Judgments - A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)

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    150.  It seems to me somewhat of a puzzle why section 14 was necessary at all. The 1998 Act does not assume to restrict Parliament's power to enact legislation inconsistent with the ECHR. So what was the purpose of the designated derogation section? The purpose was, perhaps, simply to enable it to be made clear that the inconsistency was deliberate and not inadvertent, and thereby to constitute an aid to the courts in construing the statutory provision.

The Derogation Order 2001

    151.  The main issue that has been debated before your Lordships is whether the Order was validly made by the Secretary of State or should be quashed. It seems to have been assumed that the Order could only be upheld if it could be justified as an exercise of the article 15 power of derogation. The Attorney General expressly accepted that that must be so and did not seek to uphold the Order on the ground that whatever its status if tested by reference to article 15 it was a valid exercise by the Secretary of State of the order-making power conferred by section 14 of the 1998 Act. I have found this another puzzle because article 15 is not one of the specified articles incorporated into domestic law by the 1998 Act and is not referred to in section 14.

    152.  In the preamble to the Order the Secretary of State purported to be exercising his section 14 powers but in the Schedule to the Order, in which the proposed notification of the derogation from article 5(1) is set out, the derogation is described as an exercise of "the right of derogation conferred by article 15(1) of the Convention". For the reasons I have indicated I have difficulty in understanding how the scope of the authority conferred by section 14 to make a designated derogation order can be regarded as limited by the terms of article 15 of the ECHR. But since the Attorney General was content to argue the case on the footing that the Order did have to be justified under article 15 I will set aside my doubts and consider the case on that footing.

    153.  Was the Order compliant with article 15? Three sub-issues need to be considered. First, was there a "public emergency threatening the life of the nation"? This is the threshold criterion. If it is satisfied then, second, was the enactment of section 23 of the 2001 Act "strictly required by the exigencies of the situation"? If so then, third, was section 23 inconsistent with the United Kingdom's other obligations under international law? On these three questions I have already expressed my agreement with the conclusions expressed by Lord Bingham of Cornhill. I have also had the advantage of reading the opinions of my noble and learned friends Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Rodger of Earlsferry and Baroness Hale of Richmond and am in broad agreement with the views that they have expressed. I need add only a few comments of my own.

    Was there a public emergency threatening the life of the nation?

    154.  The Secretary of State's case that this threshold criterion has been met is based upon the horrific example of the 11 September attack on the Twin Towers in New York, on the belief that those responsible may target allies of the United States for similar atrocities (a belief given credibility by the recent attack in Madrid) and on the assertion that available intelligence indicates the reality and imminence of a comparable terrorist attack on the United Kingdom. The Secretary of State is unfortunate in the timing of the judicial examination in these proceedings of the "public emergency" that he postulates. It is certainly true that the judiciary must in general defer to the executive's assessment of what constitutes a threat to national security or to "the life of the nation". But judicial memories are no shorter than those of the public and the public have not forgotten the faulty intelligence assessments on the basis of which United Kingdom forces were sent to take part, and are still taking part, in the hostilities in Iraq. For my part I do not doubt that there is a terrorist threat to this country and I do not doubt that great vigilance is necessary, not only on the part of the security forces but also on the part of individual members of the public, to guard against terrorist attacks. But I do have very great doubt whether the "public emergency" is one that justifies the description of "threatening the life of the nation". Nonetheless, I would, for my part, be prepared to allow the Secretary of State the benefit of the doubt on this point and accept that the threshold criterion of article 15 is satisfied.

    "To the extent strictly required by the exigencies of the situation"

