Legal Challenges and Human Rights Issues
Introduction and Overview
This chapter explores the ways in which some of the concerns identified in this Part of the book have translated into the outcome of a range of legal challenges, including those raising human rights issues, in respect of the use of executive measures since 9/11. In a number of instances, where powers have yet to be invoked or challenges are pending, the chapter suggests what the outcomes might be.
Each of the security regimes of executive measures since 9/11 affords a right of appeal from the executive decision-maker, either to SIAC (ATCSA detention and national security immigration/citizenship matters) or to the High Court (control orders under the PTA 2005). From those courts lies a further appeal, on a point of law only, to the Court of Appeal (or its Scottish and Northern Ireland equivalents) and the House of Lords. For other regimes (detention in Iraq; issues surrounding the United Kingdom Government’s response to detainees in Guantanamo), there is the avenue of judicial review. This chapter notes judicial review in those spheres. but mainly examines the use made of these appellate modes of challenge, focusing particularly on matters of human rights compliance. In the past such matters were very much the domain of the organs of the regional system of human rights protection, the European Convention on Human Rights (ECHR). The period since 9/11, in contrast, falls in the era of the HRA, and these matters have instead to date solely been the province of United Kingdom courts, with recourse to Strasbourg as a yet-to-be-needed longstop. The initial appellate modes of challenge are set in motion by the aggrieved individual, seeking to overturn the executive decision to detain, subject to a control order, exclude, deport or deprive of citizenship, as the case may be. But the further recourse to higher courts has been used by both sides. The executive uses it to seek to overturn a SIAC or High Court ruling that some aspect of the scheme in question is not Convention-compliant and to have restored the Government view on that issue. The individual uses those appeal rights to overturn SIAC/High Court/Court of Appeal validation of the executive decision limiting his/her rights and freedoms. Moreover, on human rights issues, other actors appear on the stage. Constitutional and human rights litigation typically sees the court being aided on the matter by the intervention of a number of interested parties. Going beyond national courts to the European Court of Human Rights is, of course, a direct route of challenge open only to the aggrieved individual. The State cannot be a victim of a human rights violation, merely a respondent in a case brought against it, or an applicant bringing a case against another state, as in Greece v United Kingdom or Ireland v United Kingdom. To date, the United Kingdom has only ever featured as a respondent. The deportation context, however, shows the United Kingdom Government intervening in a case before that Court in which an individual is contesting the human rights compliance of a decision of the Netherlands to deport him on security grounds.1 The Government’s objective here is an aspect of its wider strategy of trying to secure a change in one of the ‘rules of the game’, namely a modification of the absolute preclusion of deportation afforded by the Chahal principle. In effect, the Government is seeking to have adopted the view of the minority in Chahal,2 a view which seems to have prevailed – at least in very exceptional circumstances – in the Canadian Supreme Court applying the Canadian Charter of Rights and Freedoms.3 The Home Secretary explained in a speech to the European Parliament that it is
… necessary to balance very important rights for individuals against the collective right for security against those who attack us through terrorist violence. Our strengthening of human rights needs to acknowledge a truth which we should all accept, that the right to be protected from torture and ill-treatment must be considered side by side with the right to be protected from the death and destruction caused by indiscriminate terrorism, sometimes caused, instigated or fomented by nationals from countries outside the EU. … The view of my Government is that this balance is not right for the circumstances which we now face … and that it needs to be closely examined in that context.4
The legal challenges (actual or potential) have covered, or could cover, a number of areas. They have embraced (or could embrace) matters of substantive compliance with a number of ECHR rights and freedoms: freedom from torture, inhuman or degrading treatment and punishment; the right to liberty and security of person (freedom from arbitrary arrest and detention), the right to respect for private and family life, home and correspondence, as well as the interrelated freedoms of thought, conscience and religion, and of expression, association and assembly. They have also raised matters of the material or evidence on which SIAC and/or the High Court can act, and the standards of scrutiny they must apply, unfortunately varying (with not a great deal of justification for that variance) as between each decision-making context. Finally a central focus of actual and potential litigation concerns the matter of whether the systems for challenging adverse executive decisions themselves, and their attempts to reconcile due process and security, meet ECHR requirements of a fair hearing. Discussion is divided accordingly and, because of varying levels of review, sometimes by reference to the particular scheme.
Substantive Compliance with Fundamental Rights and Freedoms
ATCSA Detention: the Derogation Litigation
From the outset, Government was clear that its scheme of indefinite detention without trial of foreign national terrorist suspects, unable to be prosecuted or deported, was incompatible with the guarantee of liberty and security of person afforded by Art. 5 ECHR, as normally applicable. It accordingly entered a protective derogation under Art. 15 ECHR, arguing that, in accordance with that provision, the scheme was a justified, necessary and proportionate response to a public emergency threatening the life of the nation. It did not go beyond what the exigencies of that emergency strictly required. It was, moreover, consistent with the country’s other international obligations. As an immigration measure, to deal with a threat posed by foreign nationals, it was furthermore not discriminatory contrary to Art. 14 ECHR, but instead rationally distinguished between citizens and aliens, as that provision and international law permitted.
