15), their intrinsic necessity, once recognised, could not be affected by the restriction of their field of application.
    214. The Irish Government submit that experience shows extrajudicial deprivation of liberty to have been ineffectual. They contend that the policy introduced on 9 August 1971 not only failed to put a brake on terrorism but also had the result of increasing it (see paragraphs 42, 44 and 47-48 above). Consequently, the British Government, after attenuating the policy in varying degrees following the introduction of direct rule (see paragraphs 50, 57 and 64 above), abandoned it on 5 December 1975: since then, it appears that no one has been detained in the six counties under the emergency legislation, despite the persistence of an intense campaign of violence and even though the Emergency Provisions Amendment Act has remained in force (see paragraphs 76 and 91 above). This, claim the applicant Government, confirms that extrajudicial deprivation of liberty was not an absolute necessity.
    The Court cannot accept this argument.
    It is certainly not the Court’s function to substitute for the British Government’s assessment any other assessment of what might be the most prudent or most expedient policy to combat terrorism. The Court must do no more than review the lawfulness, under the Convention, of the measures adopted by that Government from 9 August 1971 onwards. For this purpose the Court must arrive at its decision in the light, not of a purely retrospective examination of the efficacy of those measures, but of the conditions and circumstances reigning when they were originally taken and subsequently applied.
    Adopting, as it must, this approach, the Court accepts that the limits of the margin of appreciation left to the Contracting States by Article 15 para. 1 (art. 15-1) were not overstepped by the United Kingdom when it formed the opinion that extrajudicial deprivation of liberty was necessary from August 1971 to March 1975.

    228. Before ruling on this submission, the Court must examine why, as early as 1971, Loyalist terrorism was not fought with the same weapons as Republican terrorism (see paragraphs 37-38 above).
    The Court finds that there were profound differences between Loyalist and Republican terrorism.
    At the time in question, the vast majority of murders, explosions and other outrages were attributable to Republicans. Although Loyalists had begun towards 1963 to perpetrate acts of violence, reaching a high level in 1969 when the IRA was scarcely in evidence (see paragraphs 20-28 above), since 1970 the scale of their activities had been minute in comparison with those of the IRA (see paragraphs 29-32, 37, 45 and 47 above).
    In the second place, the IRA, with its far more structured organisation, constituted a far more serious menace than the Loyalist terrorists. In 1970 and 1971 the Protestant community included political pressure groups with extremist tendencies, but apparently concealed within its ranks no underground military force akin to the IRA. At that time Loyalist terrorism was seen by the authorities as the sporadic work of individuals or isolated factions (see paragraph 37 above).
    Lastly, it was as a general rule easier to institute criminal proceedings against Loyalist terrorists than against their Republican counterparts and the former were frequently brought before the courts. Accordingly, although Loyalist terrorists were not extra judicially deprived of their liberty, they do not seem to have been able to act with impunity.

