United Kingdom House of Lords, A and others v Secretary of State for the Home Department, Session 2004-05 UKHL 56, excerpt | Samuel Moyn | August 01, 2016


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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


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. …


    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..…


   … 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.


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…


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August 01, 2016

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Samuel Moyn

Harvard Law School

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