This characterization of the scheme was the first subject of challenge by the ATCSA detainees before SIAC, with the matter of whether they were properly detained under the legislation being adjourned pending resolution of the derogation issues and the general Convention compliance of the ATCSA scheme.
The challenge to this Convention rights aspect was initially upheld by SIAC on 20 July 2002. SIAC is the only court to examine in detail all the ‘security evidence’ seen by and presented to it on behalf of the Home Secretary. Moreover, SIAC also had the advantage, not possessed by him, of having that material carefully probed, on its and the applicants’ behalf, by the Special Advocates in their ‘devil’s advocate’ role. Applying to that material thus thoroughly scrutinized the Art. 15 tests propounded by the European Court of Human Rights in Lawless v Ireland, SIAC, paying the due deference to executive opinion that Rehman and the traditional judicial approach required, held that there existed in the United Kingdom an imminent public emergency threatening the life of the nation. It did so not because an attack was imminent, but rather because of the devastation possible if a 9/11 type attack by Al Qaeda operatives was not prevented.5 That conclusion was thought to be reinforced since the United Kingdom, standing ‘shoulder to shoulder’ with the United States in the ‘war on terrorism’, was as a result at greater risk than other European States.6 It also regarded the response as proportionate. SIAC declared the relevant ATCSA provisions incompatible with Art. 5 read with Art. 14 ECHR as discriminatory on grounds of national origin, since those terrorist suspects threatening security who held British citizenship could not be detained. Art. 14 ECHR was not the subject of derogation, and had to be read in its normal application. In SIAC’s view, the material before the Home Secretary did not show the threat as solely arising from foreign nationals.
The Home Secretary successfully appealed the decision to the Court of Appeal. On 25 October 2002, the Court – paying due deference to his assessment and to that of SIAC as the only court which had seen the ‘security’ evidence’ – upheld the decision on imminent public emergency. Again paying the required due deference to executive opinion, like SIAC, the Court of Appeal held that the detention measures taken did not go beyond the exigencies of that emergency situation required. They were not disproportionate and the deprivation of liberty imposed was subject to adequate safeguards, because of the availability of SIAC appeal and review options.7 The decision on the adequacy of safeguards is supportable, but the former finding on proportionality may be criticized since neither court explored the viability of less restrictive alternatives which might be sustainable under the ECHR without an Art. 15 derogation. These perforce would have to fall well short of effective ‘house arrest’ (for example, electronic tagging, physical and other electronic surveillance), and would have significant privacy implications and resource costs.8 SIAC’s decision on discrimination, however, was overturned by the Court of Appeal.9 The Court regarded the proper pigeonhole for the legislative scheme as ‘immigration’ which of necessity distinguishes, as recognized in international law, between citizens and aliens. Moreover the greater threat to security (paying the due deference to executive opinion required by law)10 came from foreign nationals, so that the detention only of such nationals was not discrimination contrary to Art. 14 ECHR. The two groups were not similarly situated for purposes of comparison.
The applicants appealed to the House of Lords. The constitutional importance of the challenge was reflected in that the House sat in a bench of nine Law Lords. Lord Steyn, in the light of views he had expressed extra-judicially, had agreed not to be part of it. Argument was heard over four days in October 2004. The nine opinions in the seminal decision of the House of Lords were delivered on 16 December, 2004. The decision represents a marked but welcome departure from a traditional judicial attitude of extreme deference to executive opinion when the red flag of national security is waved. Given that established constitutional and legal tradition of deference, and given the weak-willed approach of the European Court of Human Rights to Art. 15 ECHR, the Home Secretary might be forgiven for thinking legal challenge an irritant but not a particular problem; especially so, when, as has been seen, the House of Lords in Rehman, in opinions written before but delivered after 9/11, had castigated SIAC for too narrow an approach to national security and for insufficient deference to the Home Secretary’s expertise in security matters. The deferential tradition was, moreover, very much to the fore in the Court of Appeal decision on the derogation issues, the decision the subject of this, the ATCSA detainees’, appeal to their Lordships’ House. Put shortly, the House issued a declaration under section 4 of the HRA that section 23 of ATCSA, the key provision in the indefinite detention without trial scheme, was incompatible with Art. 5 (liberty and security of person) read with Art. 15 ECHR (derogation) as going beyond what was necessitated by the exigencies of a public emergency threatening the life of the nation (disproportionate) and was incompatible with Art. 14 (discrimination) read with Art. 5 ECHR, as being unjustifiably discriminatory on grounds of nationality/national origin.
