A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
124. To tell a man that he is to be incarcerated for a fixed period is one thing. To tell him that he is to be incarcerated for a period that has no end in sight is quite another. And the longer the time the incarceration will last with no end in sight the worse it is. The gravity of this interference leads inevitably to the question posed by article 15(1) which is whether, if this is the nature of the emergency, the derogation is strictly required to deal with it. This raises the further question whether there is some other way of dealing with the emergency which will not be incompatible with the Convention rights. If there is some other way of dealing with it that will meet this test, the prolonged and indefinite detention without trial of those affected by the Derogation Order cannot be said to be what the exigencies of the situation strictly require.
125. Mr Whalley said in para 18 of his second witness statement that consideration was given at the time of the decision to derogate, and again at the time of the review on 18 June 2002, to the issue whether it would be appropriate to introduce a power of detention covering both British nationals and foreign nationals, but that it had been concluded that there were significant differences between these two categories. In para 19 he said that it was considered by the Secretary of State that the serious threats to the nation emanated predominantly (albeit not exclusively) and more immediately from the category of foreign nationals. In para 20 he acknowledged that a person removed to another country could re-engage in terrorist activity and might continue to be involved in acts of terrorism or the organisation of such acts from the country to which he was removed and that those acts might be directed against the United Kingdom. But he said that there was evidence to suggest, and that the Security Service so advised, that the steps which had been taken in the United Kingdom since 11 September 2001, including the measures under challenge, had had a significant effect in making it more difficult to operate here. In para 21 he said that one of the adverse effects arising from the continuing and unrestricted presence in the United Kingdom of suspected terrorists who could not be removed to third countries was the perception in other countries, particularly Muslim countries, that the United Kingdom was weak in its response to international terrorists operating in this country.
126. I do not question this assessment. But there is a difference between a course of action that is obviously desirable and a course of action that is strictly required. Article 15(1) does not permit derogation unless the test of what is strictly required is satisfied. It is acknowledged that there are some British nationals who are thought also to present a threat to the life of the nation because they too are suspected of involvement in international terrorism. The Attorney General accepted that there may be others whom the powers in sections 22 and 23 cannot touch because, although they are not British nationals, they have a right to remain in this country. These include people whom, although suspected of involvement in international terrorism, the government is unable or unwilling to prosecute. They too cannot be removed to third countries. Yet it was decided not to introduce measures for their detention. In their case such measures, it must be assumed, were not thought to be strictly required by the exigencies of the situation that had been identified. If the threat was such that their detention was strictly required, a measure would have had to be introduced to provide for this. But that step has not been taken.
127. Mr Whalley does not explain in either of his two witness statements what is being done to counter the threat from those in this country not covered by sections 21 to 23 who present the same threat as the foreign nationals. He does not say that the threat from them was regarded as insignificant. Nor does he explain why it was considered acceptable to permit those who could do so to go to France or Morocco where, as no action was taken to prevent this, they would be free to continue their activities. SIAC said in para 95 of its judgment that the evidence which was before it demonstrated beyond argument that the threat was not confined to aliens who have no right to be here and that there were many British nationals at liberty in the United Kingdom who could, like the appellants, be defined as suspected international terrorists. It had the benefit of seeing the "closed material" and of hearing submissions on it, as well as the material in the Open Generic Statements which contain numerous references to the activities of British nationals. The Attorney General accepted that it was not being said that the threat from those who were at liberty in the United Kingdom was de minimis. He said that their right was of a different kind from that of foreign nationals, so the balance was being struck differently in their case.
128. The point that Mr Whalley makes is that the threat from those who are at liberty is less immediate. But he draws no distinction between these two groups as regards the extent to which they are in touch with terrorist organisations or as regards other aspects of their activities. I infer that the problem which was thought to be in need of being addressed in the case of foreign nationals immediately, and was capable of being so addressed, was the perception in some countries that the United Kingdom was a safe option. This was because it could encourage terrorists to travel to this country, thus reducing its ability with its allies to tackle the threat from them: Mr Whalley's first witness statement, para 20. As the Attorney General put it, the threat is an international one. It had been judged at the highest level that it was necessary to persuade other countries how they should respond to it. Setting an example to other countries, and dispelling the idea that this country was a safe haven for terrorists, was a legitimate aim in view of the nature of the emergency. But the question is whether, applying the test of what was strictly required, the means chosen were proportionate.
