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

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    The reference to the Court is of course to the European Court of Human Rights itself. But in my view the same principle applies, with little less force, to review by a national court. The judgment continued, at p 96, para 220:

    "When a State is struggling against a public emergency threatening the life of the nation, it would be rendered defenceless if it were required to accomplish everything at once, to furnish from the outset each of its chosen means of action with each of the safeguards reconcilable with the priority requirements for the proper functioning of the authorities and for restoring peace within the community. The interpretation of article 15 must leave a place for progressive adaptations."

    198.  In his written and oral submissions the Attorney General understandably emphasised the shocking and unprecedented nature of the outrages carried out in the United States on 11 September 2001; and, equally understandably, none of those arguing for the appeals to be allowed dissented from this emphasis. I think this may have led to insufficient attention being directed, in the course of argument, to the state of the United Kingdom's anti-terrorist legislation immediately before 11 September 2001. The United Kingdom Government's legislative reaction to what happened in the United States had to start from the law as it stood at that time.

    199.  There is a helpful background summary by Professor A T H Smith in the chapter on offences against the state in English Public Law (edited by Professor David Feldman, 2004), p 1334. I will set it out in full:

    "It would be a mistake to suppose that the UK law devoted to the suppression of terrorism is particularly modern, let alone a reaction to the events that convulsed the world following the attacks in the United States in September 2001. Continuing problems in Northern Ireland meant that the statute books were replete with offences directed against terrorist groups and their activities. Some time before the American events and in the light of a continued improvement of the situation in Northern Ireland, it had been decided to replace the legislation hitherto designated as 'temporary' with a revised framework. The opportunity was to be taken at the same time to acknowledge that there was an increasingly international dimension to terrorism, and the result was the Terrorism Act 2000. Further initiatives were taken in response to the American atrocities, in the Anti-terrorism, Crime and Security Act 2001. These confirm and extend the measures relating to, for example, proscribed organizations, ie organizations (including Irish and other domestic or foreign groups) membership of or support for which is a criminal offence. The jurisdiction of the courts was extended to cover inciting terrorism overseas, and to deal with bribery and corruption outside this country. The law was also extended in certain respects to cater for the situation where the motivation for the commission of offences against the person or public order offences was religious hatred. The Acts additionally offer extended police powers, including powers to set up cordons, compulsory obtaining of testimony and evidence, additional disclosure powers in connection with financial organizations, account monitoring information, arrest without warrant, stop and search, search of premises, search of persons, parking restrictions, port and border controls, retention of communications data, electronic surveillance, curtailment of access to legal advice and the right to silence, and prohibitions on torture."

    There is also some detailed material in Professor Clive Walker's Blackstone's Guide to the Anti-Terrorism Legislation (2002), another work to which I acknowledge my indebtedness.

    200.  The Terrorism Act 2000 ("the 2000 Act") in its original form was a substantial enactment which received the Royal Assent on 20 July 2000 and came into force (for the most part) on 19 February 2001. (These dates may be compared with those of the first two major Al-Qa'ida attacks on United States interests, the bombing of the embassies in Kenya and Tanzania on 7 August 1998 and the bombing of the USS Cole on 12 October 2000). As Professor Smith points out, the 2000 Act took account both of the improved security position in Northern Ireland and the increasingly international character of terrorism. It also took account of the imminent coming into force of the Human Rights Act 1998 (for instance, section 118 of the 2000 Act, dealing with reverse burdens of proof, was introduced by amendment of the Bill after the decision of your Lordships' House in R v Director of Public Prosecution, Ex p Kebilene [2000] 2 AC 326, in which judgment was given on 28 October 1999).

    201.  The 2000 Act in its original form made many significant changes in the measures, most of them of an emergency nature, which had previously been in force to combat terrorism. There are detailed studies of the Act in Professor Walker's book and in an article by J J Rowe QC in [2001] Crim LR 527. For present purposes the most notable points are these. The Act contained (in section 1) a new definition, in wide terms, of terrorism. This is set out in the speech of my noble and learned friend Lord Bingham of Cornhill. The Act continued the earlier system of proscription of terrorist organisations. Schedule 2 to the Act sets out a list of proscribed organisations, and the Secretary of State can add to the list by statutory instrument. In its original form, Schedule 2 was restricted to organisations operating in, or closely connected with, Northern Ireland. Al-Qa'ida and the other organisations relevant to these appeals were added to the list by an order (the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001 (SI 2001/1261)) made on 28 March 2001 and coming into force on the following day.

