A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
67. The Court of Appeal differed from SIAC on the discrimination issue:  QB 335. Lord Woolf CJ referred (para 45) to a tension between article 15 and article 14 of the European Convention. He held (para 49) that it would be "surprising indeed" if article 14 prevented the Secretary of State from restricting his power to detain to a smaller rather than a larger group. He held (para 56) that there was objective and reasonable justification for the differential treatment of the appellants. Brooke LJ (paras 102, 132) also found good objective reasons for the Secretary of State's differentiation, although he also relied (paras 112-132) on rules of public international law. Chadwick LJ found (para 152) that since the Secretary of State had reached his judgment on what the exigencies of the situation required, his decision had to stand, and that "The decision to confine the measures to be taken to the detention of those who are subject to deportation, but who cannot (for the time being) be removed, is not a decision to discriminate against that class on the grounds of nationality" (para 153).
68. I must respectfully differ from this analysis. Article 15 requires any derogating measures to go no further than is strictly required by the exigencies of the situation and the prohibition of discrimination on grounds of nationality or immigration status has not been the subject of derogation. Article 14 remains in full force. Any discriminatory measure inevitably affects a smaller rather than a larger group, but cannot be justified on the ground that more people would be adversely affected if the measure were applied generally. What has to be justified is not the measure in issue but the difference in treatment between one person or group and another. What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another. To do so was a violation of article 14. It was also a violation of article 26 of the ICCPR and so inconsistent with the United Kingdom's other obligations under international law within the meaning of article 15 of the European Convention.
69. Brooke LJ also resolved the discrimination issue in favour of the Secretary of State in reliance on a public international law argument (see paras 112-132 of his judgment) which the Attorney General addressed to the Court of Appeal and repeated in the House. The first step in this argument was to assert the historic right of sovereign states over aliens entering or residing in their territory. Historically, this was the position: see R (European Roma Rights Centre) v Immigration Officer at Prague Airport  UKHL 55, paras 11-12. But a sovereign state may by international treaty restrict its absolute power over aliens within or seeking to enter its territory, and in recent years states have increasingly done so. The Attorney General submitted that international law sanctioned the detention of aliens in time of war or public emergency, and for this purpose drew attention to a number of instruments which it is necessary briefly to consider:
(1) The Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949. This instrument envisaged the internment of alien enemies in time of war or armed conflict. It is not suggested that the United Kingdom is, in a legal sense, at war or involved in an armed conflict, and it has no bearing on these appeals.
(2) The Geneva Convention Relating to the Status of Refugees 1951. The Attorney General submitted that article 9 of this Convention, permitting states to take provisional measures "in time of war or other grave and exceptional circumstances", was apt to cover the detention of the appellants. He referred to material supporting that interpretation: Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation (1953), pp 94-96; Grahl-Madsen, Commentary on the Refugee Convention 1951 (republished by UNHCR 1997), pp 26-29; UNHCR Executive Committee Conclusion 44 in the Report of the 37th Session (1986), "Detention of Refugees and Asylum Seekers", para (b); UNHCR Revised Guidelines on "Applicable Criteria and Standards Relating to the Detention of Asylum Seekers" (February 1999), guideline 3; Goodwin-Gill, The Refugee in International Law (2nd ed, 1996), p 247, fn 2. It is, however, permissible under article 33(2) of the Refugee Convention to return to his home country a refugee at risk of torture or inhuman treatment in that country, a course which the European Convention precludes (see para 9 above). It cannot therefore avail the Secretary of State to show that the detention of the appellants is permissible under the Refugee Convention if it is not permissible under the European Convention because it is the latter which he is said to have violated.
(3) The Convention on the Status of Stateless Persons 1954. Article 9 of this Convention corresponds to article 9 of the Refugee Convention. The same comment applies to it.
(4) The ICCPR. The Attorney General pointed out, quite correctly, that article 4(1) of the ICCPR, in requiring that a measure introduced in derogation from Covenant obligations must not discriminate, does not include nationality, national origin or "other status" among the forbidden grounds of discrimination: see Goodwin-Gill, "International Law and the Detention of Refugees and Asylum Seekers" (1986) 20 International Migration Rev 193, 199; Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary, 2nd ed (2004), p 829, para 25.61. It appears that this was deliberate: UN Doc E/CN. 4/SR. 330 (United Nations Economic and Social Council, Commission on Human Rights, Eighth Session, 313th meeting, 10 June 1952), pp 3-4. However, by article 2 of the ICCPR the states parties undertake to respect and ensure to all individuals within the territory the rights in the Covenant "without distinction of any kind, such as race .., national or social origin .. or other status". Similarly, article 26 guarantees equal protection against discrimination "on any ground such as race, .. national or social origin .. or other status". This language is broad enough to embrace nationality and immigration status. It is open to states to derogate from articles 2 and 26 but the United Kingdom has not done so. If, therefore, as I have concluded, section 23 discriminates against the appellants on grounds of their nationality or immigration status, there is a breach of articles 2 and 26 of the ICCPR and so a breach of the UK's "other obligations under international law" within the meaning of article 15 of the European Convention.