129. The Attorney General, for understandable reasons, was not willing to elaborate on the measures that were being taken to contain the threat to the life of this nation from British nationals. But he said that a number of measures were in place for the protection of the public, and that those involved were being prosecuted where possible. He explained that any response which provided for the indefinite detention of those people would have had to have been a different response, as they were not subject to immigration control. The distinction which was drawn between their case and that of the foreign nationals was that the foreign nationals had no right to be here. For British nationals the measure would have had to have provided for a form of detention that had four walls. It would have had to have been more draconian. But that answer, while true, does not meet the objection that the indefinite detention without trial of foreign nationals cannot be said to be strictly required to meet the exigencies of the situation, if the indefinite detention without trial of those who present a threat to the life of the nation because they are suspected of involvement in international terrorism is not thought to be required in the case of British nationals.
130. SIAC dealt with this issue in paras 37 to 45 of its judgment  HRLR 1274. The standard of scrutiny that it set for itself in para 43 was that described by the European Court in Ireland v United Kingdom (1978) 2 EHRR 25, 95, at para 214. The court said that it was not its function to substitute for the British Government's assessment any other assessment of what might be the most prudent or most expedient policy to combat terrorism. It also drew guidance from the judgment in the Supreme Court of Canada of McLachlin J in RJR-MacDonald Inc v Attorney General of Canada  3 SCR 199, 342, para 160 where she said that the law must be carefully tailored so that rights are impaired no more than necessary, but that the tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator.
131. In my opinion SIAC fell into an error of law at this point. These references set too low a standard for the scrutiny that the national court must carry out in order to test the proposition that the derogation is strictly necessary. When the European Court talks about affording a margin of appreciation to the assessment of the British Government it assumes that its assessment will at the national level receive closer scrutiny. As I said earlier, the fact that the European Court will accord a large margin of appreciation to the contracting states on the question whether the measures taken do not exceed those strictly required by the exigencies of the situation cannot be taken as the last word on the matter so far as the domestic courts are concerned. That is especially so in this case, as section 30 of the 2001 Act itself recognises that the derogation may be reviewed by the judiciary. McLachlin J's description of the approach which is taken to the scrutiny of legislation by the Supreme Court of Canada does not fit the precise wording of article 15(1) as to the standard that must be achieved by the derogation. As Brooke LJ in the Court of Appeal  QB 335, 373, para 94 observed, it is much safer to rely on the jurisprudence surrounding the convention that we are currently interpreting if there is any significant difference in the language being construed.
132. I would hold that the indefinite detention of foreign nationals without trial has not been shown to be strictly required, as the same threat from British nationals whom the government is unable or unwilling to prosecute is being met by other measures which do not require them to be detained indefinitely without trial. The distinction which the government seeks to draw between these two groups - British nationals and foreign nationals - raises an issue of discrimination. But, as the distinction is irrational, it goes to the heart of the issue about proportionality also. It proceeds on the misconception that it is a sufficient answer to the question whether the derogation is strictly required that the two groups have different rights in the immigration context. So they do. But the derogation is from the right to liberty. The right to liberty is the same for each group. If derogation is not strictly required in the case of one group, it cannot be strictly required in the case of the other group that presents the same threat.
133. As Mr Pannick QC put it for Liberty, section 23 of the 2001 Act is not rationally connected to the legislative objective. If the threat is as potent as the Secretary of State suggests, it is absurd to confine the measures intended to deal with it so that they do not apply to British nationals, however strong the suspicion and however grave the damage it is feared they may cause. There is also the point that foreign nationals who present the same threat are permitted, if they can safely do so, to leave this country at any time. Here too there is a clear indication that the indefinite detention of those who remain here as a means of countering the same threat is disproportionate.
134. I said earlier that it would be a serious error to regard the right to control immigration as decisive of the discrimination issue in this case. This was because the issue which the Derogation Order was designed to address was not at its heart an immigration issue. Yet the Attorney General insisted that the relevant comparators for the purposes of the discrimination issue were other aliens, not British nationals who present the same threat. He said that nationals and aliens are in a different position so far as concerns their right to be in the country, so it was legitimate for a contracting state to assess that their respective positions in the present context were not similar: Moustaquim v Belgium (1991) 13 EHRR 802, 815-816, paras 48, 49. It was well recognised both in international law and under the European Convention that each state has the right to control immigration into its territory, and this right extended to the right of extradition and to detention when this was required on grounds of national security: Nishimura Ekiu v United States (1892) 142 US 651, 659; Goodwin-Gill, "International Law and the Detention of Refugees and Asylum Seekers" (1986) 20 International Migration Rev 193, 196-202; Chahal v United Kingdom (1996) 23 EHRR 413, 454-455, para 73. So in assessing the legitimacy of different treatment as between aliens and nationals it was relevant to be informed about the principles which normally prevail in democratic societies and about what these societies actually do as a matter of practice: Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, 284, para 10. Materials outside the European Convention itself were relevant to this assessment. This point lay at the heart of his argument.
