A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
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, dating back to chapter 39 of Magna Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the Petition of Right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day. Recent statements, not in themselves remarkable, may be found in In re S-C (Mental Patient: Habeas Corpus)  QB 599, 603 and In re Wasfi Suleman Mahmod  Imm A R 311, 314. In its treatment of article 5 of the European Convention, the European Court also has recognised the prime importance of personal freedom. In Kurt v Turkey (1998) 27 EHRR 373, para 122, it referred to "the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities" and to the need to interpret narrowly any exception to "a most basic guarantee of individual freedom". In Garcia Alva v Germany (2001) 37 EHRR 335, para 39, it referred to "the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned". The authors of the Siracusa Principles, although acknowledging that the protection against arbitrary detention (article 9 of the ICCPR) might be limited if strictly required by the exigencies of an emergency situation (article 4), were nonetheless of the opinion that some rights could never be denied in any conceivable emergency and, in particular (para 70 (b)),
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. The Attorney General drew attention to the dangers identified by Richard Ekins in "Judicial Supremacy and the Rule of Law" (2003) 119 LQR 127. This is an important submission, properly made, and it calls for careful consideration.
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. The European Court has recognised this on many occasions: Chassagnou v France (1999) 29 EHRR 615, para 113, and Hatton v United Kingdom (2003) 37 EHRR 611, paras 97-98, may be cited as recent examples. In para 97 of Hatton, a case which concerned aircraft noise at Heathrow, the Court said:
Where the conduct of government is threatened by serious terrorism, difficult choices have to be made and the terrorist dimension cannot be overlooked. This also the European Commission and Court have recognised in cases such as Brogan v United Kingdom (1988) 11 EHRR 117, para 80; Fox, Campbell & Hartley v United Kingdom (1990) 13 EHRR 157, paras 32, 34; and Murray v United Kingdom (1994) 19 EHRR 193, para 47. The same recognition is found in domestic authority: see, for example, Secretary of State for the Home Department v Rehman  1 AC 153, paras 28, 62.
39. While any decision made by a representative democratic body must of course command respect, the degree of respect will be conditioned by the nature of the decision. As the European Court observed in Fretté v France (2002) 38 EHRR 438, para 40,
A similar approach is found in domestic authority. In R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326, 381, Lord Hope of Craighead said:
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)  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  3 SCR 199, para 68, La Forest J, sitting in the same court, said:
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:
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:
Thus the European Commissioner for Human Rights had authority for saying (Opinion 1/2002, para 9):
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  UKHL 26,  2 AC 532, paras 23, 27.
41. Even in a terrorist situation the Convention organs have not been willing to relax their residual supervisory role: Brogan v United Kingdom above, para 80; Fox, Campbell & Hartley v United Kingdom, above, paras 32-34. In Aksoy v Turkey (1996) 23 EHRR 553, para 76, the Court, clearly referring to national courts as well as the Convention organs, held:
In Korematsu v United States 584 F Supp 1406 (1984) para 21, Judge Patel observed that the Supreme Court's earlier decision (323 US 214 (1944))
Simon Brown LJ in International Transport Roth GmbH v Secretary of State for the Home Department  QB 728 observed, in para 27, that
He went on to say, in para 54:
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. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate. As Professor Jowell has put it
See also Clayton, "Judicial deference and 'democratic dialogue': the legitimacy of judicial intervention under the Human Rights Act 1998"  PL 33.
43. The appellants' proportionality challenge to the Order and section 23 is, in my opinion, sound, for all the reasons they gave and also for those given by the European Commissioner for Human Rights and the Newton Committee. The Attorney General could give no persuasive answer. In a discussion paper Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society (Cm 6147, February 2004) the Secretary of State replied to one of the Newton Committee's criticisms in this way:
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. I do not consider SIAC's conclusion as one to which it could properly come. In dismissing the appellants' appeal, Lord Woolf CJ broadly considered that it was sensible and appropriate for the Secretary of State to use immigration legislation, that deference was owed to his decisions (para 40) and that SIAC's conclusions depended on the evidence before it (para 43). Brooke LJ reached a similar conclusion (para 91), regarding SIAC's findings as unappealable findings of fact. Chadwick LJ also regarded SIAC's finding as one of fact (para 150). I cannot accept this analysis as correct. The European Court does not approach questions of proportionality as questions of pure fact: see, for example, Smith and Grady v United Kingdom, above. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review. So would excessive deference, in a field involving indefinite detention without charge or trial, to ministerial decision. In my opinion, SIAC erred in law and the Court of Appeal erred in failing to correct its error.
