Case Facts
Following the Al-Qa'ida attacks in the United States on 11 September 2001, the United Kingdom government concluded that a public emergency threatening the life of the nation existed, necessitating a derogation from Article 5(1)(f) of the European Convention on Human Rights, which guarantees that no one shall be deprived of their liberty save in the lawful arrest or detention of a person against whom action is being taken with a view to deportation or extradition. Derogation was sought under Article 15 ECHR, which permits states to derogate from Convention rights in time of war or other public emergency threatening the life of the nation, to the extent strictly required by the exigencies of the situation. The Human Rights Act 1998 (Designated Derogation) Order 2001 was made accordingly.
s 23 Anti-terrorism, Crime and Security Act 2001 provided that a suspected international terrorist could be detained under provisions of the Immigration Act 1971 even where his removal or departure from the United Kingdom was prevented, whether temporarily or indefinitely, by a point of law relating to an international agreement or by a practical consideration. This measure targeted non-UK nationals only.
The appellants were all non-UK nationals who faced a real risk of torture or inhuman treatment if returned to their home countries. They could not be deported to any third country, had not been charged with any criminal offence, and had been certified by the Secretary of State as suspected international terrorists and detained under s 23 of the 2001 Act.
The appellants first challenged their detention before the Special Immigration Appeals Commission (SIAC). SIAC accepted that a public emergency threatening the life of the nation existed, but nonetheless allowed the appeals, quashed the 2001 Derogation Order, and granted a declaration of incompatibility in relation to s 23. The Secretary of State appealed to the Court of Appeal, which reversed SIAC's decision and dismissed the appellants' cross-appeals. The appellants then appealed to the House of Lords.
Held
The House of Lords allowed the appeals by a majority of 8 to 1, reversed the decision of the Court of Appeal, quashed the Human Rights Act 1998 (Designated Derogation) Order 2001, and issued a declaration of incompatibility under s 4 Human Rights Act 1998 in respect of s 23 Anti-terrorism, Crime and Security Act 2001 as incompatible with Articles 5 and 14 ECHR. The decision was reached through three distinct holdings.
First holding (8–1, Lord Hoffmann dissenting): SIAC had not misdirected itself in law on the threshold criterion for a public emergency threatening the life of the nation under Article 15 ECHR. The question of whether such an emergency existed was pre-eminently political in character, and great weight was to be given to the judgement of the Secretary of State, his colleagues, and Parliament. The appellants had shown no ground strong enough to displace the Secretary of State's determination that such a public emergency existed.
Second holding (7–1 on this point, Lord Walker dissenting): s 23 Anti-terrorism, Crime and Security Act 2001 did not rationally address the Al-Qa'ida threat and was therefore disproportionate. It did not address the threat from UK nationals at all; it permitted suspected foreign nationals to leave the United Kingdom freely and pursue activities abroad; and it permitted the detention of persons not necessarily presenting any threat to UK security as Al-Qa'ida terrorists or supporters. The measure was accordingly not "strictly required" within the meaning of Article 15 ECHR.
Third holding (8–1, Lord Walker dissenting on the grant of relief): By providing for the indefinite detention of suspected international terrorists who were not UK nationals whilst leaving equally dangerous UK nationals entirely unaffected, s 23 unlawfully discriminated against the appellants in breach of Article 14 ECHR read in conjunction with Article 5 ECHR. The appeals were allowed, the Derogation Order was quashed, and the declaration of incompatibility was granted.
Ratio Decidendi
The central ratio of this case is that an immigration measure designed to address a security threat is inherently incapable of satisfying the proportionality requirement of Article 15 ECHR where the threat it purports to address is not limited to foreign nationals. s 23 Anti-terrorism, Crime and Security Act 2001 failed the proportionality test for three interconnected reasons.
First, the measure did not address the threat from UK nationals, who were equally capable of engaging in Al-Qa'ida-related terrorism yet could not be detained under its provisions. Second, it permitted suspected foreign nationals — the very individuals it targeted — to leave the United Kingdom and continue their activities abroad, undermining the security rationale entirely. Third, it authorised the detention of persons who, whilst reasonably suspected of links to Al-Qa'ida, might harbour no hostile intentions towards the United Kingdom specifically.
The relevant comparators for the purposes of Article 14 ECHR were UK nationals suspected of international terrorism — persons in a relevantly analogous position who were also unremovable from the United Kingdom. Since the avowed purpose of s 23 was to protect the United Kingdom from Al-Qa'ida terrorism, a risk presented by both non-UK and UK nationals, a measure that deprived only non-UK nationals of their liberty was discriminatory and could not be justified. The use of an immigration mechanism to address a security problem inevitably and fatally distorted both the immigration and security objectives simultaneously.
The courts were not precluded by any doctrine of deference from scrutinising these issues. Whilst great weight was to be accorded to the executive's assessment of the security threat, the proportionality and discriminatory character of the legislative response remained justiciable questions upon which the judiciary was both competent and duty-bound to adjudicate.
The declaration of incompatibility issued under s 4 Human Rights Act 1998 does not strike down the offending legislation; it signals to Parliament that the provision is incompatible with Convention rights and leaves Parliament to determine the appropriate legislative response, thereby preserving Parliamentary sovereignty whilst discharging the courts' obligations under the Human Rights Act 1998.
Obiter Dicta
In a powerful dissenting judgement on the question of whether a public emergency existed at all, one member of the committee took the view that the real threat to the life of the nation came not from terrorism but from laws such as s 23 Anti-terrorism, Crime and Security Act 2001 itself, which he considered to undermine the fundamental values — the rule of law, liberty, and constitutional government — that made the United Kingdom worth protecting. On this analysis, he would have allowed the appeals on the narrower ground that no qualifying public emergency existed, without reaching the proportionality and discrimination questions. This dissent, though not forming part of the ratio, is widely regarded as one of the most eloquent judicial statements on the relationship between liberty and security in the post-11 September era.