A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
95. But the question is whether such a threat is a threat to the life of the nation. The Attorney General's submissions and the judgment of the Special Immigration Appeals Commission treated a threat of serious physical damage and loss of life as necessarily involving a threat to the life of the nation. But in my opinion this shows a misunderstanding of what is meant by "threatening the life of the nation". Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. When Milton urged the government of his day not to censor the press even in time of civil war, he said:
96. This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.
97. For these reasons I think that the Special Immigration Appeals Commission made an error of law and that the appeal ought to be allowed. Others of your Lordships who are also in favour of allowing the appeal would do so, not because there is no emergency threatening the life of the nation, but on the ground that a power of detention confined to foreigners is irrational and discriminatory. I would prefer not to express a view on this point. I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.
LORD HOPE OF CRAIGHEAD
98. I wish at the outset to pay tribute to the way which my noble and learned friend Lord Bingham of Cornhill has described the background to this case and set out all the relevant materials. With the benefit of the introduction which he has so helpfully provided, and without attempting to rehearse again every detail, I add these comments to explain why I have reached the same conclusions as he has done on all points.
99. Although these appeals are concerned with general issues and not with the cases of each of the appellants individually, their importance to them is nevertheless very great. Two cardinal principles lie at the heart of the argument. It is the first responsibility of government in a democratic society to protect and safeguard the lives of its citizens. That is where the public interest lies. It is essential to the preservation of democracy, and it is the duty of the court to do all it can to respect and uphold that principle. But the court has another duty too. It is to protect and safeguard the rights of the individual. Among these rights is the individual's right to liberty.
100. It is impossible ever to overstate the importance of the right to liberty in a democracy. In the words of Baron Hume, Commentaries on the Law of Scotland respecting Crimes, 4th ed (1844), vol 2, p 98:
These were not idle words. When Hume published the first edition of his Commentaries in 1797 grave abuses of the kind he described were within living memory. He knew the dangers that might lie in store for democracy itself if the courts were to allow individuals to be deprived of their right to liberty indefinitely and without charge on grounds of public interest by the executive. The risks are as great now in our time of heightened tension as they were then.
101. There is a third principle which the court must also recognise when it is called upon to perform its central function, which is to strike the balance between the public interest and the right to liberty. It is that the right to liberty belongs to each and every individual. Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms enshrines this right, and section 1 of the Human Rights Act 1998 has made it part of our law. Article 5(1) defines the only situations in which a person may be deprived of his liberty, and it begins with the word "Everyone". The right to liberty is to be enjoyed without discrimination, as article 14 of the Convention makes clear. The basic principle is that the right belongs to everyone, whoever they may be and wherever they may have come from, who happen to be within the Contracting State's territory. Everyone enjoys this right. It is a right, not a privilege. And it is accorded to everyone within the jurisdiction, as article 1 of the Convention declares. It is not given just to British citizens and those who have the right of abode in this country - not just to "British nationals".
102. When he was opening his argument the Attorney General said that the Human Rights Act 1998 (Designated Derogation) Order 2001 was a legitimate and proportionate response to a group of foreign nationals who had no right to be here with a view to protecting the rights of millions of people in the United Kingdom who were at risk of attack by international terrorists. His description of the persons against whom the Derogation Order was directed as a group of foreign nationals who had no right to be here was carefully chosen. The proposition that they were to be seen, in his words, as a subset of aliens who posed a threat to this country was later to form an important part of his argument on the discrimination issue. He submitted that, as it was legitimate for the State to distinguish between British nationals and aliens in the field of the control of immigration, their respective positions were not for the purposes of the discrimination argument to be regarded as analogous.
103. The right of the state to control immigration has, of course, long been recognised in international law. It forms the background to article 5(1)(f) of the Convention. This is why a Contracting State is permitted to deprive aliens, who have no right to be in the country, of their liberty for the purpose of preventing their unauthorised entry or with a view to their deportation or extradition. But it would be a serious error, in my opinion, to regard this case as about the right to control immigration. This is because the issue which the Derogation Order was designed to address was not at its heart an immigration issue at all. It was an issue about the aliens' right to liberty.
104. As the Schedule to the Derogation Order was right to point out, article 5(1)(f) permits the detention of a person with a view to detention only in circumstances where action is being taken with a view to deportation. It is clear, too, that deportation will cease to be permissible under that article if deportation proceedings are not prosecuted with due diligence: Chahal v United Kingdom (1996) 23 EHRR 413, 465, para 112. It was appreciated that the exercise of the extended power to detain which is now contained in section 23 of the Anti-terrorism, Crime and Security Act 2001 might be inconsistent with the state's obligations under article 5(1). The purpose of the Order was to enable the United Kingdom to exercise the extended power against a suspected international terrorist so that he could be detained under the Immigration Act 1971, despite the fact that his removal from this country was prevented either temporarily or permanently.