    202.  The 2000 Act did not provide for exclusion orders of the type permitted by section 5 of the Prevention of Terrorism (Temporary Provisions) Act 1989 or for detention of the type permitted by section 36 of the Northern Ireland (Emergency Provisions) Act 1996. Both those statutes were repealed. (Large scale internment began in Northern Ireland in August 1971 under earlier legislation but was sharply reduced and then discontinued after direct rule began in March 1972: see the useful summary in Ireland v United Kingdom (1978) 2 EHRR 25, 33-58, paras 20-91 and especially pp 36-44, paras 34-60. The powers conferred by the 1996 Act were not, in the event, exercised.)

    203.  Parliament's decision not to include powers of internment in the 2000 Act was the subject of vigorous debate, described in Professor Walker's book at p31. Experience during the first and second world wars had shown that large-scale internment produced many injustices (and in some cases, interfered with the war effort) with no obvious gain to national security (see Professor Brian Simpson's work, In the Highest Degree Odious: Detention Without Trial in Wartime Britain, (1992), drawn on by my noble and learned friend Lord Bingham of Cornhill in his 2002 Romanes Lecture, "Personal Freedom and the Dilemma of Democracies" (2003) 52 ICLQ 841). Experience in Northern Ireland showed that (in conditions of internal sectarian violence rather than international war) internment was also a major obstacle to political progress and reconciliation. It was described (in the context of Northern Ireland) as "the terrorist's friend". It is not surprising, nor can it be a matter of criticism, that when the provisions of the 2000 Act came to be reconsidered after the shocking events of 11 September 2001, there was still a strong reluctance to reintroduce general powers of internment.

    204.  The 2000 Act in its original form did not alter the law in relation to the state of affairs revealed by the decision of the Strasbourg Court in Chahal v United Kingdom (1996) 23 EHRR 413. That case is described in Lord Bingham's speech. The judgment of the Strasbourg Court covers several important points, but for present purposes it is sufficient to note three points:

    (a)  article 3's prohibition on torture is absolute, and Chahal could not be returned to India;

    (b)  his detention during the protracted litigation, lengthy though it was, was not unreasonable or unlawful, but he could be detained only so long as his deportation was the end in view;

    (c)  the limited degree of judicial review of his detention and proposed deportation infringed article 5(4) of the Convention.

    205.  The outcome was that Chahal was released from detention and continued to live in this country. Parliament enacted the Special Immigration Appeals Commission Act 1997 establishing SIAC in order to provide the necessary degree of judicial review (SIAC's jurisdiction is extended by Part 4 of the 2001 Act). SIAC's procedure (following a Canadian precedent approved by the Strasbourg Court in Chahal, p 469, para 131) makes use of special advocates to protect the interests of suspected terrorists without compromising intelligence sources. Apart from the 1997 Act, Parliament did not before 2001 take steps to meet any threat to national security revealed by the decision in Chahal. In his speech in Rehman (which was, as already noted, largely written before but delivered after 11 September 2001) Lord Hoffmann simply noted, [2003] 1 AC 153, 193, para 54:

    "If there is a danger of torture, the Government must find some other way of dealing with a threat to national security".

    That is what Part 4 of the 2001 Act was intended to do.

