3. Joint Opinion prepared for JUSTICE
by David Anderson QC and Jemima Stratford on the proposed derogation
from Article 5 ECHR and the Anti-Terrorism, Crime and Security
BilL, Clauses 21-32
1. The United Kingdom may derogate from
Article 5 of the European Convention of Human Rights ("ECHR")
(a) in time of war or other public emergency
threatening the life of the nation; and
(b) to the extent strictly required by the
exigencies of the situation; and
(c) to the extent that such measures are
not inconsistent with its other obligations under international
(ECHR Article 15; cf. Human Rights Act 1998,
2. Derogations from the Convention are extremely
rare. Of the 43 Council of Europe contracting States, only Turkey
currently has a derogation in force.
Furthermore, we understand that no contracting State has so far
sought to derogate from Article 5 in the light of the events of
11 September 2001.
3. The proposed derogation
would allow the Government to detain certain persons suspected
of involvement in international terrorism for indefinite periods
(though subject to the scrutiny of the Special Immigration Appeals
Commission: SIAC) and without taking any steps to deport them.
If valid, it would enable the Government to escape the well-established
principle that detention will be permissible under ECHR Article
5(1)(f) only for as long as deportation proceedings are in progress
and are being prosecuted with due diligence.
4. The Government rightly accepts that exercise
of the extended detention powers contained in clauses 21-32 of
the Anti-Terrorism, Crime and Security Bill ("the Bill")
will be incompatible with Article 5 of the ECHR in circumstances
where persons are detained with a view to deportation but without
deportation proceedings being commenced or prosecuted.
5. We have been asked by JUSTICE to give
our independent opinion on whetherin the light of those
extended detention powersthe proposed derogation satisfies
the conditions imposed by Article 15 of the ECHR and summarised
in paragraph 1 above. We consider them in turn.
6. The Government does not claim this to
be a "time of war". Rather, it claims the authority
to derogate on the basis that there exists an "other public
emergency threatening the life of the nation". These words,
as the European Court of Human Rights has repeatedly held:
"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 part."
7. The Court will not simply accept, without
evidence, that such an emergency exists. It leaves however a wide
margin of appreciation to national authorities, who are "in
principle better placed than the international judge . . . to
decide on the presence of such an emergency",
and has never yet taken issue with an assessment by national authorities
that such an emergency exists. Thus:
(a) The Irish Government was held to have
been justified in declaring a public emergency threatening the
life of the nation, in July 1957, because of the existence of
"a secret army" operating both in Ireland and the United
Kingdom (thus jeopardising relations between Ireland and its neighbour),
and because of "the steady and alarming increase in terrorist
activities" over the previous year.
(b) The Court considered the existence of
such an emergency to be "perfectly clear" when various
special powers (including internment) were introduced to Northern
Ireland in August 1971, against the background of "a dramatic
upsurge in terrorist activity" in the first half of the year,
coupled with serious and prolonged rioting.
(c) The Government was held to be justified
in taking the view that the situation in Northern Ireland continued
to amount to a public emergency threatening the life of the nation
in 1988, having regard to the thousands of terrorist deaths in
Northern Ireland since 1972, notwithstanding the fact that the
emergency was less than in 1984, when a previous derogation had
(d) Having reviewed "the particular
extent of PKK terrorist activity in South-East Turkey", which
included killings running at an annual rate of about 300, the
Court considered that there was "undoubtedly" a state
of public emergency threatening the life of Turkey in 1990.
8. The situation in the United Kingdom following
the attacks of 11 September 2001 is distinct from each of the
above emergencies, for there have been no Al Qaida attacks or
atrocities of any kind on United Kingdom soil. Nor, indeed, has
Al Qaida even been unambiguously identified as the perpetrator
of the US attacksthough Usama Bin Laden himself has come
close to admitting it.
Furthermore, and despite the inevitable judicial reticence on
such questions, a United Kingdom court might be encouraged to
apply a slightly stricter standard of review than does the Strasbourg
courtremote as it is from everyday life in the contracting
Statesto the question of whether there is a public emergency
threatening the life of the United Kingdom.
9. We consider however that as things stand,
both the courts of the United Kingdom and the Strasbourg court
would be likely to accept the Government's assessment that there
is a public emergency threatening the life of the United Kingdom.
They would, in particular, be respectful of the Government's clear
conclusions, supported as they are by credible if not conclusive
(a) Bin Laden and Al Qaida planned and carried
out the atrocities of 11 September;
(b) they retain the will and resources to
carry out further large-scale atrocities; and that
(c) as a result of its perceived strong support
for the United States and for Israel, the United Kingdom, and
United Kingdom nationals, are potential targets.