    155.  Section 23 constitutes, in my opinion, a derogation from article 5(1) at the extreme end of the severity spectrum. An individual who is detained under section 23 will be a person accused of no crime but a person whom the Secretary of State has certified that he "reasonably … suspects … is a terrorist" (section 21(1)). The individual may then be detained in prison indefinitely. True it is that he can leave the United Kingdom if he elects to do so but the reality in many cases will be that the only country to which he is entitled to go will be a country where he is likely to undergo torture if he does go there. He can challenge before the SIAC the reasonableness of the Secretary of State's suspicion that he is a terrorist but has no right to know the grounds on which the Secretary of State has formed that suspicion. The grounds can be made known to a special advocate appointed to represent him but the special advocate may not inform him of the grounds and, therefore, cannot take instructions from him in refutation of the allegations made against him. Indefinite imprisonment in consequence of a denunciation on grounds that are not disclosed and made by a person whose identity cannot be disclosed is the stuff of nightmares, associated whether accurately or inaccurately with France before and during the Revolution, with Soviet Russia in the Stalinist era and now associated, as a result of section 23 of the 2001 Act, with the United Kingdom. I can understand, conceptually, that the circumstances constituting the "public emergency threatening the life of the nation" might be of such an order as to justify describing section 23 as a measure "strictly required by the exigencies of the situation". But I am unable to accept that the Secretary of State has established that section 23 is "strictly required" by the public emergency. He should, at the least, in my opinion, have to show that monitoring arrangements or movement restrictions less severe that incarceration in prison would not suffice.

    156.  I have nothing to add to what my noble and learned friends have said about the United Kingdom's other obligations under international law but for the reasons given in the foregoing paragraph I conclude that the Secretary of State has failed to justify the Order as a derogation permitted by article 15.

    Article 14 - discrimination

    157.  The Order purported to derogate only from article 5(1). It did not purport to derogate from article 14 which prohibits discrimination "on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin …" etc. Detention under section 23 cannot be imposed on British nationals. It can only be invoked against immigrants who have no right of residence in this country. But a terrorist may be an immigrant or may be homegrown. The differentiation between suspected terrorists who are immigrants with no right of residence and suspected terrorists who are British nationals is, in my opinion, plainly discriminatory. The difference between the two groups, namely, that one group has the right of residence and the other group does not, seems to me to be irrelevant to the issue as to what measures are required in order to combat the threat of terrorism that their presence in this country may be thought by the Secretary of State to present.

    158.  The Secretary of State argues that measures restricted in their application to those suspected terrorists who do not have rights of residence will suffice to combat the "public emergency" and that to extend the measures to everyone who was a suspected terrorist would be to go further than was "strictly required". In my opinion, however the article 15 requirement does not justify a discriminatory distinction between different groups of people all of whom are suspected terrorists who together present the threat of terrorism and to all of whom the measures, if they really were "strictly necessary" would logically be applicable. If those who are suspected terrorists include some non-Muslims as well as Muslims, it would, in my opinion, be irrational and discriminatory to restrict the application of the measures to Muslims even though the bulk of those suspected are likely to profess to be Muslims. Some might well not be professed Muslims. Similarly, it would be irrational and discriminatory to restrict the application of the measures to men although the bulk of those suspected are likely to be male. Some might well be women. Similarly, in my opinion, it is irrational and discriminatory to restrict the application of the measures to suspected terrorists who have no right of residence in this country. Some suspected terrorists may well be home-grown.

    159.  The discriminatory character of section 23 has the result that the section is incompatible with article 14 of the ECHR. Moreover, in my opinion, the Order fails to satisfy the criteria imposed by article 15 not only on the ground that section 23 goes further than "the extent strictly required by the exigencies of the situation" but also because its discriminatory effect deprives it of the requisite proportionality.

    Conclusion

    160.  For these reasons, and those given by my noble and learned friends I conclude that the Order is not compliant with article 15 of the ECHR. I understand the Attorney General to have accepted that this conclusion would require the Order to be quashed. I venture to repeat my doubts about this. article 15 is not part of domestic law and the authority conferred by section 14 to make derogation orders is not expressed to be subject to article 15 limitations. In the circumstances, however, I too would make the Order suggested by Lord Bingham of Cornhill.

LORD RODGER OF EARLSFERRY

My Lords,

    161.  In the aftermath of the attacks on targets in the United States of America on 11 September 2001 Her Majesty's Government had to consider what steps they should take to guard against the risk of similar attacks in this country. In particular, they had to consider what should be done about suspected international terrorists living here who might be involved in plotting such attacks ("suspects"). In principle, the nationality of the suspects would be irrelevant to the threat that they posed. If a man is holding a gun at your head, it makes no difference whether he has a British or a foreign passport in his pocket. Similarly, if a network of terrorists is planning an attack on the life of the nation, the danger is the same, irrespective of the nationality of the individuals involved. So the question for ministers was how they were to counteract any risk from suspects living here, whether they were foreign or British.