    229. The later period (30 March 1972 - 4 February 1973) gives rise to delicate questions.
    When assuming direct rule of the province (30 March 1972), the United Kingdom Government and Parliament wished, amongst other things, to combat the discrimination long prevalent there in the area of electoral rights, employment, housing, etc., in the hope of reaching an equitable solution to the Northern Ireland problem (see paragraphs 50, 60 and 77 above).
    However, this approach did not have a consequence which might have been expected, namely a complete equality of treatment between the two categories of terrorists in the exercise of the special powers. Shortly after 30 March 1972, there was a spectacular increase in Loyalist terrorism. Furthermore, the UVF proved to have increased its membership, expanded its holding of arms and improved its organisation. Towards the middle of the year, the police as a general rule had reasonably good intelligence as to the identity of violent elements on the Protestant side but there were cases in which it was impossible to procure sufficient evidence to bring them before the courts. Nevertheless, about ten months elapsed before the first two Loyalists were extra judicially deprived of their liberty (see paragraphs 52-53, 57, 61-62 and 66 above).
    Several explanations for what is at first sight a surprising time-lag are advanced by the respondent Government and the Commission, for example the three combined facts that it had been decided to attempt the phasing-out of internment, that the IRA were still responsible for the great majority of serious acts of terrorism and that, broadly speaking, the ordinary criminal processes remained far more suited to the campaign against the Loyalist terrorists than to that against their Republican opponents (see paragraphs 50, 54-58, 61 and 63 above).
    The cause or causes behind the conduct of the Government and the security forces at the time cannot be determined with certainty from the evidence, but it seems beyond doubt that the reasons that had been influential before 30 March 1972 became less and less valid as time went on.
    However, the Court considers it unrealistic to carve into clear-cut phases a situation that was inherently changing and constantly evolving. The Court can understand the authorities’ hesitating about the course to take, feeling their way and needing a certain time to try to adapt themselves to the successive demands of an ugly crisis. On the basis of the data before it, and bearing in mind the limits on its powers of review, the Court cannot affirm that, during the period under consideration, the United Kingdom violated Article 14, taken together with Article 5 (art. 14+5), by employing the emergency powers against the IRA alone.

    230. To sump up, the aim pursued until 5 February 1973 – the elimination of the most formidable organisation first of all – could be regarded as legitimate and the means employed do not appear disproportionate.
    231. 5 February 1973 marked a turning-point. Thereafter, extrajudicial deprivation of liberty was used to combat terrorism as such, as defined a few months previously by the 1972 Order, and no longer just a given organisation. In point of fact, the measures were not applied against Loyalist terrorists to anything like the same extent as against the IRA (see paragraph 69 above), but the IRA were still committing the majority of the acts of terrorism (see paragraph 67 above). Furthermore, Loyalist terrorists could still be brought before the courts more easily than their Republican counterparts. Criminal proceedings were opened against many of the former and often led to convictions, above all in one particular field – sectarian assassinations (see paragraphs 67, 70 and 76 above). The Court cannot reproach the United Kingdom for having attempted to avail itself as far as possible of this procedure under the ordinary law. Taking into account, as it must, the full range of the processes of the law applied in the campaign against the two categories of terrorists, the Court finds that the initial difference of treatment did not continue during the last period considered.
    232. Accordingly, no discrimination contrary to Articles 14 and 5 (art. 14+5) taken together is established.

    FOR THESE REASONS, THE COURT
    II. ON ARTICLE 5 (art. 5)
    11. holds unanimously that at the relevant time there existed in Northern Ireland a public emergency threatening the life of the nation, within the meaning of Article 15 para. 1 (art. 15-1);

    12. holds unanimously that the British notices of derogation dated 20 August 1971, 23 January 1973 and 16 August 1973 fulfilled the requirements of Article 15 para. 3 (art. 15-3);

    13. holds by sixteen votes to one that, although the practice followed in Northern Ireland from 9 August 1971 to March 1975 in the application of the legislation providing for extrajudicial deprivation of liberty entailed derogations from paragraphs 1 to 4 of Article 5 (art. 5-1, art. 5-2, art. 5-3, art. 5-4), it is not established that the said derogations exceeded the extent strictly required by the exigencies of the situation, within the meaning of Article 15 para. 1 (art. 15-1);

    14. holds unanimously that the United Kingdom has not disregarded in the present case other obligations under international law, within the meaning of Article 15 para. 1 (art. 15-1);

    15. holds by fifteen votes to two that no discrimination contrary to Articles 14 and 5 (art. 14+5) taken together is established…

     

  • 3 United Kingdom House of Lords, A and others v Secretary of State for the Home Department, Session 2004-05 UKHL 56, excerpt

    United Kingdom House of Lords

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

    [2004] UKHL 56

    LORD BINGHAM OF CORNHILL

    My Lords, …

    2. Eight of the appellants were certified by the Home Secretary under section 21 of the Anti-terrorism, Crime and Security Act [ACS] 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 [i.e., this court], and the only duty of the House in its judicial capacity, is to decide whether the appellants' legal challenge is soundly based….