In those circumstances, the fortunate fact that no
atrocities have so far been perpetrated in the United Kingdom
is of secondary importance. The threat of very large loss of life
is ever-present; and the threat itself even if not realisedmight
truly be said to have brought about "an exceptional situation
of crisis or emergency".
10. We would however sound a note of warning.
The fact that a sufficiently grave public emergency may reasonably
be said to exist at present is no guarantee that such an emergency
will exist years, months or even weeks from now. The attacks of
11 September 2001 are central to the Government's attempt to justify
the proposed derogation.
Furthermore, as the Government reiterated earlier this week:
"No other organisation has both the motivation
and the capability to carry out attacks like those of the 11 Septemberonly
the Al Qaida network under Usama Bin Laden."
The claimed emergency is therefore dependent on the
continued operational effectiveness of Al Qaida.
11. If Al Qaida is effectively disabled,
for example by the capture of its leaders and seizure of its funds,
or if the passage of time shows its threats of further action
to be empty ones, it will no longer provide a legally acceptable
basis for the assertion that there is a state of public emergency
threatening the life of the United Kingdom. In that case, and
in the absence of some new threat of equivalent magnitude, the
derogation would in our opinion cease to be lawful.
12. The Strasbourg court has been understanding
towards the predicament of States attempting to cope with public
emergencies, showing tolerance of initial legislative failures
so long as they are promptly corrected, and resisting the temptation
to judge the efficacy of measures with the wisdom of hindsight.
13. The phrase "strictly required"
(emphasis added) is however important. It signals the need for
particularly close judicial scrutinycloser than that which
is applied under other parts of the Conventionof any measures
that it is sought to justify by way of a derogation. There are
parallels with the position under English law, in which:
"the courts should construe strictly any
statutory provision purporting to allow the deprivation of individual
liberty by administrative detention and should be slow to hold
that statutory provisions authorise administrative detention for
unreasonable periods or in unreasonable circumstances".
14. The cases on derogations afford many
examples of such close scrutiny. In Aksoy, the Court ruled
that not even the undoubted public emergency in south-east Turkey
could justify the holding of the applicant in detention for 14
days, without judicial control, on suspicion of involvement in
terrorist offences. The Court was influenced in that conclusion
by the fact that:
"the denial of access to a lawyer, doctor,
relative or friend and the absence of any realistic possibility
of being brought before a court to test the legality of the detention
meant that he was left completely at the mercy of those holding
and by the failure of the Turkish Government to adduce
"detailed reasons" justifying the measure.
15. The circumstances of the currently proposed
derogation are of course very different. In particular:
(a) The new power of detention is intended
to be applicable only to a narrow range of persons: international
terrorists whom it is wished to deport as a risk to national security,
but who cannot be deported either because they would be exposed
to torture, inhuman or degrading treatment in the country of deportation,
or for "practical reasons" such as the absence of a
(b) Provision is made in the Bill for immediate
appeal to (and subsequent review by) a senior and specialised
(c) Legal advice and representation will
be available, as presumably will access to doctors, relatives
16. On the other hand, the 14 days for which
Mr. Aksoy was detained were described by the Court as an "exceptionally
long" period; yet under the proposed Bill, persons may be
detained without maximum limit of timeperhaps (like Mr.
Chahal) for years. Furthermore, although SIAC provides a measure
of protection, the remedies of habeas corpus and judicial review
are entirely excluded.
17. In these circumstances, we consider
that any court will scrutinise the proposed arrangements with
particular care. We focus, as we believe the courts would do,
on three issues in particular:
(a) whether new powers of detention are necessary
(b) whether (if so) they are excessive in
their scope; and
(c) the adequacy of the judicial remedies
18. The paradigm case for the new detention
power is the suspected Al Qaida member who cannot be deported
to his own country because he would be tortured there, who cannot
be put on trial in the United Kingdom because there is insufficiently
firm evidence to bring a prosecution, yet who is perceived as
too dangerous to release on to the streets.
19. It might be argued that even in this
paradigm case, detention cannot be justified. Even persons suspected
of committing terrorist offences overseas can be prosecuted under
the Terrorism Act 2000, and be detained pending trial in the normal
way. In circumstances where there is insufficient evidence for
a prosecution, why should detention be necessary?
20. Such an argument would in our opinion
be unlikely to prevail. A court which is prepared to accept the
existence of a public emergency threatening the life of the nation
is likely also to perceive the necessity for detaining such a
person in the limited circumstances described. It would not however
be lawful to use detention in circumstances where it would be
feasible for a person to be either prosecuted or deported.
21. The scope of the proposed new detention
power for "international terrorists" goes well beyond
the paradigm case just described. In particular:
(a) The definition of "international
terrorist" extends not only to those belonging to international
terrorist groups, but to those with (undefined, and therefore
potentially remote) "links" to such groups.