    162.  In some cases the foreign suspects could be deported - though no information is available as to the number who actually were deported after the 9/11 attacks. For other foreign suspects this was not possible, since they would be exposed to inhuman or degrading treatment or punishment if sent back to their country of origin. Their deportation would therefore involve a breach of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and so was forbidden: Chahal v United Kingdom (1996) 23 EHRR 413. Even before the attacks on the United States, the Home Secretary had identified the appellants as persons he wished to deport but could not, because of article 3. One of the aims of the Government in introducing the Bill which became the Anti-terrorism, Crime and Security Act 2001 ("the 2001 Act") was to deal with foreign suspects of this kind. When section 23 came into force on 14 December 2001 it gave the Home Secretary the power to detain those foreign suspects who could not be deported. Within a matter of days all but one of the appellants had been detained. For the most part, they are still detained and are likely to remain in detention for the foreseeable future, probably at least until the power lapses at the end of 10 November 2006. By contrast, the Government did not invite Parliament to pass legislation for the detention of British suspects who, by definition, could also not be deported. They remain at liberty. Although the Attorney General declined to tell the House what was being done to counter the threat that the British suspects pose to the life of the nation, it must be assumed in the Government's favour that ministers have good grounds for being satisfied that the threat can be properly contained by using the other powers available to the police and security services. The Attorney General did not suggest that there was any obstacle to the police and security services exercising these powers in the same way in relation to foreign suspects.

    163.  For the purpose of these proceedings the Home Secretary accepts that, normally, the detention power in section 23 would violate the detained suspects' rights under article 5(1) of the Convention. Section 23 therefore purports to derogate from article 5(1). To be valid, a derogation must comply with the requirements of article 15(1):

    "In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."

There are three requirements. First, the measures must be taken in time of war or other public emergency threatening the life of the nation. Secondly, the state party may take measures derogating from its obligations only "to the extent strictly required by the exigencies of the situation." Lastly, the measures must not be inconsistent with the state's other obligations under international law.

    164.  Article 15 is not one of the articles that are reproduced in our domestic law by section 1(1) and (2) of the Human Rights Act 1998. So nothing in that Act would permit a domestic court to adjudicate on any alleged breach of it. But a derogation is given effect in domestic law by the making of a designation order under section 14(1). Under section 1(1) and (2) the order operates to restrict the effect of the Convention right in question in our domestic law. Section 30(2) and (5) of the 2001 Act provide that any derogation from article 5(1), relating to the detention of a person where there is an intention to remove or deport him from the United Kingdom, or the designation of that derogation in terms of section 14(1) of the 1998 Act, may be questioned in legal proceedings before SIAC and in an appeal from their decision. Parliament thereby conferred on those detained under the 2001 Act this special right to challenge the derogation from their article 5(1) Convention rights. If the right is to be meaningful, the judges must be intended to do more than simply rubber-stamp the decisions taken by ministers and Parliament.

    165.  I can deal briefly with the appellants' argument relating to the first requirement of a valid derogation. In December 2001 the United Kingdom was not at war. Was there, however, some other public emergency threatening the life of the nation? The appellants say not. Not without some hesitation, especially in the light of the speech of my noble and learned friend, Lord Hoffmann, I have concluded that this submission falls to be rejected. The situation in December 2001 was no less grave than other situations which the European Court of Human Rights has regarded as constituting a "public emergency threatening the life of the nation" in terms of article 15(1). For instance, in Lawless v Ireland (No 3) (1961) 1 EHRR 15, 31 - 32, para 28 the Court held that the Irish government had reasonably deduced the existence of such a state from a combination of factors:

    "in the first place, the existence in the territory of the Republic of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its purposes; secondly, the fact that this army was also operating outside the territory of the State, thus seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly the steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of 1957."

