(back to preceding text)
51. It is plain that the facts fall within the ambit of article 5. That is why the United Kingdom thought it necessary to derogate. The Attorney General reserved the right to argue in another place at another time that it was not necessary to derogate, but he accepted for the purpose of these proceedings that it was. The appellants were treated differently from both suspected international terrorists who were not UK nationals but could be removed and also from suspected international terrorists who were UK-nationals and could not be removed. There can be no doubt but that the difference of treatment was on grounds of nationality or immigration status (one of the proscribed grounds under article 14). The problem has been treated as an immigration problem.
52. The Attorney General submitted that the position of the appellants should be compared with that of non-UK nationals who represented a threat to the security of the UK but who could be removed to their own or to safe third countries. The relevant difference between them and the appellants was that the appellants could not be removed. A difference of treatment of the two groups was accordingly justified and it was reasonable and necessary to detain the appellants. By contrast, the appellants' chosen comparators were suspected international terrorists who were UK nationals. The appellants pointed out that they shared with this group the important characteristics (a) of being suspected international terrorists and (b) of being irremovable from the United Kingdom. Since these were the relevant characteristics for purposes of the comparison, it was unlawfully discriminatory to detain non-UK nationals while leaving UK nationals at large.
53. Were suspected international terrorists who were UK nationals, the appellants' chosen comparators, in a relevantly analogous situation to the appellants? The question, as posed by Laws LJ in R (Carson) v Secretary of State for Work and Pensions  3 All ER 577, para 61, is whether the circumstances of X and Y are so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X. The Court of Appeal thought not because (per Lord Woolf, para 56) "the nationals have a right of abode in this jurisdiction but the aliens only have a right not to be removed". This is, however, to accept the correctness of the Secretary of State's choice of immigration control as a means to address the Al-Qaeda security problem, when the correctness of that choice is the issue to be resolved. In my opinion, the question demands an affirmative answer. Suspected international terrorists who are UK nationals are in a situation analogous with the appellants because, in the present context, they share the most relevant characteristics of the appellants.
54. Following the guidance given in the Belgian Linguistic Case (No 2) (see para 50 above) it is then necessary to assess the justification of the differential treatment of non-UK nationals "in relation to the aim and effects of the measure under consideration". The undoubted aim of the relevant measure, section 23 of the 2001 Act, was to protect the UK against the risk of Al-Qaeda terrorism. As noted above (para 32) that risk was thought to be presented mainly by non-UK nationals but also and to a significant extent by UK nationals also. The effect of the measure was to permit the former to be deprived of their liberty but not the latter. The appellants were treated differently because of their nationality or immigration status. The comparison contended for by the Attorney General might be reasonable and justified in an immigration context, but cannot in my opinion be so in a security context, since the threat presented by suspected international terrorists did not depend on their nationality or immigration status. It is noteworthy that in Ireland v United Kingdom (1978) 2 EHRR 25 the European Court was considering legislative provisions which were, unlike section 23, neutral in their terms, in that they provided for internment of loyalist as well as republican terrorists. Even so, the Court was gravely exercised whether the application of the measures had been even handed as between the two groups of terrorists. It seems very unlikely that the measures could have been successfully defended had they only been capable of application to republican terrorists, unless it were shown that they alone presented a threat.
55. The Attorney General also made a more far-reaching submission. He relied on the old-established rule that a sovereign state may control the entry of aliens into its territory and their expulsion from it. He submitted that the Convention permits the differential treatment of aliens as compared with nationals. He also submitted that international law sanctions the differential treatment, including detention, of aliens in times of war or public emergency.
56. In support of the first of these submissions he relied on Moustaquim v Belgium (1991) 13 EHRR 802, a case in which a Moroccan national, convicted of serious offences, was ordered to be deported. The Court rejected a complaint under article 14, holding (in para 49) that the applicant's position could not be compared with that of Belgian juveniles, since they had a right of abode in their own country and could not be expelled from it. It is indeed obvious that in an immigration context some differentiation must almost inevitably be made between nationals and non-nationals since the former have a right of abode and the latter do not. Further examples may be found in Agee v United Kingdom (1976) 7 DR 164 and Maaouia v France (2000) 33 EHRR 1037. The Convention recognises in article 5(1)(f) that a non-national may be lawfully detained pending deportation, and that is a position in which a national could never find himself. The question is whether and to what extent states may differentiate outside the immigration context.