    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. …

    7. Her Majesty's Government reacted to the events of 11 September … [It] introduced (and Parliament, subject to amendment, very swiftly enacted) what became Part 4 of the Anti-terrorism, Crime and Security Act 2001. …

    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 allowed for certifying individuals as “terrorists,” Section 22 for their deportation, and Section 23 for indefinitely detaining them.]

    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… 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) [of the European Convention of Human Rights]. Thus, they contended, the threshold test for reliance on article 15 has not been satisfied.

    17. The European Court [of Human Rights] 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 [European] Commission [you do not need to know what it is] 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…

     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.  …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 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."…

        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. …

        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 …. 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. …. 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 [etc.]; 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. …

        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. … 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. …

    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. … 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."…

    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:…

        (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….

        32.  … 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. …

        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. … 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…: 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. … 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….

    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 …

    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. ...

    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. … Where the conduct of government is threatened by serious terrorism, difficult choices have to be made and the terrorist dimension cannot be overlooked. …

    39. … 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….

    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. …

    43. … The Attorney General could give no persuasive answer. … [T]he 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 … 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. …

    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..…

    LORD HOFFMANN My Lords,

       … 88.  The technical issue in this appeal is whether such a power can be justified on the ground that there exists a "war or other public emergency threatening the life of the nation" within the meaning of article 15 of the European Convention on Human Rights. But I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.

    89. The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the Convention, when it speaks of "war or other public emergency threatening the life of the nation", accurately states the conditions in which such legislation has previously been thought necessary.

    90. Until the Human Rights Act 1998, the question of whether the threat to the nation was sufficient to justify suspension of habeas corpus or the introduction of powers of detention could not have been the subject of judicial decision. There could be no basis for questioning an Act of Parliament by court proceedings. Under the 1998 Act, the courts still cannot say that an Act of Parliament is invalid. But they can declare that it is incompatible with the human rights of persons in this country. Parliament may then choose whether to maintain the law or not. The declaration of the court enables Parliament to choose with full knowledge that the law does not accord with our constitutional traditions.

    91. What is meant by "threatening the life of the nation"? The "nation" is a social organism, living in its territory (in this case, the United Kingdom) under its own form of government and subject to a system of laws which expresses its own political and moral values. When one speaks of a threat to the "life" of the nation, the word life is being used in a metaphorical sense. The life of the nation is not coterminous with the lives of its people. The nation, its institutions and values, endure through generations. In many important respects, England is the same nation as it was at the time of the first Elizabeth or the Glorious Revolution. The Armada threatened to destroy the life of the nation, not by loss of life in battle, but by subjecting English institutions to the rule of Spain and the Inquisition. The same was true of the threat posed to the United Kingdom by Nazi Germany in the Second World War. This country, more than any other in the world, has an unbroken history of living for centuries under institutions and in accordance with values which show a recognisable continuity.

    92. This, I think, is the idea which the European Court of Human Rights was attempting to convey when it said (in Lawless v Ireland (No 3) (1961) 1 EHRR 15) that it must be a "threat to the organised life of the community of which the State is composed", although I find this a rather dessicated description. Nor do I find the European cases particularly helpful. All that can be taken from them is that the Strasbourg court allows a wide "margin of appreciation" to the national authorities in deciding "both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it": Ireland v United Kingdom (1978) 2 EHRR 25, at para 207. What this means is that we, as a United Kingdom court, have to decide the matter for ourselves.

    93. Perhaps it is wise for the Strasbourg court to distance itself from these matters. The institutions of some countries are less firmly based than those of others. Their communities are not equally united in their loyalty to their values and system of government. I think that it was reasonable to say that terrorism in Northern Ireland threatened the life of that part of the nation and the territorial integrity of the United Kingdom as a whole. In a community riven by sectarian passions, such a campaign of violence threatened the fabric of organised society. The question is whether the threat of terrorism from Muslim extremists similarly threatens the life of the British nation.