The (relatively modest) scale of the terrorist activities in question can be gauged from the summary of the facts at p 18. Similarly, in its admissibility decision in Marshall v United Kingdom, 10 July 2001, unreported, the fourth section of the Court noted that in 1998 the authorities in Northern Ireland continued to be confronted with the threat of terrorist violence, even although, by that time, its actual incidence had gone down. There had therefore been no return to normality and there was no basis for the Court to controvert the authorities' assessment of the situation in the Province in terms of the threats which organised violence posed for the life of the community and the search for a peaceful settlement. In this connexion the Court went on to recall:

    "that by reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogation necessary to avoid it...."

    166.  The unheralded attacks on the United States in September 2001 form the backdrop to the Government's decision to derogate. They were mounted by terrorists who had gained entry to the United States and had lain low, waiting for their opportunity. The attacks were on an unprecedented scale and were carried out by ruthless men who were prepared to kill themselves and any number of innocent people in pursuit of their goal. More than fifty of the victims of the attacks were British. There was good reason for the Government to think that, as the principal ally of the United States, this country was likely to be a prime target for any further similar attacks. And, in the days that followed, spokesmen for Al Qa'ida specifically linked Britain with the United States and Israel as a potential target for future attacks. The Government had access to reports from MI5 and MI6 and to the expertise of officials from those organisations in interpreting and analysing the available intelligence about the level of the threat. When examining the Government's overall assessment of the situation, the courts must bear in mind that they do not have that expertise. Mr Emmerson QC observed, rightly, that in the autumn of 2001 the Home Secretary had stated that there was no immediate intelligence pointing to a specific threat to the United Kingdom. The following spring, he had said that it would be wrong to say that the Government had evidence of a particular threat. But these statements in no way invalidate the Government's assessment that the country was facing a risk of devastating attacks at some unspecified time, against which the Government might have to take measures which would not have been considered necessary before the events of 11 September. SIAC examined all the material placed before them, including the closed material, and were satisfied that it justified the conclusion that a public emergency threatening the life of the nation existed. Like the Court of Appeal, I detect no error in SIAC's approach in reaching that conclusion, and I would accordingly accept it.

    167.  The next precondition for a valid derogation in terms of article 15(1) is that the exigencies of the situation facing the country in December 2001 "strictly required" the introduction of the power of detention in section 23. So in these proceedings the Home Secretary must show that the exigencies of the situation "strictly required" the detention of foreign suspects, even although it did not require the detention of British suspects. Unless he shows this, the derogation is not to be regarded as valid and the derogation order must be quashed.

    168.  On the facts of this particular case consideration of the second issue inevitably entails a comparison of the different ways in which foreign and British suspects have been treated. Despite what the Court of Appeal appear to have thought, however, acceptance of the appellants' argument does not necessarily involve saying that the British suspects should also have been detained. Rather, the appellants say that, in the absence of any satisfactory evidence that members of the two groups posed substantially different threats, the judgment of the Government and of Parliament, that the exigencies of the situation did not require the detention of British suspects, undermines their simultaneous judgment that it was necessary to detain those foreign suspects who could not be deported. For this purpose the disparity of treatment between the two groups is not said, in itself, to give rise to a breach of the Convention but simply to point to the conclusion that, in terms of article 15(1), the detention of the foreign suspects was not in fact strictly required. If that inference is correct, then the derogation is invalid.

    169.  The disparity of treatment comes into another argument for the appellants, however. It relates to the third requirement in article 15(1), that any measure should not be inconsistent with the United Kingdom's other obligations under international law. The appellants say that the provision for detaining only foreign suspects is not merely incompatible with article 5(1) but inconsistent with the United Kingdom's obligation under article 14 to secure to people within their jurisdiction the enjoyment of their article 5(1) rights without discrimination on the ground of national origin. Alternatively, it is inconsistent with the United Kingdom's corresponding obligations under articles 9 and 26 of the ICCPR. For this reason, the appellants submit, even if section 23 cleared both the first two hurdles in article 15(1) of the Convention, it would fall at the third.