57. In Resolution 1271 adopted on 24 January 2002, the Parliamentary Assembly of the Council of Europe held that "The combat against terrorism must be carried out in compliance with national and international law and respecting human rights". The Committee of Ministers of the Council of Europe on 11 July 2002 adopted "Guidelines on human rights and the fight against terrorism". These recognised the obligation to take effective measures against terrorism, but continued:
"All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment
Restrictions of human rights must be necessary and proportionate. The Commissioner for Human Rights in Opinion 1/2002 (28 August 2002, para 40) observed, with reference to the 2001 Act:
"In so far as these measures are applicable only to non-deportable foreigners, they might appear, moreover, to be ushering in a two-track justice, whereby different human rights standards apply to foreigners and nationals."
In its General Policy Recommendations published on 8 June 2004, the European Commission against Racism and Intolerance, a Council of Europe body, considered it the duty of the state to fight against terrorism; stressed that the response should not itself encroach on the values of freedom, democracy, justice, the rule of law, human rights and humanitarian law; stressed that the fight against terrorism should not become a pretext under which racial discrimination was allowed to flourish; noted that the fight against terrorism since 11 September 2001 had in some cases resulted in the adoption of discriminatory legislation, notably on grounds of nationality, national or ethnic origin and religion; stressed the responsibility of member states to ensure that the fight against terrorism did not have a negative impact on any minority group; and recommended them
"to review legislation and regulations adopted in connection with the fight against terrorism to ensure that these do not discriminate directly or indirectly against persons or group of persons, notably on grounds of 'race', colour, language, religion, nationality or national or ethnic origin, and to abrogate any such discriminatory legislation."
58. The Universal Declaration of Human Rights 1948 affirmed, in articles 1 and 2, the general principles of equality and non-discrimination. On 13 December 1985 the General Assembly of the United Nations made a Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live. This declaration recognised (article 2) that states might establish differences between nationals and aliens but required that laws and regulations should not be incompatible with the international legal obligations of the state, including those in the field of human rights. Aliens should enjoy (article 5) "in accordance with domestic law and subject to the relevant international obligations of the state in which they are present" the right not to be deprived of liberty except on such grounds and in accordance with such procedures as are established by law and the right to be equal before the courts.
59. The Human Rights Committee is the United Nations body charged with interpretation of the ICCPR and adjudication of questions arising under it. In General Comment No 15, adopted in 1986, the Committee ruled:
"1. Reports from States parties have often failed to take into account that each State party must ensure the rights in the Covenant to 'all individuals within its territory and subject to its jurisdiction' (art. 2, para. 1). In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.
2. Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens alike. Exceptionally, some of the rights recognized in the Covenant are expressly applicable only to citizens (art. 25), while article 13 applies only to aliens. However, the Committee's experience in examining reports shows that in a number of countries other rights that aliens should enjoy under the Covenant are denied to them or are subject to limitations that cannot always be justified under the Covenant."
The Committee went on to rule, in para 7, that "Aliens have the full right to liberty and security of the person" and that "Aliens are entitled to equal protection by the law".
60. Article 4 of the ICCPR, which permits derogation, contains two conditions found in article 15 of the European Convention ("to the extent strictly required by the exigencies of the situation" and "provided that such measures are not inconsistent with their other obligations under international law") and one that is not expressly found ("and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin"). In General Comment No 29, adopted on 24 July 2001 (and therefore before the events of 11 September) the Human Rights Committee considered article 4 and article 26 (non-discrimination) of the ICCPR. The Committee said:
"8. According to article 4, paragraph 1, one of the conditions for the justifiability of any derogation from the Covenant is that the measures taken do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Even though article 26 or the other Covenant provisions related to non-discrimination (articles 2, 3, 14, paragraph 1, 23, paragraph 4, 24, paragraph 1, and 25) have not been listed among the non-derogable provisions in article 4, paragraph 2, there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances. In particular, this provision of article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant."
61. The Security Council of the United Nations, in Resolution 1456 adopted on 20 January 2003, required that
"6. States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law."
The UN Commission on Human Rights published on 26 May 2003 a report which quoted General Comment No 15 (para 58 above) and stated:
"The architecture of international human rights law is built on the premise that all persons, by virtue of their essential humanity, should enjoy all human rights unless exceptional distinctions, for example, between citizens and non-citizens, serve a legitimate State objective and are proportional to the achievement of that objective."
62. The International Convention on the Elimination of All Forms of Racial Discrimination 1966 provided, in article 1 (so far as relevant):
"1. In this Convention, the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.