(5) The UN Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live 1985. As is apparent from the wording of this Declaration, quoted in para 58 above, it sanctions differences in the treatment of nationals and aliens only so long as they are not "incompatible with the international legal obligations of the State, including those in the field of human rights". Section 23 is incompatible with articles 5(1)(f) and 14 of the European Convention and articles 2, 9 and 26 of the ICCPR, all of which express international obligations of the United Kingdom.
(6) The EC Treaty. The Attorney General pointed out that article 39(3) of the EC Treaty is so drafted as not to encroach on member states' general right to control the entry and activity of aliens, and the 13th recital to Council Directive 2000/43/EC expressly excludes differences based on nationality from the scope of the Directive. It cannot, however, avail the Secretary of State that the United Kingdom is not in breach of the EC Treaty and this Directive if it is in breach of the European Convention.
(7) The European Convention. It was pointed out, quite correctly, that article 16 sanctions the imposition by member states of restrictions on the political activity of aliens. To that extent, as in the context of immigration, aliens are distinguishable from citizens. But there is nothing in the Convention to warrant the discriminatory detention of aliens against whom action is not being taken with a view to deportation or extradition.
(8) Reference was made to three United States authorities. In the first of these, Shaughnessy v United States, ex rel Mezei 345 US 206 (1953), the applicant was held not to be entitled to the protection of the due process clause because, although he had previously lived in the United States for some twenty five years before a nineteen month break, he was treated on his return as not having entered the country. This is not a decision which would be followed by the European Court, which in D v United Kingdom (1997) 24 EHRR 423, para 48, showed some impatience with what in Lynch v Cannatella 810 F 2d 1363 (1987), para 27, was called "the entry fiction":
In Fernandez v Wilkinson 505 F Supp 787 (1980) the alien had again not been admitted to the United States, but despite the "time-honoured legal fiction" of non-entry Judge Rogers, sitting in the US District Court for Kansas, drew on customary international law to hold that the alien could not be detained indefinitely when there was no prospect of removing him. The alien in Zadvydas v Davis 533 US 678 (2001) had been admitted to the United States and a majority of the Supreme Court held that he could not be detained indefinitely if there was no prospect of removing him. The court did not have to consider the position of aliens judged to present a terrorist risk (p 696) but might well have sanctioned indefinite detention in such circumstances given the heightened deference shown by US courts to the judgments of the political branches with respect to national security: see Chae Chan Ping v United States 130 US 581 (1889); Wilsher, "The Administrative Detention of Non-Nationals Pursuant to Immigration Control: International and Constitutional Law Perspectives" (2004) 53 ICLQ 897, 912-917. It would however seem that such a ruling would be contrary to the American Convention on Human Rights 1969. In its Report on Terrorism and Human Rights (22 October 2002), the Inter-American Commission on Human Rights stated:
US authority does not provide evidence of general international practice.
70. Neither singly nor cumulatively do these materials, in my opinion, support a conclusion other than that which I have expressed.
71. Having regard to the conclusions I have already reached, I think it unnecessary to address detailed arguments based on alleged breaches of articles 3 and 6 of the European Convention. I express no opinion on those questions, nor on a question relating to the admissibility of evidence obtained by torture which was not argued before SIAC or the Court of Appeal in the part of these proceedings which is now the subject of appeal.
72. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry and Baroness Hale of Richmond, and on all questions of substance I agree with them.
73. I would allow the appeals. There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001. There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status. The Secretary of State must pay the appellants' costs in the House and below.LORD NICHOLLS OF BIRKENHEAD
74. Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford. Wholly exceptional circumstances must exist before this extreme step can be justified.
75. The government contends that these post-9/11 days are wholly exceptional. The circumstances require and justify the indefinite detention of non-nationals suspected of being international terrorists.