    170.  SIAC found in the appellants' favour on that point, [2002] HRLR 1274, 1313, para 95. The Court of Appeal took the opposite view, however, on the basis that the foreign suspects who cannot be deported have, unlike British nationals, no more right to remain, only a right not to be removed, which means legally that, for the purposes of article 14, they come into a different class from those who have a right of abode: [2004] QB 335, 361 - 362, para 47 per Lord Woolf CJ.

    171.  I am, with respect, unable to accept this reasoning. It is true, of course, that no violation of article 14 occurs merely because a foreigner with no right of abode can be deported and can be detained with a view to deportation (article 5(1)(f)), whereas a national of the country concerned cannot: Moustaquim v Belgium (1991) 13 EHRR 802, 816, para 49. In this case, however, so far as the need for detention is concerned, the critical factor is not the suspects' immigration status but the threat that they are suspected of posing to the life of the nation: that is why, although the Secretary of State had previously wanted to deport the appellants, it was only after 9/11 that steps were taken to provide for their detention. In being thought to pose this kind of threat, the foreign suspects are comparable with the British suspects.

    172.  In any event, even supposing that, for the purposes of article 14, there were a distinction in terms of their immigration status which would justify detaining foreign suspects in circumstances where British suspects were not detained, the Government would still have to show that the detention of the foreign suspects was strictly required in terms of article 15(1). The Court of Appeal considered that it was - inter alia because they took the view that SIAC had made a finding of fact, which could not be overturned, that the derogation was strictly required by the exigencies of the situation: [2004] QB 335, 355, para 35 per Lord Woolf CJ; at p 373, para 91 per Brooke LJ and at p 386, para 150 per Chadwick LJ.

    173.  Unfortunately, the Court of Appeal misconstrued the decision of SIAC. It by no means constituted a finding of fact in favour of the Secretary of State which foreclosed further consideration of the issue. SIAC dealt with the matter in paras 37 - 53 of their judgment under the overall heading "Are the measures taken 'strictly required'?" Within that heading, they divided the topic into a number of compartments. In paras 41 - 45, under the sub-heading "Other measures available", SIAC rejected the appellants' arguments that detention was not strictly required because legislation could have been introduced to permit the use of telephone intercept evidence and the Terrorism Act 2000 already contained wide-ranging provisions which gave adequate protection. Under the sub-heading "Rational connexion" they then turned, in paras 46 - 53, to the appellants' various arguments that there was no rational connexion between the measures adopted and the objectives which the Government sought to attain. In paras 47 - 49 they rejected the appellants' "over-inclusiveness" argument and then, in paras 50 - 51, the "Prison with Three Walls" argument. In paras 52 and 53 SIAC referred to two "Other matters". The first was the appellants' contention that it was irrational to limit the detention powers to foreign nationals. SIAC found it convenient to consider the arguments on this issue later, in paras 79 to 96 of their judgment, along with the arguments relating to article 14. Finally, in para 53 SIAC rejected the appellants' argument that the provisions for judicial and democratic supervision in the 2001 Act were inappropriate and insufficient.

    174.  The upshot is that in paras 37 - 53 of their judgment SIAC found in favour of the Government on all of the points that they decided at that stage in regard to the question "Are the measures taken 'strictly required'?" My noble and learned friend, Lord Bingham of Cornhill, has rejected their reasons for accepting the Government's argument on one of these points, the Prison with Three Walls. But, even supposing that SIAC were right on that particular point, they still left over till later one of the other relevant points, viz the appellants' contention relating to the allegedly irrational disparity of treatment between the foreign and British suspects. And, when they came to consider that matter along with the alleged breach of article 14, in para 95 they came down in favour of the appellants. That conclusion must be read back into para 52 of SIAC's judgment in order to see how they determined the point that they had reserved. When that is done, it is clear that SIAC's ultimate conclusion was that it was irrational to limit the detention power to foreign suspects. Hence the answer to the overall question which SIAC was considering in paras 37 to 53 of their judgment was that the measures taken by the Government were not "strictly required". I return to the point in paras 186 and 187 below. Far from determining this omnibus issue in favour of the Secretary of State, therefore, they determined it against him. The real question is whether there is any proper basis for an appellate court to overturn SIAC's decision, which was based on their assessment of the evidence.

 
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