A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
223. Yet that is what the 2001 Act allows. The Home Secretary may issue a certificate (under section 21) if he reasonably (a) believes that a person's presence here is a risk to national security, and (b) suspects that he is a terrorist. A terrorist is someone who takes part in acts of international terrorism, belongs to an international terrorist group, or merely supports or assists such a group. These are all likely to be criminal offences under the Terrorism Act 2000 or other legislation. But a person so certified can be detained indefinitely (under section 23) without being charged with or tried for any criminal offence (indeed one of the detainees has been tried and acquitted of such an offence). There are safeguards, as the Attorney General has rightly pointed out, greater than under any earlier internment powers. Belmarsh is not the British Guantanamo Bay. Their cases must be reviewed by the Special Immigration Appeals Commission (SIAC). SIAC can see all the material which was available to the Home Secretary. But much of this is 'closed' so that the detainee and his lawyers cannot see it. Instead there are 'special advocates' who can see it, cross-examine witnesses, and make representation to SIAC about it, and may even persuade SIAC that some of the material should be disclosed to the detainee. But they cannot discuss it with or take instructions from the detainee, so they do not know whether he might have an answer to it. The detainee does not know a good deal of the case against him. He is not even interviewed by the authorities so that he can attempt to give some account of himself, (although that might be rather limited if they cannot tell him what they have against him). SIAC does know the case against him, but all it can do is decide whether the Home Secretary's belief and suspicion were in the circumstances reasonable. SIAC does not decide whether the detainee actually is an international terrorist as defined in the Act, merely whether the Home Secretary reasonably suspects that he is. Suspicion is an even lower hurdle than belief: belief involves thinking that something is true; suspicion involves thinking that something may be true. It is not surprising that, of the 16 who have been detained under section 23 so far, only one has had his certificate cancelled by SIAC. Another has had his certificate discharged by the Home Secretary. Two others have left for other countries. For the rest there is no end in sight and no clear idea of what they might be able to do to secure their release. One has been transferred to Broadmoor (we have not been told the legal basis for this) and another has been granted bail by SIAC on very strict conditions of house arrest because of his mental condition. If we have any imagination at all, this should come as little surprise. We have always taken it for granted in this country that we cannot be locked up indefinitely without trial or explanation.
224. Article 5 applies to 'everyone'. States who are parties to the European Convention are required by article 1 to secure the rights and freedoms defined in the Convention to 'everyone within their jurisdiction'. This includes everyone physically present within their territory. So it was necessary for the United Kingdom to depart from its normal obligations under the Convention in order to enact this legislation. Departure is permitted under article 15:
225. The rights defined in the Convention have become rights in United Kingdom law by virtue of the Human Rights Act; but section 1(2) provides that the rights defined in the Convention articles shall have effect subject to any 'designated derogation'. This means a derogation designated in an order made by the Secretary of State under section 14, in this case the Human Rights Act 1998 (Designated Derogation) Order 2001. Such an order would not be within his powers if it provided for a derogation which was not allowed by the Convention. Section 30(2) and (5) of the 2001 Act allow the detainees to challenge this derogation from their article 5(1) rights in proceedings before SIAC and in an appeal from SIAC's decision. Thus it is that we have power to consider the validity of the Derogation Order made by the Secretary of State and to quash it if it is invalid. If the Derogation Order is invalid, it follows that detention powers under the 2001 Act are incompatible with the Convention rights as defined in the Human Rights Act and that we have power to declare it so. It will then be for Parliament to decide what to do about it.
226. The courts' power to rule on the validity of the derogation is another of the safeguards enacted by Parliament in this carefully constructed package. It would be meaningless if we could only rubber-stamp what the Home Secretary and Parliament have done. But any sensible court, like any sensible person, recognises the limits of its expertise. Assessing the strength of a general threat to the life of the nation is, or should be, within the expertise of the Government and its advisers. They may, as recent events have shown, not always get it right. But courts too do not always get things right. It would be very surprising if the courts were better able to make that sort of judgment than the Government. Protecting the life of the nation is one of the first tasks of a Government in a world of nation states. That does not mean that the courts could never intervene. Unwarranted declarations of emergency are a familiar tool of tyranny. If a Government were to declare a public emergency where patently there was no such thing, it would be the duty of the court to say so. But we are here considering the immediate aftermath of the unforgettable events of 11 September 2001. The attacks launched on the United States on that date were clearly intended to threaten the life of that nation. SIAC were satisfied that the open and closed material before them justified the conclusion that there was also a public emergency threatening the life of this nation. I, for one, would not feel qualified or even inclined to disagree.
227. But what is then done to meet the emergency must be no more than"is strictly required by the exigencies of the situation". The Government wished to solve a problem which had three components: (1) it suspected certain people living here of being international terrorists - in the very broad definition given to that term by the Act; but (2) either it could not or it did not wish to prove this beyond reasonable doubt by evidence admissible in a court of law; and (3) it could not solve the problem by deporting them, either for practical or for legal reasons.