    94. The Home Secretary has adduced evidence, both open and secret, to show the existence of a threat of serious terrorist outrages. The Attorney General did not invite us to examine the secret evidence, but despite the widespread scepticism which has attached to intelligence assessments since the fiasco over Iraqi weapons of mass destruction, I am willing to accept that credible evidence of such plots exist. The events of 11 September 2001 in New York and Washington and 11 March 2003 in Madrid make it entirely likely that the threat of similar atrocities in the United Kingdom is a real one.

    95. But the question is whether such a threat is a threat to the life of the nation. The Attorney General's submissions and the judgment of the Special Immigration Appeals Commission treated a threat of serious physical damage and loss of life as necessarily involving a threat to the life of the nation. But in my opinion this shows a misunderstanding of what is meant by "threatening the life of the nation". Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. …

    96. This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.

    97. For these reasons I think that the Special Immigration Appeals Commission made an error of law and that the appeal ought to be allowed. Others of your Lordships who are also in favour of allowing the appeal would do so, not because there is no emergency threatening the life of the nation, but on the ground that a power of detention confined to foreigners is irrational and discriminatory. I would prefer not to express a view on this point. I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

    LORD WALKER OF GESTINGTHORPE

    My Lords,…

    209. I have the misfortune to differ from most of your Lordships as to whether the derogating measures are proportionate, rational and non-discriminatory, or are in the alternative disproportionate, irrational and offensively discriminatory. In the circumstances it would be inappropriate for me to add much to the already considerable volume of your Lordships' reasons; but it would also be inappropriate, in such an important case, not to set out briefly the reasons for my dissent. I hardly need add that having had the great advantage of reading and considering in draft all your Lordships' speeches, it is only with great diffidence that I have arrived at, and I still maintain, a different opinion. I do so for three main reasons:

        (1)  When this country is faced, as it is, with imminent threats from enemies who make use of secrecy, deception and surprise, the need for anti-terrorist measures to be "strictly necessary" must be interpreted in accordance with the precautionary principle recognised by the Strasbourg Court in Ireland v United Kingdom…

  • 4 “France’s Diminished Liberties,” New York Times, January 4, 2016

  • 5 France, “Note verbale to [Council of Europe],” November 24, 2015

    Note verbale from the Permanent Representation of France, November 24, 2015

    The Permanent Representation of France informs the Secretary General of the Council of Europe of the following:

    On 13 November 2015, large-scale terrorist attacks took place in the Paris region.

    The terrorist threat in France is of a lasting nature, having regard to information from the intelligence services and to the international context.

    The French Government has decided, by Decree No. 2015-1475 of 14 November 2015, to apply Law No. 55-385 of 3 April 1955 on the state of emergency.

    Decrees No. 2015-1475, No. 2015-1476 and No. 2015-1478 of 14 November 2015 and No. 2015-1493 and No. 2015-1494 of 18 November 2015 have defined a number of measures that may be taken by the administrative authorities.

    The extension of the state of emergency for three months, with effect from 26 November 2015, was authorised by Law No. 2015-1501 of 20 November 2015. This law also amends certain of the measures provided for by the Law of 3 April 1955 in order to adapt its content to the current context.

    The texts of the decrees and laws mentioned above are attached to this letter.

    Such measures appeared necessary to prevent the commission of further terrorist attacks.

    Some of them, prescribed by the decrees of 14 November 2015 and 18 November 2015 and by the Law of 20 November 2015, may involve a derogation from the obligations under the [European] Convention for the Protection of Human Rights and Fundamental Freedoms. I would therefore kindly request you to consider that this letter constitutes information for the purposes of Article 15 of the Convention.

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