76. The principal weakness in the government's case lies in the different treatment accorded to nationals and non-nationals. The extended power of detention conferred by Part 4 of the Anti-terrorism, Crime and Security Act 2001 applies only to persons who are not British citizens. It is difficult to see how the extreme circumstances, which alone would justify such detention, can exist when lesser protective steps apparently suffice in the case of British citizens suspected of being international terrorists.
77. Three years have now elapsed since the terrorist attacks of 11 September 2001. A significant number of persons suspected of terrorist involvement in this country are British citizens. In the case of these nationals the government has, apparently, felt able to counter the threat they pose by other means. Although they too present a threat to national security, in their case the government has not found it necessary to resort to the extreme step of seeking an extended power of detention comparable to that contained in the 2001 Act.
78. No satisfactory explanation has been forthcoming on this point. The government has vouchsafed no persuasive explanation of why national security calls for a power of indefinite detention in one case but not the other. Non-nationals may comprise the predominant and more immediate source of the threat to national security, but they are not the only source.
79. All courts are very much aware of the heavy burden, resting on the elected government and not the judiciary, to protect the security of this country and all who live here. All courts are acutely conscious that the government alone is able to evaluate and decide what counter-terrorism steps are needed and what steps will suffice. Courts are not equipped to make such decisions, nor are they charged with that responsibility.
80. But Parliament has charged the courts with a particular responsibility. It is a responsibility as much applicable to the 2001 Act and the Human Rights Act 1998 (Designated Derogation) Order 2001 as it is to all other legislation and ministers' decisions. The duty of the courts is to check that legislation and ministerial decisions do not overlook the human rights of persons adversely affected. In enacting legislation and reaching decisions Parliament and ministers must give due weight to fundamental rights and freedoms. For their part, when carrying out their assigned task the courts will accord to Parliament and ministers, as the primary decision-makers, an appropriate degree of latitude. The latitude will vary according to the subject matter under consideration, the importance of the human right in question, and the extent of the encroachment upon that right. The courts will intervene only when it is apparent that, in balancing the various considerations involved, the primary decision-maker must have given insufficient weight to the human rights factor.
81. In the present case I see no escape from the conclusion that Parliament must be regarded as having attached insufficient weight to the human rights of non-nationals. The subject matter of the legislation is the needs of national security. This subject matter dictates that, in the ordinary course, substantial latitude should be accorded to the legislature. But the human right in question, the right to individual liberty, is one of the most fundamental of human rights. Indefinite detention without trial wholly negates that right for an indefinite period. With one exception all the individuals currently detained have been imprisoned now for three years and there is no prospect of imminent release. It is true that those detained may at any time walk away from their place of detention if they leave this country. Their prison, it is said, has only three walls. But this freedom is more theoretical than real. This is demonstrated by the continuing presence in Belmarsh of most of those detained. They prefer to stay in prison rather than face the prospect of ill treatment in any country willing to admit them.
82. Nor is the vice of indefinite detention cured by the provision made for independent review by the Special Immigration Appeals Commission. The commission is well placed to check that the Secretary of State's powers are exercised properly. But what is in question on these appeals is the existence and width of the statutory powers, not the way they are being exercised.
83. The difficulty with according to Parliament the substantial latitude normally to be given to decisions on national security is the weakness already mentioned: security considerations have not prompted a similar negation of the right to personal liberty in the case of nationals who pose a similar security risk. The government, indeed, has expressed the view that a 'draconian' power to detain British citizens who may be involved in international terrorism 'would be difficult to justify': Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society (February 2004, Cm 6147), para 36. But, in practical terms, power to detain indefinitely is no more draconian in the case of a British citizen than in the case of a non-national. There is no significant difference in the potential adverse impact of such a power on (1) a national and (2) a non-national who in practice cannot leave the country for fear of torture abroad.
84. Part of the explanation for the difference in treatment may be that the government has misconceived the human rights of non-nationals in this situation. A prominent part of the submissions of the Attorney General was to the effect that as a matter of international law (1) states may intern non-nationals who present a threat to national security and (2) states may accord different treatment to nationals and non-nationals. This line of argument suggests that when promoting Part 4 of the 2001 Act and seeking an extended statutory power of indefinite detention the government may have regarded the human rights of non-nationals in this field as less weighty than the corresponding human rights of nationals. If that was the government's understanding, it was in my view mistaken. Unwanted aliens who cannot be deported, as much as nationals, are not to be detained indefinitely without charge or trial save in wholly exceptional circumstances.