228. The Government knew about certain foreign nationals presenting this problem, because they were identified during the usual immigration appeals process. But there is absolutely no reason to think that the problem applies only to foreigners. Quite the reverse. There is every reason to think that there are British nationals living here who are international terrorists within the meaning of the Act; who cannot be shown to be such in a court of law; and who cannot be deported to another country because they have every right to be here. Yet the Government does not think that it is necessary to lock them up. Indeed, it has publicly stated that locking up nationals is a Draconian step which could not at present be justified. But it has provided us with no real explanation of why it is necessary to lock up one group of people sharing exactly the same characteristics as another group which it does not think necessary to lock up.
229. The Attorney General's arguments were mainly directed to the entirely different question of whether it is justifiable in international law to treat foreigners differently from nationals. The unsurprising answer is that some differences in treatment are indeed allowed. Foreigners do not have to be given the same rights to participate in the politics and government of the country as have citizens (see article 16 of the Convention). Nor do they have to be given the same rights to come or to stay here; if they are here, they may be refused entry or deported (and detained for that purpose under article 5(1)(f)). But while they are here they have the same human rights as everyone else. This includes not being forcibly removed to a place where they are liable to suffer torture or other severe ill-treatment contrary to article 3 of the Convention. It also includes not being locked up except in the circumstances allowed under article 5.
230. The Attorney General did argue that it would have been discriminatory to lock up the nationals as well as the foreigners, because the foreigners are free to leave this country if they can and want to do so, but nationals have no other country which has an obligation to receive them. It is correct that we have no power to force our nationals to go, unless some other country wishes to extradite them. But if it is necessary to lock anyone up in a 'prison with three walls', the reality is that it will depend upon the personal circumstances of each individual whether he has in fact somewhere else to go. Some nationals may, for example, have dual nationality or friends in foreign countries which are happy to receive them. But the very fact that it is a prison with only three walls also casts doubt upon whether it is "strictly required by the exigencies of the situation". What sense does it make to consider a person such a threat to the life of the nation that he must be locked up without trial, but allow him to leave, as has happened, for France where he was released almost immediately?
231. The conclusion has to be that it is not necessary to lock up the nationals. Other ways must have been found to contain the threat which they present. And if it is not necessary to lock up the nationals it cannot be necessary to lock up the foreigners. It is not strictly required by the exigencies of the situation.
232. It is also inconsistent with our other obligations under international law from which there has been no derogation, principally article 14 of the European Convention. This states:
233. This has five components, some of which overlap: (i) people belonging to a particular group or status (ii) must not be singled out for less favourable treatment (iii) from that given to other people who are in the same situation (iv) in relation to the enjoyment of their Convention rights (v) unless there is an objective justification for the difference in treatment.
234. Article 14 would make it unlawful to single out foreign nationals for less favourable treatment in respect of their article 5 rights whether or not the derogation from those rights was "strictly required by the exigencies of the situation". It is wrong to single them out for detention without trial if detention without trial is not strictly required to meet the exigencies of the situation. It is also wrong to single them out for detention without trial if detention without trial is strictly required, if there are other people who are in the same situation and there is no objective justification for the difference in treatment. Like cases must be treated alike.
235. Are foreigners and nationals alike for this purpose? The Attorney General argued that they are not. The foreigners have no right to be here and we would expel them if we could. We only have to allow them to stay to protect them from an even worse invasion of their human rights. Hence, he argued, the true comparison is not with suspected international terrorists who are British nationals but with foreign suspected international terrorists who can be deported. This cannot be right. The foreigners who can be deported are not like the foreigners who cannot. These foreigners are only being detained because they cannot be deported. They are just like a British national who cannot be deported. The relevant circumstances making the two cases alike for this purpose are the same three which constitute the problem: a suspected international terrorist, who for a variety of reasons cannot be successfully prosecuted, and who for a variety of reasons cannot be deported or expelled.
236. Even then, the difference in treatment might have an objective justification. But to do so it must serve a legitimate aim and be proportionate to that aim. Once again, the fact that it is sometimes permissible to treat foreigners differently does not mean that every difference in treatment serves a legitimate aim. If the situation really is so serious, and the threat so severe, that people may be detained indefinitely without trial, what possible legitimate aim could be served by only having power to lock up some of the people who present that threat? This is even more so, of course, if the necessity to lock people up in this way has not been shown.
237. Democracy values each person equally. In most respects, this means that the will of the majority must prevail. But valuing each person equally also means that the will of the majority cannot prevail if it is inconsistent with the equal rights of minorities. As Thomas Jefferson said in his inaugural address:
238. No one has the right to be an international terrorist. But substitute "black", "disabled", "female", "gay", or any other similar adjective for "foreign" before "suspected international terrorist" and ask whether it would be justifiable to take power to lock up that group but not the "white", "able-bodied", "male" or "straight" suspected international terrorists. The answer is clear.
239. I would therefore allow the appeals, quash the derogation order, and declare section 23 of the 2001 Act incompatible with the right to liberty in article 5(1) of the European Convention.
240. I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Bingham of Cornhill, and for the reasons which he has given, which also appear in the opinions of those of your Lordships who have reached the same conclusions, I would allow the appeals and make the order which he proposes.
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