105. The Secretary of State was, of course, entitled to discriminate between British nationals on the one hand and foreign nationals on the other for all the purposes of immigration control, subject to the limitations established by the Chahal case. What he was not entitled to do was to treat the right to liberty under article 5 of the Convention of foreign nationals who happen to be in this country for whatever reason as different in any respect from that enjoyed by British nationals. How, one might ask, can such treatment be reconciled with article 33 of the United Nations Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906)? Indefinite detention for reason of their nationality is one of the evils against which refugees who would otherwise be expelled are entitled to protection under that article. A refugee who is faced with the prospect of that treatment abroad is protected, according to the principle set out in the preamble to the Convention that human beings shall enjoy fundamental rights and freedoms without discrimination. Why should that protection be any less complete while he remains here?
106. I would therefore take as my starting point the proposition that the article 5 right to liberty is a fundamental right which belongs to everyone who happens to be in this country, irrespective of his or her nationality or citizenship. The court is obliged to subject the Derogation Order and the legislation that resulted from it as it affects foreign nationals to the same degree of scrutiny as it would have to be given if it had been designed to deprive British nationals of their right to liberty.
107. The Attorney General also submitted that a wide margin of discretion should be accorded at each stage in the analysis to the executive and to Parliament. He based this submission on the claim of these branches of government to democratic legitimacy, on the fact that the executive was best placed to consider the risks and on the special nature of the intelligence exercise. I accept at once that the executive and the legislature are to be accorded a wide margin of discretion in matters relating to national security, especially where the Convention rights of others such as the right to life may be put in jeopardy: Leander v Sweden (1987) 9 EHRR 433, 453, para 59; Chassagnou v France (1999) 29 EHRR 615, 687, paras 112-113. But the width of the margin depends on the context. Here the context is set by the nature of the right to liberty which the Convention guarantees to everyone, and by the responsibility that rests on the court to give effect to the guarantee to minimise the risk of arbitrariness and to ensure the rule of law: Aksoy v Turkey (1996) 23 EHRR 553, 588, para 76. Its absolute nature, save only in the circumstances that are expressly provided for by article 5(1), indicates that any interference with the right to liberty must be accorded the fullest and most anxious scrutiny.
108. Put another way, the margin of the discretionary judgment that the courts will accord to the executive and to Parliament where this right is in issue is narrower than will be appropriate in other contexts. We are not dealing here with matters of social or economic policy, where opinions may reasonably differ in a democratic society and where choices on behalf of the country as a whole are properly left to government and to the legislature. We are dealing with actions taken on behalf of society as a whole which affect the rights and freedoms of the individual. This is where the courts may legitimately intervene, to ensure that the actions taken are proportionate. It is an essential safeguard, if individual rights and freedoms are to be protected in a democratic society which respects the principle that minorities, however unpopular, have the same rights as the majority. The intensity of the scrutiny will nevertheless vary according to the point that has to be considered at each stage as one examines the question that was referred to the Special Immigration Appeals Commission ("SIAC") under section 30 of the 2001 Act. This is whether the Derogation Order and Part 4 of the 2001 Act are incompatible with the appellants' Convention rights.
Article 15(1) - the Derogation Order
109. The first point that has to be examined is the wording of article 15. It allows states to derogate from their obligations under the Convention, but only in the circumstances that it sets out. It provides:
110. Leaving a state of war aside as it does not arise in this case, the wording of this article can be broken down into three parts, each of which can be put in the form of a question. (1) Is the situation facing the High Contracting Party a public emergency which threatens the life of the nation? (2) Are the measures strictly required by the exigencies of the situation which has arisen? (3) Are the measures inconsistent with the High Contracting Party's other obligations under international law?
111. The phrase "threatening the life of the nation" is unique to article 15(1). But a similar phrase appears in article 4(3)(c). It permits service in the form of forced or compulsory labour to be exacted in case of an emergency or calamity "threatening the life or well-being of the community." The situation contemplated by these expressions was described in Lawless v Ireland (No 3) (1961) 1 EHRR 15, 31, para 28 as 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."