    206.  In summary, the reach of the legislation, in relation to Al Qa'ida and its satellite organisations, was established and has been extended in three stages: first the 2000 Act; then the extension of the list of proscribed organisations so as to include Al Qa'ida and its satellites; and finally the further measures introduced, after the events of 11 September 2001, by the 2001 Act. The 2001 Act is also a substantial statute, containing 129 sections and 8 schedules. It makes many amendments to the 2000 Act and introduces other provisions covering a number of different matters including freezing orders, weapons of mass destruction, security of pathogens and toxins, nuclear security and aircraft security. Only Part 4 (sections 21 to 36), being concerned with alterations in immigration and asylum law, is aimed exclusively at persons who are not British nationals (had Brooke LJ, in para 111 of his admirable judgment in the Court of Appeal, understood the 2001 Act as a whole to be targeted at non-national terrorists alone, he would have been mistaken; but para 96 of his judgment makes clear that in para 111 he must have been referring to Part 4 alone: see [2004] QB 335, 377). Some provisions of the 2001 Act create new criminal offences in respect of acts performed overseas by British nationals only (see for instance sections 44, 47(7), 50(6) and 79(5)).

    207.  In these appeals attention has of course focused on Part 4 of the 2001 Act, since it contains the only provisions in respect of which the British Government thought it necessary to make a derogation from the Convention. Those are the measures which must be shown to be strictly required by the exigencies of the situation. But it would be a mistake, in my view, to divorce them entirely from their context, that is as part of a major enactment most of whose provisions are aimed impartially at British nationals and non-nationals, and some of whose provisions (those creating offences committed overseas) are aimed exclusively at nationals.

    208.  As to whether the 2001 Act was passed at a time of "public emergency threatening the life of the nation" within the meaning of article 15, both SIAC and the Court of Appeal concluded that there was such an emergency, and (in common with most of the House) I agree with their conclusion. A danger of terrorist action may be imminent even though there is uncertainty as to when, where and how the terrorists attack. Indeed (especially as the terrorists may try to use bacteriological, chemical, radiological or nuclear weapons) the uncertainty increases the gravity of the emergency, since it creates widespread anxiety and the need for comprehensive precautions. Given the requirement (under article15) for a strictly proportionate response to the emergency, there is no reason to set the threshold very high, and the jurisprudence of the European Court of Human Rights in the cases concerning Northern Ireland and the Irish Republic (especially the first, Lawless v Ireland (No 3) (1961) 1 EHRR 15 and the most recent, Marshall v United Kingdom App No 41571/98, 10 July 2001) shows that the Court has not set it very high.

    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.

    (2)  I agree with the Court of Appeal, and very respectfully   disagree with SIAC and the majority of the House, on the issue of discrimination.

    (3)  SIAC is an independent and impartial tribunal of unquestioned standing and expertise. It carefully considers any appeal by a suspected terrorist, and periodically reviews any of its decisions which have been adverse to a detained suspect. I would in no way dissent from condemning the odiousness of indefinite detention at the will of the Executive, but such a description cannot be applied to detention under Part 4 of the 2001 Act without so much qualification as to amount almost to contradiction.

    I will add some brief comments on the second and third points.

    210.  As to discrimination, I greatly respect the views of the majority, but I consider that there has been insufficient recognition that Part 4 of the 2001 Act is only a small (although undoubtedly important) part of Parliament's response to the events of 11 September 2001. Part 4 is (as its heading indicates) the only part of the 2001 Act which is concerned with immigration. It is also the only part of the 2001 Act in respect of which the Government felt it necessary to make a derogation from the Convention. But in my view it does not follow from those two facts that the Government can be said to have acted irrationally in using immigration control as the means of dealing with non-nationals suspected of involvement in terrorism. Those liable to be detained under Part 4 are only a small subset of non-national terrorist suspects, that is those who cannot be deported because of an apprehension of torture after their return home. All the other provisions of the 2001 Act are aimed at any terrorists or (in some cases) suspected terrorists, regardless of nationality (except that, as already noted, some offences under the 2001 Act can be committed only by nationals).

