(back to preceding text)

    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) [1996] QB 599, 603 and In re Wasfi Suleman Mahmod [1995] 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)),

"no person shall be detained for an indefinite period of time, whether detained pending judicial investigation or trial or detained without charge; ….."

    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:

"At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight."

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 [2003] 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,

"….. the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of Contracting States."

A similar approach is found in domestic authority. 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.

    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:

"The Court would stress the importance of Article 5 in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Article 5(3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law."

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))

"stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability."

Simon Brown LJ in International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728 observed, in para 27, that

"….. the court's role under the 1998 Act is as the guardian of human rights. It cannot abdicate this responsibility."

He went on to say, in para 54:

"But judges nowadays have no alternative but to apply the Human Rights Act 1998. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts."

    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

"The courts are charged by Parliament with delineating the boundaries of a rights-based democracy" ("Judicial Deference: servility, civility or institutional capacity?" [2003] PL 592, 597)".

See also Clayton, "Judicial deference and 'democratic dialogue': the legitimacy of judicial intervention under the Human Rights Act 1998" [2004] 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:

"32.  It can be argued that as suspected international terrorists their departure for another country could amount to exporting terrorism: a point made in the Newton Report at paragraph 195. 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. (Detention in those circumstances is limited to 14 days after which the person must be either charged or released.) Deportation has the advantage moreover of disrupting the activities of the suspected terrorist."

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:

"Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

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:

"The claim to equality before the law is in a substantial sense the most fundamental of the rights of man."

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:

"I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation."

More recently, the Privy Council (per Lord Hoffmann, Matadeen v Pointu [1999] 1 AC 98, 109) observed, with reference to the principle of equality:

"Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour."

    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 [1984] 1 AC 74:

"Habeas corpus protection is often expressed as limited to 'British subjects'. Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic 'no' to the question. Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed 'the black' in Sommersett's Case (1772) 20 St. Tr. 1. There is nothing here to encourage in the case of aliens or non-patrials the implication of words excluding the judicial review our law normally accords to those whose liberty is infringed."

    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:

"However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention."

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:

"In spite of the very general wording of the French version ('sans distinction aucune'), Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised. This version must be read in the light of the more restrictive text of the English version ('without discrimination'). In addition, and in particular, one would reach absurd results were one to give Article 14 an interpretation as wide as that which the French version seems to imply. One would, in effect, be led to judge as contrary to the Convention every one of the many legal or administrative provisions which do not secure to everyone complete equality of treatment in the enjoyment of the rights and freedoms recognised. The competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions; moreover, certain legal inequalities tend only to correct factual inequalities. The extensive interpretation mentioned above cannot consequently be accepted.

It is important, then, to look for the criteria which enable a determination to be made as to whether or not a given difference in treatment, concerning of course the exercise of one of the rights and freedoms set forth, contravenes Article 14. On this question, the Court, following the principles which may be extracted from the legal practice of a large number of democratic States, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised."

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 [2002] EWCA Civ 271, [2003] 1 WLR 617, para 20, and refined in the later cases of R (Carson) v Secretary of State for Work and Pensions [2002] EWHC 978 (Admin), [2002] 3 All ER 994, para 52, [2003] EWCA Civ 797, [2003] 3 All ER 577, paras 56-61, Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 3 WLR 113, paras 133-134 and R(S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196. As expressed in para 42 of this last case the questions are:

"(1)  Do the facts fall within the ambit of one or more of the Convention rights? (2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (3) If so, was the difference in treatment on one or more of the proscribed grounds under article 14? (4) Were those others in an analogous situation? (5) Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?"