(b) The definition of "international
terrorist" (which is taken from the Terrorism Act 2000) understands
terrorism in a significantly broader sense than the best available
international definition, that contained in the 1999 UN Convention
for the Suppression of the Financing of Terrorism, Article 2(1)(b).
(1) The UN Convention confines terrorism
to acts intended to cause death or serious injury; the Bill (borrowing
from the 2000 Act) includes acts intended to cause serious damage
to property, a serious risk to the health or safety of the public
and serious interference with or disruption of an electronic system.
(c) The "international terrorists"
caught by the Bill include those associated with groups having
no connection with Al Qaida or the 11 September attacks.
(d) The "international terrorists"
caught by the Bill include not only those who plot against the
United Kingdom but those who pose a direct threat only to a foreign
state or states. Although by clause 21(1)(b) the Secretary of
State must believe that a person's presence in the United Kingdom
is a risk to "national security", he could legitimately
so believe in the case of (for example) a Tamil Tiger, on the
basis of the doctrine that "action against a foreign state
may be capable indirectly of affecting the security of the United
22. In the light of these factors, it seems
to us that the Bill catches people whom it is not strictly required
to catch by the exigencies of the situation giving rise to the
derogation. We do not see that the threat of Al Qaida could justify
the indefinite detention of a suspected Tamil Tiger, still less
the indefinite detention of a person, who though not herself a
Tamil Tiger, has business or family "links" with a suspected
Tamil Tiger. Yet that is the effect of clause 21 of the Bill as
23. Clause 29(1) excludes both judicial
review and habeas corpus. In their place is a right of appeal
to SIAC under clause 25, and a right of periodic review under
clause 26. Those rights relate to the Secretary of State's issue
under clause 21 of a certificate stating his belief that a person's
presence in the United Kingdom is a risk to national security,
and his suspicion that the person is an international terrorist.
SIAC is given what is on its face the power to second-guess the
Secretary of State: by clause 25(2), SIAC must cancel the certificate
if it does not agree with his belief or suspicion. The established
SIAC procedures enable it to consider sensitive security information
when scrutinising the Secretary of State's certificate.
24. The SIAC appeal and review procedures
are to a large extent the functional equivalent of the judicial
review procedure and habeas corpus.
Indeed the clause 25(2) power, and the procedures for looking
at security information, permit closer scrutiny of the Secretary
of State's decision than might be possible in the administrative
court. Where extraordinary powers of detention are concerned,
the law requires the courts to be vigilant, even at times of national
It is particularly important that the factual conclusions of SIAC,
as the appointed specialist tribunal, should be unquestioned on
appeal, as indeed is required by section 7 of the SIAC Act 1997.
On that basis, we do not consider it impermissible for the Bill
to provide for appeal and review by SIAC, with subsequent recourse
to the Court of Appeal and House of Lords.
25. We are however concerned about two other
aspects of the review mechanism.
26. The first of these is the ouster clause
29(3). Though rather obscure, its effect appears to be to render
unreviewable, either in SIAC or in any court, the Secretary of
State's conclusion that a person cannot be removed from the United
Kingdom for Article 3 reasons or for practical considerations.
That is because such a conclusion inevitably underlies the use
of clause 22 or clause 23, and clause 29(3) states that a certificate
that specified action is taken in reliance on clauses 22 or 23
shall be conclusive of the matter certified. This seems unjustifiable.
If SIAC can be trusted to review a clause 21 determination, with
its sensitive judgments on national security and terrorism, it
should also be able to review the less sensitive (though potentially
still very important) determination as to the impossibility of
deportation. It is after all not inconceivable that a Secretary
of State might seek to shelter unjustifiably behind Article 3,
or a "practical consideration", in order to justify
the continued detention of a person whom he preferred to detain
rather than deport.
27. Our second concern relates to the interval
of six months that elapses between the determination of an appeal
and the initiation of the review procedure. Though a further review
may be available in the interim, this will be so only if the Commission
considers that it should be held because of a change in circumstances.
The six-month period is in our opinion unnecessarily and oppressively
long. It should at least be halved.
28. We note that the Government does not
propose to derogate from Article 9 of the International Covenant
on Civil and Political Rights. Article 9, unlike Article 5 of
the ECHR, does not lay down prescribed circumstances in which
detention may be lawful, but instead states that detention must
not be arbitrary and must be on grounds and in accordance with
procedures established by law. There may be an issue as to whether
the proposed new detention power might in certain circumstances
be used in an "arbitrary" manner, but we do not address
that issue further here.