    211.  What is said on behalf of the appellants is that non-nationals who cannot be deported (because they would be at risk of torture contrary to Article 3) are in the same position as British nationals, in that they cannot be deported from the United Kingdom, and that they should therefore be treated in the same way. To detain one group but not the other is, it has been argued, unjustified discrimination between fair comparators. Lord Bingham has in his speech cited the approach proposed by Lord Steyn in R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196, para 42, amplifying the formulation by Brooke LJ in Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, para 20. The amplified formulation is useful so far as it goes but to my mind its drawback is that it hangs everything on the word "analogous" in the fourth question. Further analysis of the issue, and the competing interests at stake, has to be undertaken in order to answer the question whether the suggested comparators are in a relevantly analogous situation. This point was made by Laws LJ in R (Carson) v Secretary of State for Work and Pensions [2003] 3 All ER 577, para 61 and by my noble and learned friend Baroness Hale of Richmond in Ghaidan v Godin-Mendoza [2004] 3 WLR 113, para 134. There are attractions in the simpler test which Laws LJ proposes, but again it may still be necessary to spell out the process of reasoning adopted by his "rational and fair-minded person".

    212.  Mr Emmerson QC, for the first group of appellants, accepted that there was a difference between the suggested groups of comparators but he described it as technical. In my view the difference, seen in this context, is by no means technical. It is fundamental. British citizens have a right of abode (under sections 1 and 2 of the Immigration Act 1971). They cannot be deported, whatever crimes they have committed or may be thought likely to commit. There is therefore no question of their being detained with a view to deportation, regardless of whether there is any risk of their being tortured if sent overseas, or of whether there is any safe country to receive them. There is not therefore any question of detaining British citizens in "a prison with three walls" (the phrase used in the courts below in recognition of the fact that a suspected terrorist detained under Part 4 is free to choose, as two of Mr Emmerson's clients have chosen, to return to his own country, or to a country in which he has a status of dual nationality). Suspected terrorists who are British citizens could be detained only in "a prison with four walls"—that is, to use the normal phrase, they would have to be interned. Their internment would be both a grave invasion of their individual human rights and a drastic reversal of the considered choice of the legislature as enacted in the 2000 Act.

    213.  Mr Rabinder Singh QC (one of the counsel appearing for Liberty in the Court of Appeal and in this House) has in a recent lecture ("Equality: The Neglected Virtue" [2004] EHRLR 141, 151) criticised the Court of Appeal's reversal of SIAC's decision on the discrimination point:

    "Whenever a person argues that a measure is discriminatory the state could always caricature the argument as an argument that the state has not gone far enough.

    To take an extreme example which one hopes would never happen in this country: suppose the state announces that there is an economic crisis and that it is necessary in the public interest that property should be seized without compensation. It seeks to derogate from Art. 1 of Protocol 1. But then suppose that the state announces that the only property which is to be seized is that belonging to Jewish people. Immediately the question of discrimination arises. In one sense it could be said that the state has acted more proportionately by drafting its measure in a narrow way rather than by hitting everyone in society. But no one could seriously suggest that such a measure was compatible with human rights principles, because it would constitute the most offensive kind of discrimination."

    214.  That would indeed be discrimination of the most offensive kind. If instead the state decided to impose on every adult member of the public a capital levy of £10,000, there would be a semblance of equality, but it would still be irrational and unfair since it would have a far harsher effect on some members of the public (that is, those of modest means) than on other richer members of the public. A levy of £10,000 on every member of the public owning assets of over £100,000 would be more rational and fair, but would still produce grievances in borderline cases, and where property-owners could not raise money on their assets. To take another example slightly closer to the present appeals, a decision to seal off and evacuate some part of a town because of an imminent emergency would have a far greater effect on those who were permanent residents owning houses in the area, as compared with persons who were transient lodgers. Their cases would not be the same, and different treatment would be not only justified but also necessary. In each case the government must aim at "careful tailoring", to use McLachlin J's metaphor in RJR-MacDonald Inc v Attorney General of Canada [1995] 3 SCR 199, 342, para 160:

    "As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be 'minimal', that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator."

    215.  In this case a power of interning British citizens without trial, and with no option of going abroad if they chose to do so, would be far more oppressive, and a graver affront to their human rights, than a power to detain in "a prison with three walls" a suspected terrorist who has no right of abode in the United Kingdom, and whom the government could and would deport but for the risk of torture if he were returned to his own country. Detention of non-national suspects is still a cause of grave concern, and I share the anxieties expressed by Lord Woolf CJ in para 9 and by Brooke LJ in para 86 of their respective judgments in the Court of Appeal. But in my view Part 4 of the 2001 Act is not offensively discriminatory, because there are sound, rational grounds for different treatment.