85. Be that as it may, for the reason given earlier and the reasons stated more fully by my noble and learned friends Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Rodger of Earlsferry, I too would allow these appeals and make the order proposed by Lord Bingham of Cornhill.LORD HOFFMANN My Lords,
86. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill and I gratefully adopt his statement of the background to this case and the issues which it raises. This is one of the most important cases which the House has had to decide in recent years. It calls into question the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention. The power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial. Nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom.
87. At present, the power cannot be exercised against citizens of this country. First, it applies only to foreigners whom the Home Secretary would otherwise be able to deport. But the power to deport foreigners is extremely wide. Secondly, it requires that the Home Secretary should reasonably suspect the foreigners of a variety of activities or attitudes in connection with terrorism, including supporting a group influenced from abroad whom the Home Secretary suspects of being concerned in terrorism. If the finger of suspicion has pointed and the suspect is detained, his detention must be reviewed by the Special Immigration Appeals Commission. They can decide that there were no reasonable grounds for the Home Secretary's suspicion. But the suspect is not entitled to be told the grounds upon which he has been suspected. So he may not find it easy to explain that the suspicion is groundless. In any case, suspicion of being a supporter is one thing and proof of wrongdoing is another. Someone who has never committed any offence and has no intention of doing anything wrong may be reasonably suspected of being a supporter on the basis of some heated remarks overheard in a pub. The question in this case is whether the United Kingdom should be a country in which the police can come to such a person's house and take him away to be detained indefinitely without trial.
88. The technical issue in this appeal is whether such a power can be justified on the ground that there exists a "war or other public emergency threatening the life of the nation" within the meaning of article 15 of the European Convention on Human Rights. But I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.
89. The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the Convention, when it speaks of "war or other public emergency threatening the life of the nation", accurately states the conditions in which such legislation has previously been thought necessary.
90. Until the Human Rights Act 1998, the question of whether the threat to the nation was sufficient to justify suspension of habeas corpus or the introduction of powers of detention could not have been the subject of judicial decision. There could be no basis for questioning an Act of Parliament by court proceedings. Under the 1998 Act, the courts still cannot say that an Act of Parliament is invalid. But they can declare that it is incompatible with the human rights of persons in this country. Parliament may then choose whether to maintain the law or not. The declaration of the court enables Parliament to choose with full knowledge that the law does not accord with our constitutional traditions.
91. What is meant by "threatening the life of the nation"? The "nation" is a social organism, living in its territory (in this case, the United Kingdom) under its own form of government and subject to a system of laws which expresses its own political and moral values. When one speaks of a threat to the "life" of the nation, the word life is being used in a metaphorical sense. The life of the nation is not coterminous with the lives of its people. The nation, its institutions and values, endure through generations. In many important respects, England is the same nation as it was at the time of the first Elizabeth or the Glorious Revolution. The Armada threatened to destroy the life of the nation, not by loss of life in battle, but by subjecting English institutions to the rule of Spain and the Inquisition. The same was true of the threat posed to the United Kingdom by Nazi Germany in the Second World War. This country, more than any other in the world, has an unbroken history of living for centuries under institutions and in accordance with values which show a recognisable continuity.
92. This, I think, is the idea which the European Court of Human Rights was attempting to convey when it said (in Lawless v Ireland (No 3) (1961) 1 EHRR 15) that it must be a "threat to the organised life of the community of which the State is composed", although I find this a rather dessicated description. Nor do I find the European cases particularly helpful. All that can be taken from them is that the Strasbourg court allows a wide "margin of appreciation" to the national authorities in deciding "both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it": Ireland v United Kingdom (1978) 2 EHRR 25, at para 207. What this means is that we, as a United Kingdom court, have to decide the matter for ourselves.
93. Perhaps it is wise for the Strasbourg court to distance itself from these matters. The institutions of some countries are less firmly based than those of others. Their communities are not equally united in their loyalty to their values and system of government. I think that it was reasonable to say that terrorism in Northern Ireland threatened the life of that part of the nation and the territorial integrity of the United Kingdom as a whole. In a community riven by sectarian passions, such a campaign of violence threatened the fabric of organised society. The question is whether the threat of terrorism from Muslim extremists similarly threatens the life of the British nation.
94. The Home Secretary has adduced evidence, both open and secret, to show the existence of a threat of serious terrorist outrages. The Attorney General did not invite us to examine the secret evidence, but despite the widespread scepticism which has attached to intelligence assessments since the fiasco over Iraqi weapons of mass destruction, I am willing to accept that credible evidence of such plots exist. The events of 11 September 2001 in New York and Washington and 11 March 2003 in Madrid make it entirely likely that the threat of similar atrocities in the United Kingdom is a real one.