Closer analysis is required of the opinions in these ‘difficult and important appeals’,11 ‘one of the most important cases which the House has had to decide in recent years’.12 The analysis shows that in the Human Rights Act era, the rules of the game have indeed changed as regards judicial scrutiny of executive and legislative action in the national security/public emergency area. Consideration is best approached by separating out the three matters the House had to consider: (a) the threshold issue, whether there was a public emergency threatening the life of the nation; (b) the necessity/proportionality issue, whether the measures taken were strictly required by the exigencies of that public emergency; and (c) whether the measures, by focusing solely on foreign national terrorist suspects, breached the ECHR requirement in Art. 14 that interferences with the protected rights and freedoms be non-discriminatory.
The ‘threshold’, public emergency, issue SIAC found that an imminent emergency existed, not because an attack was imminent, but because of the devastation that could occur if one took place. The House of Lords held by eight to one (Lord Hoffman dissenting on this issue) that SIAC had not erred in law in that finding, so their Lordships were not empowered to overturn that. ‘Public emergency’ was regarded as a question primarily if not exclusively a matter for the Executive rather than the judiciary. This did not mean that the judges had simply to accept whatever the Government said on the issue. Baroness Hale put very well both the powers of the court on the issue and the limited nature of the courts’ ability to deal with it:
The courts’ power to rule on the validity of the derogation is another of the safeguards enacted by Parliament in this carefully constructed package. It would be meaningless if we could only rubber-stamp what the Home Secretary and Parliament have done. But any sensible court … recognises the limits of its expertise. Assessing the strength of a general threat to the life of the nation is, or should be, within the expertise of the Government and its advisers. They may, as recent events have shown, not always get it right. But courts too do not always get things right. It would be very surprising if the courts were better able to make that sort of judgment than the Government. … That does not mean that the courts could never intervene. Unwarranted declarations of emergency are a familiar tool of tyranny. If a Government were to declare a public emergency where patently there was no such thing, it would be the duty of the court to say so. But we are here considering the immediate aftermath of the unforgettable events of 11 September 2001. The attacks launched on the United States on that date were clearly intended to threaten the life of that nation. SIAC were satisfied that the open and closed material before them justified the conclusion that there was also a public emergency threatening the life of this nation. I, for one, would not feel qualified or even inclined to disagree.13
Lord Hoffman’s much-reported dissent – doubtless reflective of his South African experience – unfortunately attracted most headlines. It was the subject of the Prime Minister’s derisory approach to judges in statements after the 7/7 attacks. Lord Hoffman stated in ringing terms:
This is one of the most important cases which the House has had to decide in recent years. It calls into question the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention. The power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial. Nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom. … The Home Secretary has adduced evidence, both open and secret, to the existence of a threat of serious terrorist outrages. The Attorney General did not invite us to examine the secret evidence, but despite the widespread scepticism which has attached to intelligence assessments since the fiasco over Iraqi weapons of mass destruction, I am willing to accept that credible evidence of such plots exist. The events of 11 September 2001 in New York and Washington and 11 March 2003 in Madrid make it entirely likely that the threat of similar atrocities in the United Kingdom is a real one. 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. … 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. … Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community. For these reasons I think that the Special Immigration Appeals Commission made an error of law … In my opinion, [indefinite detention without trial] 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.14
Its tone is reminiscent of Lord Atkin’s famous dissent in Liversidge v Anderson and that of Lord Shaw in ex parte Zadig. It also adopts the ‘strict scrutiny’ approach that arguably should be that of the European Court of Human Rights.15 Despite this, it is open to a number of criticisms. First of all, it takes insufficient account of the Strasbourg jurisprudence, as section 2 of the HRA mandates courts to do. Lord Hoffman merely characterized that case law as unhelpful and as stressing the wide margin of appreciation it afforded a State. For him, Strasbourg case law meant that a United Kingdom court had to decide the matter for itself. His opinion thus fails to relate the Court’s definitions to the context of the cases in which they were propounded. It shows no appreciation for the low level of violence and anti-State activity accepted16 and the ‘not very high’ threshold17 set by the Court in Lawless v Ireland and in Marshall v United Kingdom as a basis for derogation, something analysed more fully in the opinions of Lords Rodger,18 Walker,19 and, particularly, Lord Bingham, who also explored material in respect of the United Kingdom’s obligations under the ‘public emergency clause’ in Art. 4 ICCPR, statements from the Council of Europe’s Commissioner for Human Rights, the Newton Review of ATCSA and reports on it by the JHRC.20 Lord Hoffman had read in draft Lord Bingham’s opinion, but adopted it only as a ‘statement of the background to this case and the issues which it raises’. Nor does Lord Hoffman’s opinion consider the analogy between that case and the situation under appeal of terrorists using one country as a base to attack another. Lord Hoffman’s opinion is difficult to reconcile with the deferential approach he set out for SIAC in Rehman immediately after 9/11. Indeed his colleague Lord Hope expressly relied on Lord Hoffman’s opinion in Rehman to stress that in ‘the domestic legal order also great weight must be given to the views of the executive’, so that ‘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.’21
While unwilling to regard the SIAC finding as erroneous in law, some of Lord Hoffman’s colleagues nevertheless put on record misgivings about the decision they felt compelled to reach on the public emergency issue, a degree of scepticism about the Government’s claims in respect of it, and some indication of the wider political and constitutional context fuelling that scepticism.