    216.  This conclusion is in line with the decision of the European Court of Human Rights in Moustaquim v Belgium (1991) 13 EHRR 802, 816, para 49. The brevity of the Court's judgment on the point shows that it was regarded as clear and uncontroversial. The Court's decision in Gaygusuz v Austria (1996) 23 EHRR 364, by contrast, was a case of unjustifiable discrimination, since in the field of contributory social security benefits there was no good reason for discriminating against the applicant because he was not an Austrian citizen. He had worked in Austria and paid his social security contributions, and there was no good reason for discriminating against him on the ground of his nationality.

    217.  As I have said, the detention without trial of non-national suspected terrorists is a cause of grave concern. But the judgment of Parliament and of the Secretary of State is that these measures were necessary, and the 2001 Act contains several important safeguards against oppression. The exercise of the Secretary of State's powers is subject to judicial review by SIAC, an independent and impartial court, which under sections 25 and 26 of the 2001 Act has a wide jurisdiction to hear appeals, and must also review every certificate granted under section 21 at regular intervals. Moreover the legislation is temporary in nature. Any decision to prolong it is anxiously considered by the legislature. While it is in force there is detailed scrutiny of the operation of sections 21 to 23 by the individual (at present Lord Carlile QC) appointed under section 28. There is also a wider review by the Committee of Privy Councillors appointed under section 122. All these safeguards seem to me to show a genuine determination that the 2001 Act, and especially Part 4, should not be used to encroach on human rights any more than is strictly necessary.

    218.  I think it is also significant that in a period of nearly three years no more than seventeen individuals have been certified under section 21. Of course every single detention without trial is a matter of concern, but in the context of national security the number of persons actually detained (now significantly fewer than 17) is to my mind relevant to the issue of proportionality. Liberty in its written submissions (para 8) appears to rely on the small number of certifications as evidence that there is not a sufficiently grave emergency. That is, I think, a striking illustration of the dilemma facing a democratic government in protecting national security. I would dismiss these appeals.


My Lords,

    219.  I have read with admiration and complete agreement the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Scott of Foscote and Lord Rodger of Earlsferry. They have said everything that could possibly be said. I have nothing original to add. But this is the most important case to come before the House since I have been a member. Perhaps the most helpful thing that I can do is to provide a simple summary of the principles governing what we are doing and why we are doing it.

    220.  We do not have power in these proceedings to order that the detainees be released. This is not a challenge to the individual decisions to detain them. That may come before us in future. It is in that context that the issue of the admissibility of evidence which may have been obtained by the use of torture abroad could arise. But that issue is not before us at present. Before us is a challenge to the validity of the law under which the detainees are detained. That law is contained in an Act of Parliament, the Anti-terrorism, Crime and Security Act 2001. The Human Rights Act 1998 is careful to preserve the sovereignty of Parliament. The courts cannot strike down the laws which the Queen in Parliament has passed. However, if the court is satisfied that a provision in an Act of Parliament is incompatible with a Convention right, it may make a declaration of that incompatibility (under section 4 of the 1998 Act). This does not invalidate the provision or anything done under it. But Government and Parliament then have to decide what action to take to remedy the matter.

    221.  The Convention right in question here is the right under article 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 . . .".

    222.  There are then listed six possible reasons for depriving a person of his liberty, none of which applies here. These people are not detained under article 5(1)(f) "with a view to deportation or extradition" because they cannot be deported and no other country has asked for their extradition. They are being detained on suspicion of being international terrorists, a reason which does not feature in article 5. It does not feature because neither the common law, from which so much of the European Convention is derived, nor international human rights law allows indefinite detention at the behest of the executive, however well-intentioned. It is not for the executive to decide who should be locked up for any length of time, let alone indefinitely. Only the courts can do that and, except as a preliminary step before trial, only after the grounds for detaining someone have been proved. Executive detention is the antithesis of the right to liberty and security of person.

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