135. The proviso to article 15(1) states that the measures that are taken by a High Contracting Party under that article must not be inconsistent with its other obligations under international law. What those obligations are depends, of course, on the context and on the obligations under the Convention from which the High Contracting Party seeks to derogate. Article 4 (1) of the International Covenant on Civil and Political Rights, which permits derogation in time of public emergency, is in almost identical terms. But it contains the additional proviso that such measures do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
136. The issue is whether it is permissible for the state to discriminate between aliens and its own nationals as regards their article 5 Convention right to liberty. Article 14 of the Convention provides that the enjoyment of the rights and freedoms which it sets forth shall be secured without discrimination on any ground such as, inter alia, national origins: see also article 26 of the International Covenant on Civil and Political Rights which prohibits any discrimination and guarantees to all persons equal and effective protection against discrimination on any ground such as national or social origin. The discipline which these provisions inject, and which article 4(1) of the International Covenant also recognises, is a vital part of international human rights law. A state is not permitted to discriminate against an unpopular minority for the good of the majority. If it was a sufficient answer to those who rely on article 14 of the Convention to say that it was permissible under international law for the state to discriminate between aliens and its own nationals on the grounds of national security, there would be no need for the state to derogate from its obligations under article 5 in the case of aliens. But it is conceded, rightly, that derogation from article 5 is necessary if the appellants are to be detained indefinitely.
137. This concession acknowledges that the right of contracting states to treat aliens differently from their own nationals is subject to their obligations under international human rights law. In our case the state's obligations under the European Convention form part of its international obligations. Oppenheim's International Law, 9th ed (1992), vol 1, pp 909-910, para 404 states:
In Chahal v United Kingdom (1996) 23 EHRR 413, 457, para 80 the European Court said that the protection afforded by article 3 of the Convention against ill-treatment was wider than that provided by articles 32 and 33 of the United Nations 1951 Convention relating to the Status of Refugees under which states are permitted to expel aliens on the grounds of national security. The assertion in this judgment of the primacy of the state's obligations under the European Convention must be understood as extending to the protections afforded by article 5 and by article14 also.
138. The question then depends on the precise circumstances in which the contracting state seeks to treat aliens and British nationals differently. If immigration control was the issue in this case, as the Attorney General submits, the argument that the state was entitled to treat these two groups differently would appear to be unanswerable. The same would be so if there were national security grounds for treating them differently in their enjoyment of the right to liberty. But that is not this case. It is not disputed that a significant threat to national security comes from a significant number of British nationals. It must follow, in my opinion, that the treatment which is afforded to aliens who present a threat to national security is to be compared with the treatment that is afforded to British nationals who present the same threat. SIAC said that the derogation could not fail to be regarded as other than discriminatory on grounds of national origin:  HRLR 1274, para 95. Having studied the open material that is before us, I think that the conclusion that the derogation is discriminatory is inescapable.
139. I too would allow the appeals. I would quash the Human Rights Act 1998 (Designated Derogation) Order 2001. I would declare that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with the right to liberty in article 5 of the European Convention on Human Rights on the ground that it is not proportionate, and that it is incompatible with article 14 of the Convention on the ground that it discriminates against the appellants in their enjoyment of the right to liberty on the ground of their national origin.
LORD SCOTT OF FOSCOTE
140. I gratefully adopt my noble and learned friend Lord Bingham of Cornhill's description of the factual and statutory background to these appeals and his exposition of the relevant authorities. I am in complete agreement with the conclusions he has reached and wish to add only a few observations of my own.
141. The issue in these appeals is not whether the indefinite executive detention of these appellants under section 23 of the Anti-terrorism, Crime and Security Act 2001 ("the 2001 Act") is lawful. The merits of the case against each appellant allegedly justifying his detention has not been argued in these proceedings. That issue is for another day and other proceedings and may well come before your Lordships in due course. It is possible that in those proceedings it will be held in relation to one or some or all of the appellants that his or their detention was not justified and was therefore unlawful. But that issue is not before your Lordships now.
142. It has not been suggested, nor could it be suggested, that the 2001 Act is otherwise than an effective enactment made by a sovereign legislature. It was passed by both Houses of Parliament and received the Royal Assent. Whether the terms of the 2001 Act are consistent with the terms of the European Convention on Human Rights ("the ECHR") is, so far as the courts of this country are concerned, relevant only to the question whether a declaration of incompatibility under section 4 of the Human Rights Act 1998 should be made. The making of such a declaration will not, however, affect in the least the validity under domestic law of the impugned statutory provision. The import of such a declaration is political not legal.