Lord Bingham decided the issue against the detainees, not without misgiving enhanced by reading Lord Hoffman’s opinion.22 Lord Walker, similarly, in light of that dissenting opinion, rejected the applicants’ ‘no emergency’ submission ‘not without some hesitation’.23 Lord Scott gave the Government the benefit of the doubt in deciding the threshold issue in its favour. But he also alluded to the effect of the controversy over the intelligence and WMD debacle in respect of going to war in Iraq:
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’.24
The necessity/proportionality issue Here the question was whether the measures of indefinite detention – applicable only to foreign national terrorist suspects – were strictly required by the exigencies of that public emergency. Strasbourg jurisprudence shows this to embody a number of matters. First of all, could any lesser measures suffice? Secondly, if not, were the measures in question subject to adequate safeguards against abuse? The opinions of those in the majority on this issue deal only with the first of these. Lord Walker, dissenting on the necessity and proportionality of the measures, dealt with both matters. He thought that SIAC had not erred in law in finding the measures necessary and proportionate:
the detention without trial of non-national suspected terrorists is a cause of grave concern. But the judgment of Parliament and of the Secretary of State is that these measures were necessary, and the 2001 Act contains several important safeguards against oppression. … Moreover the legislation is temporary in nature. Any decision to prolong it is anxiously considered by the legislature. While it is in force there is detailed scrutiny of the operation of sections 21 to 23 by the individual (at present Lord Carlile QC) appointed under section 28. There is also a wider review by the Committee of Privy Councillors appointed under section 122. All these safeguards seem to me to show a genuine determination that the 2001 Act, and especially Part 4, should not be used to encroach on human rights any more than is strictly necessary. … is also significant that in a period of nearly three years no more than seventeen individuals have been certified … every single detention without trial is a matter of concern, but in the context of national security the number of persons actually detained … is to my mind relevant to the issue of proportionality. Liberty … appears to rely on the small number of certifications as evidence that there is not a sufficiently grave emergency. That is, I think, a striking illustration of the dilemma facing a democratic government in protecting national security.25
The difference between Lord Walker and his colleagues is ultimately more one of judgment and appreciation than a fundamental one of approach. He saw the issue of detention without trial as probably the most crucial instance of the difficulties of reconciling individual human rights with the interests of the community, and of determining the proper functions, in this process, of the various branches or organs of government. He cited, with approval, Lord Hoffman’s approach to that matter in Rehman. But, like the others, he recognized that the area of liberty and security of person was such as to require the courts to subject the decision of executive or legislature to very close scrutiny:
Safeguarding national security is (with the possible exception of some questions of macro-economic policy and allocation of resources) the area of policy in which the courts are most reluctant to question or interfere with the judgment of the executive or (a fortiori) the enacted will of the legislature. Nevertheless the courts have a special duty to look very closely at any questionable deprivation of individual liberty. Measures which result in the indefinite detention in a high-security prison of individuals who have not been tried for (or even charged with) any offence, and who may be innocent of any crime, plainly invite judicial scrutiny of considerable intensity.26
This was so, in part, because history showed that national security can be the tyrant’s last refuge, ‘a cloak for arbitrary and oppressive action on the part of government.’27
His fellow Law Lords all supported the need for very close scrutiny in an area vitally affecting the fundamental right to liberty and security of person. Moreover, they considered that courts were not required to show so much ‘deference’ or ‘margin of discretion’ to executive or legislative judgment on this necessity/proportionality issue as on the public emergency issue. They based that on a variety of factors and considerations, some legislative, some flowing from their view of the constitutional relationship between the courts and the other organs of government, and on the implications of the vertical relationship between national courts and authorities and the jurisdiction and approach of the European Court of Human Rights.