3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved."
This might be understood to remove discriminatory treatment of non-citizens from the scope of the Convention. But the Committee established under article 8 to supervise and report on the implementation of the Convention has made plain that it does not sanction such discrimination. In General Recommendation XI adopted in 1993 it stated:
"3. The Committee further affirms that article 1, paragraph 2, must not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in other instruments, especially the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights."
In General Recommendation 14, adopted in the same year, the Committee asserted (para 1):
"Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic principle in the protection of human rights."
It continued, in para 2:
"2. The Committee observes that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4, of the Convention. In considering the criteria that may have been employed, the Committee will acknowledge that particular actions may have varied purposes. In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin."
The Committee gave special attention to the United Kingdom, and in its Concluding Observations on the United Kingdom (10 December 2003, CERD/C/63/CO/11), in para 17, said:
"17. The Committee is deeply concerned about provisions of the Anti-Terrorism Crime and Security Act which provide for the indefinite detention without charge or trial, pending deportation, of non-nationals of the United Kingdom who are suspected of terrorism-related activities.
While acknowledging the State party's national security concerns, the Committee recommends that the State party seek to balance those concerns with the protection of human rights and its international legal obligations. In this regard, the Committee draws the State party's attention to its statement of 8 March 2002 in which it underlines the obligation of States to 'ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent, or national or ethnic origin.'"
The Committee returned to this subject at its 64th session in February-March 2004, when it adopted General Recommendation 30, entitled "Discrimination against non-citizens." The Committee there defined the responsibilities of states parties to the Convention in these terms:
"1. Article 1, paragraph 1, of the Convention defines racial discrimination. Article 1, paragraph 2, provides for the possibility of differentiating between citizens and non-citizens. Article 1, paragraph 3 declares that, concerning nationality, citizenship or naturalization, the legal provisions of States parties must not discriminate against any particular nationality;
2. Article 1, paragraph 2, must be construed so as to avoid undermining the basic prohibition of discrimination; hence, it should not be interpreted to detract in any way from the rights and freedoms recognised and enunciated in particular in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights;
3. Article 5 of the Convention incorporates the obligation of States parties to prohibit and eliminate racial discrimination in the enjoyment of civil, political, economic, social and cultural rights. Although some of these rights, such as the right to participate in elections, to vote and to stand for election, may be confined to citizens, human rights are, in principle, to be enjoyed by all persons. States parties are under an obligation to guarantee equality between citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law;
4. Under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim. Differentiation within the scope of article 1, paragraph 4, of the Convention relating to special measures is not considered discriminatory;"
It went on to recommend (paras 10 and 20) that states should:
"10. Ensure that any measures taken in the fight against terrorism do not discriminate, in purpose or effect, on the grounds of race, colour, descent, or national or ethnic origin and that non-citizens are not subjected to racial or ethnic profiling or stereotyping.
20. Ensure that non-citizens detained or arrested in the fight against terrorism are properly protected by domestic law that complies with international human rights, refugee and humanitarian law."
63. The materials I have cited are not legally binding on the United Kingdom. But there is no European or other authority to support the Attorney General's submission. On the other hand, the Council of Europe is the body to which the states parties to the European Convention belong. The Attorney General in his written case accepted that article 14 of the European Convention and article 26 of the ICCPR are to the same effect. And the United Kingdom has ratified the Convention on the Elimination of Racial Discrimination. These materials are inimical to the submission that a state may lawfully discriminate against foreign nationals by detaining them but not nationals presenting the same threat in a time of public emergency. In the "Paris Minimum Standards of Human Rights Norms in a State of Emergency" (1985) 79 AJIL 1072, 1074, the International Law Association, considering both article 4 of the ICCPR and article 15 of the European Convention, concluded:
"2. The power to take derogatory measures as aforesaid is subject to five general conditions:
(b) Such measures must be strictly proportionate to the exigencies of the situation.
(c) Such measures must not be inconsistent with the other obligations of the state under international law.
(d) Such measures must not involve any discrimination solely on the ground of race, colour, sex, language, religion, nationality or social origin."
64. The Newton Committee, in para 194 of its Report, observed:
"There are also arguments of principle against having discriminatory provisions with which we have a good deal of sympathy, but it is the arguments of limited efficacy in addressing the terrorist threat that weigh most heavily with us."