112. The present tense which this formulation uses might be thought to indicate a situation that has already arisen. But the European Commission in The Greek Case (1969) 12 YB 1, 72, para 153 adopted the word "imminent" which was used in the French text of the court's judgment in Lawless. So it has been recognised that derogation is permitted in the face of an emergency which has not yet happened but is imminent. The European Court has said that it will accord a large margin of appreciation to States in their assessment of the question whether the situation with which they are faced constitutes an actual or an imminent emergency: Ireland v United Kingdom (1978) 2 EHRR 25, 92, para 207. In the domestic legal order also great weight must be given to the views of the executive, for the reasons that were explained by Lord Hoffmann in Secretary of State for the Home Department v Rehman  1 AC 153, 194, 195, paras 57, 62.
113. Then there is the question whether the measures that are contemplated are "strictly required" by the exigencies of the situation. This too is another matter as to which, according to the jurisprudence of the European Court, a large margin of appreciation is granted to the contracting states. But, as the Commissioner for Human Rights of the Council of Europe, Mr Alvaro Gil-Robles, pointed out in paras 7 and 8 of his Opinion 1/2002 on certain aspects of the United Kingdom's derogation from article 5(1) dated 28 August 2002, the separation of powers whereby the government's legislative proposals are subject to the approval of Parliament and, on enactment, to review by the courts is a constitutive element of democratic government. So particular importance must be attached to the effectiveness of the process of scrutiny by the judiciary where the question raised is whether interference with the right to liberty is strictly required by the emergency. This is because the right to liberty is within its area of responsibility. As Mr Gil-Robles put it in para 9:
114. Accordingly the fact that the European Court will accord a large margin of appreciation to the contracting states on the question whether the measures taken to interfere with the right to liberty 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. Final responsibility for determining whether they do exceed these limits must lie with the courts, if the test which article 15(1) lays down is to be applied within the domestic system with all the rigour that its wording indicates.
The public emergency
115. The question whether there is a public emergency of the kind contemplated by article 15(1) requires the exercise of judgment. The primary meaning of the word is an occurrence that is sudden or unexpected. It has an extended meaning - a situation of pressing need. A patch of fog on the motorway or a storm which brings down power lines may create a situation of emergency without the life of the nation being under threat. It is a question of degree. The range of situations which may demonstrate such a threat will extend from the consequences of natural disasters of all kinds to the consequences of acts of terrorism. Few would doubt that it is for the executive, with all the resources at its disposal, to judge whether the consequences of such events amount to an emergency of that kind. But imminent emergencies arouse fear and, as has often been said, fear is democracy's worst enemy. So it would be dangerous to ignore the context in which the judgment is to be exercised. Its exercise needs to be watched very carefully if it is a preliminary to the invoking of emergency powers, especially if they involve actions which are incompatible with Convention rights.
116. I am content therefore to accept that the questions whether there is an emergency and whether it threatens the life of the nation are pre-eminently for the executive and for Parliament. The judgment that has to be formed on these issues lies outside the expertise of the courts, including SIAC in the exercise of the jurisdiction that has been given to it by Part 4 of the 2001 Act. But in my opinion it is nevertheless open to the judiciary to examine the nature of the situation that has been identified by government as constituting the emergency, and to scrutinise the submission by the Attorney General that for the appellants to be deprived of their fundamental right to liberty does not exceed what is "strictly required" by the situation which it has identified. The use of the word "strictly" invites close scrutiny of the action that has been taken. Where the rights of the individual are in issue the nature of the emergency must first be identified, and then compared with the effects on the individual of depriving him of those rights. In my opinion it is the proper function of the judiciary to subject the government's reasoning on these matters in this case to very close analysis. One cannot say what the exigencies of the situation require without having clearly in mind what it is that constitutes the emergency.
117. The evidence which was placed before SIAC in this case was divided into two parts: material which could be made public and "closed material". Your Lordships have not been shown the closed material, and the Attorney General said that he was not asking for that material to be seen. The material which could be made public is contained in two Open Generic Statements which were prepared on behalf of the Home Secretary and in two witness statements by Mr Robert Whalley, a senior civil servant of the Home Office, dated 1 March 2002 and 19 June 2002.