The task of the courts, said Lord Bingham, is to protect liberty and thus to subject the Home Secretary’s decision to use detention to very close scrutiny.28 This was warranted in part because the European Court of Human Rights’ accordance of a wide margin of appreciation to States in this area – an aspect of ‘the principle of the subsidiarity of the protection of Convention rights’ – was predicated on a proper judicial review in national courts.29 He also drew on the point made by the House in Daly, that where proportionality questions are at issue, the intensity of review by the courts is greater than when applying traditional Wednesbury irrationality scrutiny, even under the heightened scrutiny approach there appropriate when considering interference with a fundamental right or freedom. Lord Bingham took note of the warning from the Korematsu decision of the Supreme Court on the internment during the Second World War in the United States of American citizens of Japanese origin. That decision in 1942 upheld executive action on the basis of necessity. In another Korematsu case in 1984 Patel J, a federal judge, characterized the earlier case as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. Adding to that mix of considerations, the legislative mandate conferred by the HRA accentuated the need for close judicial scrutiny; Lord Bingham considered that
The courts are not effectively precluded by any doctrine of deference from scrutinising the issues raised. … I do not accept the full breadth of the Attorney General’s submissions. I do not in particular accept the distinction which he drew between democratic institutions and the courts. … the judges in this country are not elected and are not answerable to Parliament. … Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not … to override the sovereign legislative authority of … Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate.30
As Lord Nicholls saw it, the HRA imposed a particular responsibility on courts to check that legislation and ministerial decisions do not overlook the human rights of individuals adversely affected. Courts should accord the other organs of government a proper degree of latitude which will
… vary according to the subject matter under consideration, the importance of the human right in question, and the extent of the encroachment upon that right. The courts will intervene only when it is apparent that, in balancing the various considerations involved, the primary decision–maker must have given insufficient weight to the human rights factor.
Here, the subject matter being national security would normally involve ‘substantial latitude’, but that was drastically reduced where, as here,
The right to individual liberty is one of the most fundamental of human rights. Indefinite detention without trial wholly negates that right for an indefinite period. With one exception all the individuals currently detained have been imprisoned now for three years and there is no prospect of imminent release. It is true that those detained may at any time walk away from their place of detention if they leave this country. Their prison, it is said, has only three walls. But this freedom is more theoretical than real. This is demonstrated by the continuing presence in Belmarsh of most of those detained. They prefer to stay in prison rather than face the prospect of ill treatment in any country willing to admit them.31
For Lord Hope it was ‘impossible ever to overstate the importance of the right to liberty in a democracy’ and the threat to it of indefinite detention on executive stated grounds of public interest.32 Since ECHR rights belonged to everyone within a State’s jurisdiction, the court had to subject ATCSA detention of 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’.33 The court should accord the executive and legislature the appropriate ‘margin of discretion’, which will vary according to the context, the right at stake and the relevant stage of analysis in the questions that arise under Art. 15 ECHR.34
As regards the necessity/proportionality issue, he thought that the inclusion of ‘strictly’ invited 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 or her of those rights. The proper function of the judiciary was to subject the government’s reasoning on these matters in this case to very close analysis, keeping in mind that what the exigencies of the situation require depends on what constitutes the emergency.35 There was a difference between what was ‘desirable’ and what was ‘strictly required’. Lord Rodger founded his opinion on ATCSA making SIAC the initial appellate body for dealing with legal proceedings on derogation. If that was to have real meaning, deference to the views of the other organs of government on the issues could not be taken too far. Even where national security was involved, deference was not to be equated with abasement before those views. The legitimacy of scrutiny by SIAC and appellate courts of these issues was undoubted, the more so given that, as Lord Bingham had also noted, the wide margin of appreciation granted by the Strasbourg Court pre–supposed national courts policing the limits set by Art. 15 ECHR. Adequate scrutiny by the courts also guarded against the risk that national security was used as a pretext, as in Nazi Germany, to justify repressive measures taken in reality for very different reasons. Proper scrutiny was also necessary because of the simple danger that a measure thought justified by executive and parliament on the basis of national security, might on closer examination by the courts be revealed as going too far. The example given by his Lordship here was the ‘collar the lot’ approach taken in 1940 to German and Italian enemy aliens, many of them refugees from the Axis powers.36 Hence, he continued, moving matters to specific context,
SIAC and the appellate courts have a limited, but none the less important, duty to check whether, as Art. 15(1) stipulates, the measure was strictly required by the exigencies of the situation. In discharging that duty British courts are performing their traditional role of watching over the liberty of everyone within their jurisdiction, regardless of nationality. In the words of La Forest J in RJR-MacDonald Inc v Attorney General of Canada  3 SCR 199, 277, ‘Courts are specialists in the protection of liberty….’ Here the exercise happens to take the particular form of examining the grounds for the derogation from the basic guarantees in Art. 5 of the Convention, which aim to secure the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities … In performing this role and checking whether detention of the foreign suspects, such as the appellants, was strictly required, the courts are entitled to have regard to the extent of the inroad which it makes into the liberty of those foreign suspects: the greater the inroad, the greater the care with which the justification for it must be examined. On any view, the inroad into the appellants’ liberty is far-reaching. … the reality is that they have already been detained for three years and their detention is likely to continue for at least two more years. In fact it is likely to go on for even longer if the legislation is renewed in 2006 … The acute question is whether the exigencies of the situation strictly required a small number of foreign suspects to endure indefinite detention of this kind while, in the judgment of the Government and Parliament, an undisclosed number of British suspects could safely be allowed to remain at liberty.37