In his discussion paper published in response to the Newton Report ("Counter-Terrorism Powers" - see para 43 above) the Secretary of State said:
"36. Secondly Lord Newton proposed that new legislation should apply equally to all nationalities including British citizens. The Government believes it is defensible to distinguish between foreign nationals and our own citizens and reflects their different rights and responsibilities. Immigration powers and the possibility of deportation could not apply to British citizens. While it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The Government believes that such draconian powers would be difficult to justify. Experience has demonstrated the dangers of such an approach and the damage it can do to community cohesion and thus to the support from all parts of the public that is so essential to countering the terrorist threat."
65. In its Second Report of the Session 2001-2002, drawn up very shortly after publication of the Bill which became the 2001 Act, the Joint Committee expressed concern at the potentially discriminatory effect of the proposed measure. In paras 38-39 it said:
"38. Second, by relying on immigration legislation to provide for the detention of suspected international terrorists, the Bill risks discriminating, in the authorization of detention without charge, between those suspected international terrorists who are subject to immigration control and those who have an unconditional right to remain in the United Kingdom. We are concerned that this might lead to discrimination in the enjoyment of the right to liberty on the ground of nationality. If that could not be shown to have an objective, rational and proportionate justification, it might lead to actions which would be incompatible with Article 5 of the ECHR either taken alone or in combination with the right to be free of discrimination in the enjoyment of Convention rights under Article 14 of the ECHR. It could also lead to violations of the right to be free of discrimination under Article 26 and the right to liberty under Article 9 of the ICCPR.
39. We raised this matter with the Home Secretary in oral evidence. Having considered his response, we are not persuaded that the risk of discrimination on the ground of nationality in the provisions of Part 4 of the Bill has been sufficiently taken on board."
In para 32 of its Fifth Report of the Session 2002-2003 (24 February 2003, HL paper 59, HC 462), following the Court of Appeal's decision in these proceedings, the Joint Committee observed that the Government might have to review its position on discrimination in the light of any further decision. In its Sixth Report of the Session 2003-2004 (23 February 2004), HL paper 38, HC 381, para 35, the Joint Committee expressed deep concern "about the human rights implications of making the detention power an aspect of immigration law rather than anti-terrorism law" and warned of "a significant risk that Part 4 violates the right to be free of discrimination under ECHR Article 14." Following the Report of the Newton Committee and the Secretary of State's discussion paper published in response to it, the Joint Committee returned to this subject in its Eighteenth Report of the Session 2003-2004 (21 July 2004), HL paper 158, HC 713, paras 42-44:
"42. The discussion paper rejects the Newton Report's recommendation that new legislation replacing Part 4 ATCSA 2001 should apply equally to all nationalities including British citizens. It states the Government's belief that it is defensible to distinguish between foreign nationals and UK nationals because of their different rights and responsibilities.
43. We have consistently expressed our concern that the provisions of Part 4 ATCSA unjustifiably discriminate on grounds of nationality and are therefore in breach of Article 14 ECHR. Along with Lord Newton, we find it extraordinary that the discussion paper asserts that seeking the same power to detain British citizens would be 'a very grave step' and that 'such draconian powers would be difficult to justify.'
44. The interests at stake for a foreign national and a UK national are the same: their fundamental right to liberty under Article 5 ECHR and related procedural rights. Article 1 of the ECHR requires States to secure the Convention rights to everyone within their jurisdiction. Article 14 requires the enjoyment of Convention rights to be secured without discrimination on the ground of nationality. The Government's explanation in its discussion paper of its reluctance to seek the same powers in relation to UK nationals appears to suggest that it regards the liberty interests of foreign nationals as less worthy of protection than exactly the same interests of UK nationals, which is impermissible under the Convention."
66. SIAC concluded that section 23 was discriminatory and so in breach of article 14 of the Convention. It ruled, in paras 94-95 of its judgment:
"94. If there is to be an effective derogation from the right to liberty enshrined in Article 5 in respect of suspected international terrorists - and we can see powerful arguments in favour of such a derogation - the derogation ought rationally to extend to all irremovable suspected international terrorists. It would properly be confined to the alien section of the population only if, as [counsel for the appellants] contends, the threat stems exclusively or almost exclusively from that alien section.
95. But the evidence before us demonstrates beyond argument that the threat is not so confined. There are many British nationals already identified - mostly in detention abroad - who fall within the definition of 'suspected international terrorists', and it was clear from the submissions made to us that in the opinion of the [Secretary of State] there are others at liberty in the United Kingdom who could be similarly defined. In those circumstances we fail to see how the derogation can be regarded as other than discriminatory on the grounds of national origin."