45. As part of their proportionality argument, the appellants attacked section 23 as discriminatory. They contended that, being discriminatory, the section could not be "strictly required" within the meaning of article 15 and so was disproportionate. The courts below found it convenient to address this discrimination issue separately, and I shall do the same.
46. The appellants complained that in providing for the detention of suspected international terrorists who were not UK nationals but not for the detention of suspected international terrorists who were UK nationals, section 23 unlawfully discriminated against them as non-UK nationals in breach of article 14 of the European Convention. That article provides:
It is well established that the obligation on the state not to discriminate applies only to rights which it is bound to protect under the Convention. The appellants claim that section 23 discriminates against them in their enjoyment of liberty under article 5. Article 14 is of obvious importance. In his influential work "An International Bill of the Rights of Man" (1945), p 115, Professor Hersch Lauterpacht wrote:
Jackson J reflected this belief in his well-known judgment in Railway Express Agency Inc v New York 336 US 106, 112-113 (1949), when he said:
More recently, the Privy Council (per Lord Hoffmann, Matadeen v Pointu  1 AC 98, 109) observed, with reference to the principle of equality:
47. The United Kingdom did not derogate from article 14 of the European Convention (or from article 26 of the ICCPR, which corresponds to it). The Attorney General did not submit that there had been an implied derogation, an argument advanced to SIAC but not to the Court of Appeal or the House.
48. The foreign nationality of the appellants does not preclude them from claiming the protection of their Convention rights. By article 1 of the Convention (which has not been expressly incorporated) the contracting states undertook to secure the listed Convention rights "to everyone within their jurisdiction". That includes the appellants. The European Court has recognised the Convention rights of non-nationals: see, for a recent example, Conka v Belgium (2002) 34 EHRR 1298. This accords with domestic authority. In Khawaja v Secretary of State for the Home Department  1 AC 74:
49. It was pointed out that nationality is not included as a forbidden ground of discrimination in article 14. The Strasbourg Court has however treated nationality as such. In Gaygusuz v Austria (1996) 23 EHRR 364, para 42, it said:
The Attorney General accepted that "or other status" would cover the appellants' immigration status, so nothing turns on this point. Nationality is a forbidden ground of discrimination within section 3(1) of the Race Relations Act 1976 and the Secretary of State is bound by that Act by virtue of section 19B(1). It was not argued that in the present circumstances he was authorised to discriminate by section 19D.
50. The first important issue between the parties was whether, in the present case, the Secretary of State had discriminated against the appellants on the ground of their nationality or immigration status. The Court gave guidance on the correct approach in the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, para 10:
The question is whether persons in an analogous or relevantly similar situation enjoy preferential treatment, without reasonable or objective justification for the distinction, and whether and to what extent differences in otherwise similar situations justify a different treatment in law: Stubbings v United Kingdom (1996) 23 EHRR 213, para 70. The parties were agreed that in domestic law, seeking to give effect to the Convention, the correct approach is to pose the questions formulated by Grosz, Beatson and Duffy, Human Rights: The 1998 Act and the European Convention (2000), para C14-08, substantially adopted by Brooke LJ in Wandsworth London Borough Council v Michalak  EWCA Civ 271,  1 WLR 617, para 20, and refined in the later cases of R (Carson) v Secretary of State for Work and Pensions  EWHC 978 (Admin),  3 All ER 994, para 52,  EWCA Civ 797,  3 All ER 577, paras 56-61, Ghaidan v Godin-Mendoza  UKHL 30,  3 WLR 113, paras 133-134 and R(S) v Chief Constable of the South Yorkshire Police  UKHL 39,  1 WLR 2196. As expressed in para 42 of this last case the questions are: