5. Opinion of David Pannick QC prepared
for Liberty (the National Council for Civil Liberties) on the
derogation from Article 5(1) of the European Convention on Human
Rights to allow for detention without trial
1. I am asked to advise Liberty in relation
to the decision of the Home Secretary, on behalf of the United
Kingdom, to derogate from Article 5(1) of the European Convention
on Human Rights. In my view, the derogation is unlawful in the
current circumstances because it does not satisfy the criteria
set out in Article 15 of the Convention.
2. The background is as follows :
(1) The Home Secretary is concerned that,
because of Article 3 of the Convention (protection against torture,
and inhuman or degrading treatment or punishment), he cannot remove
from this country foreign nationals suspected of associations
with terrorism who have a well-founded fear of persecution in
the countries to which they might be sent.
(2) The Anti-Terrorism, Crime and Security
Bill will (if approved by Parliament) confer power on the Secretary
of State to detain such a suspected international terrorist for
a potentially indefinite period.
(3) In order to detain such persons here,
the Home Secretary needs to derogate from Article 5(1) of he Convention,
which prohibits arbitrary detention. See Chahal v United Kingdom
(1996) 23 EHRR 413, 465 (paragraph 113) and Ali v Switzerland
(1998) 28 EHRR 304 (European Commission of Human Rights) : Article
5(1) does not allow for detention because a person cannot be removed
to another country.
(4) The Home Secretary has placed before
Parliament an Order made under the Human Rights Act 1998 derogating
from Article 5(1) : The Human Rights Act 1998 (Designated Derogation)
Order 2001 SI No. 3644.
3. Article 15(1) of the Convention allows
for a derogation :
"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".
4. The Government accepts that this derogation
is valid only if there is a "public emergency threatening
the life of the nation" and if the measures taken are "strictly
required by the exigencies of the situation". See paragraphs
75-76 of the Explanatory Notes to the Anti-Terrorism, Crime and
5. The European Court of Human Rights has
stated that the State enjoys a wide margin of appreciation in
assessing whether such an emergency exists and, if so, what steps
are necessary to address it : Ireland v United Kingdom
(1978) 2 EHRR 25, 91-92 (paragraph 207) and Brannigan and McBride
v United Kingdom (1993) 17 EHRR 539, 569-570 (paragraph 43).
However, as the European Court added, States "do not enjoy
an unlimited power of appreciation". The discretion of the
State is "accompanied by European supervision".
6. In my view, the Government has not established
(even with the wide margin of appreciation enjoyed by it) that
there is a "public emergency threatening the life of the
(1) The European Court stated in Lawless
v Ireland (1961) 1 EHRR 15, 31 (paragraph 28)) that the words
"threatening the life of the nation" refer to
"an exceptional situation of crisis or emergency
which affects the whole population and constitutes a threat to
the organised life of the community of which the state is composed".
(2) There have been no terrorist incidents
in this country associated with the 11 September attacks in New
York and Washington, far less incidents of such gravity as to
threaten civil society which cannot be addressed by existing laws.
The derogation upheld in Brannigan and McBride arose (see
p.543, paragraph 12) in the context of 3000 deaths attributed
to terrorism in Northern Ireland, caused by over 40,000 terrorist
shooting or bombing incidents from 1972-1992. Indeed, there have
been grave terrorist outrages in England in recent years (such
as the Brighton bombing and the Canary Wharf bomb) which did not
lead the Government to conclude that detention without trial was
(3) The Home Secretary told the House of
Commons on 15 October 2001:
"There is no immediate intelligence pointing
to a specific threat to the United Kingdom . . .".
(4) There are already criminal offences which
address the conduct of those who plan or assist terrorism abroad.
If the Government considers that further such criminal offences
are needed, then it can seek to persuade Parliament to amend the
criminal law. The Anti-Terrorism, Crime and Security Bill contains
a range of new security measures.
(5) The derogation from Article 5(1) is prompted
by concern about an inability to remove foreign nationals from
this country because of Article 3. I am very doubtful that it
is a valid use of Article 15(1) to impose detriments on persons
because they seek to take advantage of rights conferred by Article
3, especially when Article 15(2) prohibits any derogation from
Article 3 itself because of its fundamental nature. It is strongly
arguable that the Secretary of State is not seeking to derogate
from Article 5(1) because of a public emergency threatening the
life of the nation, but because Article 3 prevents him removing
from the United Kingdom asylum-seekers who may face persecution
7. For the same reasons,I do not think that
the Secretary of State has established that detention without
trial is "strictly required". An important additional
factor is that neither the United States of America nor any other
of the more than 40 States in the Council of Europe has introduced
similar measures. In the USA, the measures adopted since 11 September
are confined to the detention of suspects for a short period,
after which the person concerned must be charged or released.
So other countries are proceeding on the traditional basis that
a person may not be detained without trial by reason of suspicion,
but must either be charged with a criminal offence or released
from custody. It is very difficult to understand why detention
without trial is "strictly required" in the United Kingdom
8. I therefore conclude that the derogation
from Article 5(1) of the European Convention on Human Rights is
unlawful in the current circumstances because it does not satisfy
the criteria contained in Article 15 of the Convention.
David Pannick QC
16 November 2001