118. There is ample evidence within this material to show that the government were fully justified in taking the view in November 2001 that there was an emergency threatening the life of the nation. As Mr Whalley put it in his first witness statement, the United Kingdom was at danger of attacks from the Al Qaeda network which had the capacity through its associates to inflict massive casualties and have a devastating effect on the functioning of the nation. This had been demonstrated by the events of 11 September 2001 in New York, Pennsylvania and Washington. There was a significant body of foreign nationals in the United Kingdom who had the will and the capability of mounting co-ordinated attacks here which would be just as destructive to human life and to property. There was ample intelligence to show that international terrorist organisations involved in recent attacks and in preparation for other attacks of terrorism had links with the United Kingdom, and that they and others posed a continuing threat to this country. There was a growing body of evidence showing preparations made for the use of weapons of mass destruction in this campaign. In his second witness statement Mr Whalley said that it was considered that the serious threats to the nation emanated predominantly, albeit not exclusively, and more immediately from the category of foreign nationals.
119. The picture which emerges clearly from these statements is of a current state of emergency. It is an emergency which is constituted by the threat that these attacks will be carried out. It threatens the life of the nation because of the appalling consequences that would affect us all if they were to occur here. But it cannot yet be said that these attacks are imminent. On 15 October 2001 the Secretary of State said in the House of Commons that there was no immediate intelligence pointing to a specific threat to the United Kingdom: see Hansard (HC Debates, col 925). On 5 March 2002 this assessment of the position was repeated in the government's response to the Second Report of the House of Commons Select Committee on Defence on the Threat from Terrorism (HC 348, para 13) where it was stated that it would be wrong to say that there was evidence of a particular threat. I would not conclude from the material which we have seen that there was no current emergency. But I would conclude that the emergency which the threats constitute is of a different kind, or on a different level, from that which would undoubtedly ensue if the threats were ever to materialise. The evidence indicates that the latter emergency cannot yet be said to be imminent. It has to be recognised that, as the attacks are likely to come without warning, it may not be possible to identify a stage when they can be said to be imminent. This is an important factor, and I do not leave it out of account. But the fact is that the stage when the nation has to face that kind of emergency, the emergency of imminent attack, has not been reached.
120. The distinction which is to be drawn between these two situations is important. The situation which is said to require the derogation is the situation which we face now, not the situation that might arise at some unknown time in the future. The life of the nation is said to be threatened. But do the exigencies of the situation which we face now require that the appellants be deprived of their right to liberty? All the factual material which may provide an answer to this question is in the hands of the Home Secretary. But has he asked himself the right question in his analysis of this material? And did SIAC ask itself the right question when it was examining the decision of the Home Secretary?
121. In my opinion there were two questions that had to be addressed in order to determine whether or not the derogation that was proposed was strictly required. One was what its effects would be on the individuals who were to be affected by it. The other was whether, given those effects and the way British nationals who posed the same threat to the life of the nation were to be dealt with, derogating from the right to liberty of those individuals was strictly necessary. The second question is relevant to the discrimination issue, but I think that it also bears directly on the question whether the derogation went beyond what was strictly required. As I understand its judgment, SIAC too appreciated this point although it dealt with it at the end of the judgment as a discrimination issue. What this part of article 15(1) requires the contracting state to do is to consider with the greatest care whether an alternative course of action can be taken to deal with the exigencies of the situation produced by the emergency which will make derogation from its obligations under the Convention unnecessary.
122. The effects on the individual of a derogation that deprives him of his right to liberty will vary according to the nature, and above all the length, of the emergency. It will usually be impossible to say when an emergency arises how long it will last. But in some cases it may be perfectly obvious from the outset that it will last for a very long time, perhaps indefinitely. That seems to be the situation in this case. A timetable of events is built into the Act for the review of the operation of sections 21 to 23, and their duration is limited: see sections 28 and 29. Section 29(7) provides that those sections shall by virtue of that subsection cease to have effect at the end of 10 November 2006. But if the emergency persists, and the government is right in its belief that the derogation is strictly required to deal with it, the powers which these sections give to certify and detain suspected international terrorists will have to be renewed. It is a reasonable assumption that, if the situation remains unchanged, Parliament will be asked to re-enact them for a further period. All the signs are that the detentions that result from the exercise of these powers will continue indefinitely and that the period of its duration for the future will be measured not in months but years - and no one can yet say how many.
123. The Attorney General said that the first priority of the government is to prosecute those whom it suspects of being involved in international terrorism. But the appellants fall into the category of those whom, for a variety of reasons relating to the sources or quality of the evidence, it is unable or unwilling to prosecute. He then said that the appellants' place of detention has three walls, not four. There is no safe country to which they can be extradited, but they are free to leave the United Kingdom at any time if they wish and can find another safe country to which they can go. He pointed out that two aliens who were initially detained under section 23 of the Act have already done so - one to France and the other to Morocco. But it would be more accurate to say that the detainees who remain here are in a cul-de-sac from which, as they have no safe country to go to, there is no escape.