For the majority of their lordships, this differential treatment of foreign national and British terrorist suspects was the nub of the matter. It obviously is crucial to the matter of discrimination, yet to be examined. But it was also central to the necessity/proportionality issue now under consideration. As has been seen, the Government approached the problem essentially as one of immigration law, creating in ATCSA Part 4 a detention regime to deal with the fact that deportation on security grounds, the traditional way of disposing of undesirable ‘aliens’ (see chapter 4), in this case terrorist suspects, was closed off in many cases because of the Chahal ruling; that is, that government would breach Art. 3 were it to return a suspect to a State where there were substantial grounds for believing that if returned there he faced a real risk of torture, inhuman or degrading treatment or punishment within the meaning of Art. 3 ECHR. That same preclusion is found also in the Human Rights Committee’s jurisprudence on Art. 7 ICCPR and, in respect of torture only, Art. 3 UNCAT. It asserted in its derogation notice that the threat constituting the public emergency came in particular from
foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organizations or groups which are so concerned or of having links with members of such organizations or groups, and who are a threat to the national security of the United Kingdom.38
Elsewhere, and before the House of Lords, the position was maintained that the threat came predominantly (although not exclusively) and more immediately from foreign nationals. Each of their Lordships considered a range of material on this crucial point: the findings of the Newton Committee; Lord Carlile’s reviews; and reports of the JHRC. The findings of fact by SIAC, which saw and appraised with the benefit of Special Advocate analysis and criticism all the security evidence seen by the Home Secretary, were, however, to prove crucial to their Lordships’ decision. SIAC, the decision of which was in essence if not in strict legal form, under appeal to their Lordships’ House, found that
the evidence before us demonstrates beyond argument that the threat is [not confined to the alien section of the population]. There are many British nationals already identified – mostly in detention abroad – who fall within the definition of ‘suspected international terrorists,’ and it was clear from the submissions made to us that in the opinion of the [Home Secretary] there are others at liberty in the United Kingdom who could be similarly defined.39
Lord Bingham emphasized:
This finding has not been challenged, and since SIAC is the responsible fact-finding tribunal it is unnecessary to examine the basis of it. There was however evidence before SIAC that ‘upwards of a thousand individuals from the UK are estimated on the basis of intelligence to have attended training camps in Afghanistan in the last five years,’ that some British citizens are said to have planned to return from Afghanistan to the United Kingdom and that ‘The backgrounds of those detained show the high level of involvement of British citizens and those otherwise connected with the United Kingdom in the terrorist networks.’ It seems plain that the threat to the United Kingdom did not derive solely from foreign nationals or from foreign nationals whom it was unlawful to deport.40
The threat from British nationals, while smaller, was not qualitatively different from that posed by foreign nationals.41 Lord Nicholls thought that the legislature had given insufficient weight to the human rights of foreign nationals.42 Security considerations had not resulted in a similar deprivation of liberty for British citizens posing a similar security risk and the Home Secretary had indeed specifically rejected such a response as too draconian.43 Lord Hope saw two questions to be answered. The first was the effects of ATCSA detention on those affected. Secondly, given those effects and the way in which similar British citizen security threats were dealt with, could derogating from the right of those foreign nationals to liberty be said to be strictly necessary or instead to go beyond what was demanded by the exigencies of the public emergency?
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 … cannot touch because … they have a right to remain in this country. These include people whom … 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. … The Attorney General … 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 … 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. … 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.44
In short, the central complaint of the applicants on the necessity/proportionality issue was thus sustained by an overwhelming majority in the House of Lords. Given its findings on the evidence on the nature of the terrorist/security threat, SIAC had erred in law in deciding that the measures were strictly required by the exigencies of the emergency situation. It was not a conclusion to which it could properly come.45 ATCSA part 4 was not strictly required – it was unnecessary and disproportionate because if British citizen terrorist threats could be dealt with by measures short of detention, so could foreign nationals in the United Kingdom. Moreover, it was hard to see that the detainees were so very dangerous given that the United Kingdom was happy to let them go to any country that would take them.46
Lord Scott based his finding on SIAC’s failure to require the Home Secretary to demonstrate that lesser measures would have sufficed. The measures he had in mind were monitoring arrangements or movement restrictions less severe than incarceration in prison. This was perhaps something drawn on by the Home Office when formulating the PTA 2005, the response to their Lordships’ declaration of incompatibility in respect of ATCSA, section 23.
Lord Hoffman, given his decision on public emergency, declined to express an opinion on either the necessity/proportionality issue or that of discrimination.47 But, in a remark which points up his colleagues’ findings on these issues, he stated that he wished to avoid the impression that all that was necessary was to extend indefinite detention to British citizen terrorist threats.48 The view taken by the present author is that a legitimate reading of their Lordships’ findings on proportionality/necessity is that a proportionate response to the level of threat considered by the House would have been to subject foreign nationals to the restrictions then legally applied to British national terrorist suspects (for example, to the physical or electronic surveillance that the law then permitted). Such a reading has implications for the question whether control orders (the PTA 2005 response to the declaration of incompatibility) represent a proportionate interference with the ECHR rights and freedoms affected.