143. So what is the point of these proceedings and these appeals, with nine of your Lordships sitting in judgment, with intervention from the National Council of Civil Liberties and from Amnesty International and with avid attention from the media? An answer might be that the object of the proceedings is to obtain a court order quashing the Human Rights Act 1998 (Designated Derogation) Order 2001 ("the Order"), whereby the United Kingdom, purporting to act in pursuance of article 15 of the ECHR, announced its intention to derogate from article 5(1) of the ECHR by enacting Part 4 of the 2001 Act. The Special Immigration Appeals Commission ("SIAC") did quash the Order and made a declaration of incompatibility of Part 4 with the ECHR. The Court of Appeal disagreed. It set aside the quashing of the Order and the declaration of incompatibility. Your Lordships are asked to reinstate the quashing order and the declaration of incompatibility.
144. The effect, my Lords, of all this on the lawfulness under domestic law of the incarceration of the appellants is nil. A challenge to the lawfulness of their incarceration requires a challenge to be made to the exercise by the Home Secretary of the statutory powers conferred on him by section 23 of the 2001 Act. That challenge is not made in these proceedings. The SIAC judgment (delivered by Collins J), and your Lordships' opinions if these appeals succeed, may show that the enactment of Part 4 of the 2001 Act represented a breach of the United Kingdom's treaty obligations under the ECHR but will not show that the detention of the appellants is unlawful under domestic law. The ECHR is not part of domestic law except to the extent that it has become so under the 1998 Act. The 1998 Act did not entrench the articles of the ECHR so as to bar Parliament from subsequently enacting legislation inconsistent with those articles. Parliament can, if it wishes to do so, enact such legislation. The courts, whose duty it is to construe and apply Parliamentary enactments, will not readily assume that Parliament has intended the inconsistency. But if the statutory language is clear, and a fortiori if, as here, Parliament has expressed its intention to enact a provision inconsistent with the ECHR article in question, the courts must apply and give effect to the statutory language notwithstanding the inconsistency. The statutory provision may represent a breach by the United Kingdom of its treaty obligations under the ECHR but will nonetheless constitute valid and enforceable legislation. The 1998 Act did not, and could not, deprive Parliament of its power to legislate inconsistently with the ECHR.
145. The normal and proper function of the courts of this country is to adjudicate on the rights and liabilities under domestic law of citizens (or of institutions with legal personality) or to adjudicate on the validity of executive actions or omissions that may affect those rights and liabilities. It is not, normally, the function of the courts to entertain proceedings the purpose of which is to obtain a ruling as to whether an Act of Parliament is compatible with an international treaty obligation entered into by the executive. The executive cannot make laws for the United Kingdom otherwise than pursuant to and within the constraints imposed by an enabling Act of Parliament. The executive has extensive and varied prerogative powers that it can exercise in the name of the Crown but none that permit lawmaking. In being asked, therefore, to perform the function to which I have referred, the courts are, it seems to me, being asked to perform a function the consequences of which will be essentially political in character rather than legal. A ruling that an Act of Parliament is incompatible with the ECHR does not detract from the validity of the Act. It does not relieve citizens from the burdens imposed by the Act. It provides, of course, ammunition to those who disapprove of the Act and desire to agitate for its amendment or repeal. This is not a function that the courts have sought for themselves. It is a function that has been thrust on the courts by the 1998 Act.
The 1998 Act
146. Section 1 of the 1998 Act defined as "the Convention rights" a number of specified articles of the ECHR and enacted that -
Article 5 was one of the specified articles but article 15 of the ECHR, entitled "Derogation in time of emergency" (the text of which is set out in para 10 of the opinion delivered by my noble and learned friend Lord Bingham of Cornhill) was not. Unlike the specified articles article 15 did not, therefore, become part of our domestic law. It remained, and remains, no more than an article in a treaty to which the United Kingdom, by act of the executive, adheres.
147. Section 3(1) of the 1998 Act says that
but subsection (2)(b) makes clear that the section
and section 4(2) says that if a court comes to the conclusion that a provision of primary legislation is not compatible with a Convention right, the court "may make a declaration of that incompatibility". The section does not identify the intended purpose of the declaration. It is, presumably, intended that the declaration will draw public attention to the incompatibility.
148. Section 14 of the 1998 Act deals with designated derogations. These include
And subsection (6) says that
So the Secretary of State may make an order declaring in advance that the United Kingdom is proposing to enact legislation that is inconsistent with a Convention right. Section 14 does not so state but it is beyond argument that the validity under domestic law of the legislation once enacted is not dependent on there having been a derogation order. With or without a derogation order Parliament can enact legislation inconsistent with a Convention right provided that the statutory language makes clear the Parliamentary intention to do so.
149. It is noteworthy that section 14 makes no reference to article 15 of the ECHR. Article 15 describes the circumstances in which signatories to the Convention may derogate from their obligations under the Convention and bring into effect measures inconsistent with the Convention. This may only be done
These article 15 limitations on the power to derogate are not incorporated into section 14 of the 1998 Act. Indeed, section 14 prescribes no limitations of any sort on the Secretary of State's power to make a designated derogation order.