29. Our conclusions are as follows:
(a) As things stand, the courts are likely
to accept the Government's assessment that there is a public emergency
threatening the life of the United Kingdom. This could however
change very rapidly. If the Al Qaida organisation is effectively
disabled, there will no longer be any legal basis for the proposed
(b) A court which is prepared to accept the
existence of a public emergency threatening the life of the nation
is also likely to perceive the necessity of detaining a suspected
Al Qaida member, though only in circumstances where he can neither
be deported nor put on trial.
(c) The scope of the proposed new detention
power is however unnecessarily broad, and so inconsistent with
Article 15 of the ECHR, in that
(1) it applies not only to suspected
members of international terrorist groups (broadly defined) but
to those having "links" with such persons;
(2) it applies to persons not associated
with Al Qaida in any way; and
(3) it applies to those who pose a direct
threat only to a foreign state or states (e.g. a Tamil Tiger).
(d) There is no objection in principle to
the SIAC appeal and review procedures. However for Article 15
of the ECHR to be complied with, we consider that:
(1) The ouster clause 29(3) should be
(2) the interval of six months that elapses
between the determination of the appeal and the automatic review
is too long and should at least be halved.
16 November 2001
11 The United Kingdom's limited derogation from Article
5, justified by events in Northern Ireland, was withdrawn with
effect from 26 February 2001: The Human Rights Act (Amendment)
Order 2001 Back
Designated in The Human Rights Act 1998 (Designated Derogation)
Order 2001. Back
Chahal v United Kingdom (1996) 23 EHRR 413, para 113, and
other authority there cited. Article 5(1)(f) allows detention
of "a person against whom action is being taken with a view
to deportation or extradition" Back
Lawless v Ireland A 3 (1961) para 28; Aksoy v Turkey
RJD 1996-VI para 70. Back
Aksoy, para 68. Back
Lawless, para 28. Back
Ireland v UK A 25 (1978) paras 32, 205. Back
Brannigan and McBride A 258-B(1993) paras, 12, 47. Back
Aksoy v Turkey RJD 1996-VI p. 2260, paras 31, 70. Back
Video interview of 20 October 2001. Back
"Responsibility for the Terrorist Atrocities in the United
States, 11.9.01: An Updated Account" (HMG, 15 November 2001).
This document quotes the words broadcast by a Bin Laden spokesman
on 13 October: "We also say and advise the Muslims in the
United States and Britain .. not to travel by plane. We also advise
them not to live in high-rise buildings or towers Back
The Human Rights 1998 (Designated Derogation) Order 2001, Schedule. Back
"Responsibility for the Terrorist Atrocities in the United
States, 11.9.01: An Updated Account" (HMG, 15 November 2001),
para 73. Back
Ireland v UK, paras 214, 220. Back
Tan te Lam v Tai A Chau Detention Centre (PC)  A.C.
97 at 111. Back
Aksoy, paras 78 and 83-84. Back
Cf. Chahal, paras 73-82. It is a violation of Article 3
(which permits of no exceptions or derogations) to expel an alien
to a country where he would face a real risk of being subjected
to torture or inhuman and degrading treatment. Back
As in Ali v Switzerland RJD 1998-V p. 2140, para 41. Back
Cf. the European Union's Proposal for a Council Framework Decision
on Combating Terrorism, 19.9.2001, COM (2001) 521 final.
The UN Convention requires the purpose of the act to be to "compel"
a Government or international organisation to do or abstain from
doing any act; the Bill (borrowing from the 2000 Act) only requires
the purpose to be to "influence" a government.
Home Secretary v Rehman  3 WLR 877, per Lord Slynn
(for the majority) at 884E. Lord Hoffmann added that it would
be open to the Secretary of State to conclude that "the promotion
of terrorism in a foreign country by a United Kingdom resident
would be contrary to the interests of national security":
Despite its great historical importance, habeas corpus has been
described on high authority as "a defective process, unnecessarily
and unsuccessfully competing with judicial review" (Simon
Brown LJ, ALBA lecture 1999). Such advantages as are claimed for
habeas corpus-the absence of a requirement for permission, a time
bar and a discretion to refuse relief, are shared by the SIAC
process provided for in the Bill. Back
Liversidge v Anderson  AC 206, dissenting speech
of Lord Atkin, approved by the House of Lords in R v IRC ex
p Rossminster  AC 952: "In this country, amid the
clash of arms, the laws are not silent. They may be changed, but
they speak the same language in war as in peace Back
See Rehman  3 WLR 1240 (CA) and  3 WLR 877
An ouster clause of this kind was found to be in violation of
Article 6 of the Convention in Tinnelly and McElduff v United
Kingdom (1999) 27 EHRR 249. Back