The discrimination issue There is some apparent interconnection with the previous issue, in that the evidentiary material and the conclusions to draw from it also have relevance to the question of discrimination. There is, however, a legal difference in that Art. 14 ECHR, the Convention’s discrimination provision tied to the areas covered by the rights and freedoms protected elsewhere in the Convention, was not an explicit subject of the Art. 15 Derogation Order. Moreover, an argument, maintained by government before SIAC, that it was subject to an implied derogation, was not pursued before either the Court of Appeal or the House of Lords.49
Art. 14 ECHR stipulates that the enjoyment of the rights and freedoms in the ECHR must be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The House (Lord Walker dissenting and Lord Hoffman declining to express a view) further held that the measures were discriminatory on grounds of nationality/national origin contrary to Art. 14 read with Art. 5 ECHR. Non-discrimination demands that ‘like cases be treated alike’. The key problem lies in setting the parameters for the appropriate grouping warranting equal treatment. This depends on the perspective or context in which one views the subject matter. If it is that of ‘immigration’, this produces no problems in terms of discrimination, since as the Government argued and the Court of Appeal accepted, national and international law on immigration (copiously analysed in Lord Bingham’s opinion) clearly permits differentiation between nationals and non-nationals. But if, as SIAC and House of Lords correctly thought, the proper perspective is that of ‘security’, the position changes. The key matter is identifying those warranting similar treatment as being similarly situated. The House held that the group similarly situated was composed of all those terrorist suspects threatening national security who could not be prosecuted and who could not for one legal reason or another be removed from the United Kingdom. That group comprised both British citizens and foreign nationals. National and international law says that one cannot deport one’s own citizens (one legal reason). The group also comprises foreign nationals whose removal is precluded by Art. 3 ECHR or its ICCPR equivalent (another legal reason). Since only the latter could be detained, this was unjustifiable discrimination.50 Baroness Hale encapsulated it well:
The foreigners have no right to be here and we would expel them if we could. We only have to allow them to stay to protect them from an even worse invasion of their human rights. Hence, he argued, the true comparison is not with suspected international terrorists who are British nationals but with foreign suspected international terrorists who can be deported. This cannot be right. The foreigners who can be deported are not like the foreigners who cannot. These foreigners are only being detained because they cannot be deported. They are just like a British national who cannot be deported. The relevant circumstances making the two cases alike for this purpose are the same three which constitute the problem: a suspected international terrorist, who for a variety of reasons cannot be successfully prosecuted, and who for a variety of reasons cannot be deported or expelled. Even then, the difference in treatment might have an objective justification. But to do so it must serve a legitimate aim and be proportionate to that aim. Once again, the fact that it is sometimes permissible to treat foreigners differently does not mean that every difference in treatment serves a legitimate aim. If the situation really is so serious, and the threat so severe, that people may be detained indefinitely without trial, what possible legitimate aim could be served by only having power to lock up some of the people who present that threat? This is even more so, of course, if the necessity to lock people up in this way has not been shown.
ATCSA Detention: the Scope of the Derogation
Although on its face ATCSA did not specifically limit the international terrorism covered or the groups concerned to Al Qaeda and associates, the Court of Appeal held that it was so limited as a matter of law. In M, Lord Woolf CJ said:
It is common ground that the Secretary of State’s powers under the 2001 Act are limited by the terms of the Human Rights Act 1998 (Designated Derogation) Order 2001, by which the United Kingdom derogated from Art. 5 of the ECHR. Accordingly, those powers cannot be exercised (except in accordance with the derogation) in respect of someone whom he does not reasonably suspect or believe to be a risk to national security because of his connection to the public emergency threatening the life of the nation –– namely the threat posed by Al Qa’ida and its associated networks. Thus it is not enough that the person detained may have had connections with a terrorist organisation. It must be a terrorist organisation which has links with Al Qa’ida.51
He had made the same point on narrowing an over-inclusive statutory provision in A and Others (the derogation issue), supported by Brooke and Chadwick LJJ.52 Brooke LJ confined the powers ‘to the threat posed by Al Qaeda and its associate networks (and no one else)’.53 In A and Others (the torture/merits issue),54 Pill LJ read the italicized words in Brooke LJ’s statement as merely confirming that the ATCSA detention scheme could not be deployed against foreign nationals belonging to other terrorist organizations, such as ETA or the Real IRA, and not as denoting anything about the notion of the requisite level of link to Al Qaeda. In that ‘torture’ case, the appeal from SIAC’s decision on the ‘merits’ of the detentions, the Court of Appeal held that SIAC had approached correctly, in a broad fashion consistent with the policy and rationale of ATCSA and the threat it sought to counter, this aspect of the appeals: groups covered and the necessary degree of link. The matter had to be dealt with in such a way as to reflect the reality of the way in which Al Qaeda operated.55 In consequence, a broad approach had to be taken to the meaning of the word ‘group’, to cover not just those with a formal structure but also informal, ad hoc groups, formed for temporary expediency, and to embrace the concept of networks.56 SIAC had thus correctly accepted the nature of Al Qaeda as a series of loosely connected operational and support cells. It accepted a general schematic diagrammatic description of this:
At the centre of an oval was Al Qu’eda, linked by arrows to the cardinal points where were marked four distinct but interlinked entities: the strategic decision-making structure, the base force for guerilla warfare in Afghanistan, the loose coalition of transnational terrorist and guerilla groups and the global terrorist network. Links around the circumference of the oval connected to those groups.57
In line with the policy and objects of ATCSA, SIAC had rightly rejected as too narrow the submission by the appellant detainees that the requisite link demanded support for the Al Qaeda aim of global jihad, expressed in the indiscriminate killing of civilians, or the core aims of global jihad against the West by terrorist means. Given an interdependent world and the international nature of the terrorist problem, the Court found that SIAC, like the House of Lords in Rehman, rightly accepted that the nation’s life could be threatened by attacks on friends, allies or countries forming a vital source of material, like oil, for the economy. The threat could be direct in the form of the disruption from attacks. It could also be indirect in terms of the strength gained by terrorists from such an attack. Consequently, as SIAC correctly characterized it,
The threat to the nation, which underlies the derogation, is posed by any of the various activities of Al Qaeda and those who are associated with it, whether or not they agree with all aspects of his global agenda or with the indiscriminate killing of civilians as a means or end. … The ‘international terrorist group’ contemplated by section 21 is Al Qaeda or a group associated with it, provided it is recognised that the very nature of the groups associated with Al Qaeda encompasses informal, even ad hoc, groups which can as easily or better be described as overlapping, loosely co-ordinated groupings or networks. Their purposes may overlap in part but not in whole, and they may not agree with all the means which another would use; but that does not prevent them being part of the threat to the life of the nation as a matter of principle or law. It is that connection to Al Qaeda which provides the threat.58
Given the nature of Al Qaeda, the legislature could not have intended a relatively narrow meaning of ‘group’.59 It was thus not possible to define the requisite connection between groups in terms of more than one remove or link being insufficient connection.60 The Court endorsed SIAC’s findings on the overlapping groups or cells at issue in the appeals:
We accept the broad assessment by the Respondent that there is a network, largely of North African extremists, in this country which makes up a number of groups or cells with overlapping members or supporters. They usually have origins in groups which had or may still have a national agenda, but whether that originating group does or does not have a national agenda, whether or not it has direct Al Qaeda links, whether or not the factions are at war in the country of origin, such as the GIA and GSPC in Algeria, those individuals now work together here. They co-operate in order to pursue at least in part an anti-West terrorist agenda. Those less formal groups are connected back to Al Qaeda, either through the group from which they came which is part of what can be described as the Al Qaeda network, or from other extremist individuals connected to Al Qa’eda who can be described as part of Al Qaeda itself or associated with it. They are at least influenced from outside the United Kingdom. These informal, ad-hoc, overlapping networks, cells or groups constitute ‘groups’ for the purpose of the 2001 Act.61
For similar reasons, hard and fast distinctions should not be made for ATCSA purposes between membership, support and assistance.62 This line of analysis enables SIAC to take an approach differentiating between terrorist groups. So in M, the Court upheld SIAC’s right to conclude that while M was an international terrorist within the meaning of ATCSA, he could not be detained under that Act because there was no reasonable suspicion linking him with Al Qaeda or an associated group.63 The same would have been true of the connection of F and Ajouaou, two of the appellants in A and Others (the torture/merits case), to the Algerian group, GIA. But in each case detention was upheld because SIAC was satisfied also of their links with another Al Qaeda-connected group, the GSPC, and the similarly connected looser group based around Abu Doha, a terrorist with Al Qaeda links.64
ATCSA Detention: Scrutiny of the Merits, the Proper Approach to Matters of Proof and Due Deference
To certificate a foreign national under the scheme the Home Secretary had to both reasonably suspect that the person was a terrorist and reasonably believe that their presence in the United Kingdom was a threat to national security.65 Their indefinite detention could then be authorized if removal was prevented by international obligation or some practical reason.66 In line (as they saw it) with judicial pronouncements in Rehman and the greater impact on rights that detention had, the detainees argued in A and Others (the torture/merits case)67 that a very high standard of scrutiny had to be applied by SIAC, at the very least in terms of the factual basis for the allegation that the individual was a terrorist. They argued that substantial investigation was required to ground reasonable suspicion. In stating that the standard the Secretary of State had to meet was not a demanding one, SIAC erred in law. The Court of Appeal did not accept that. They relied on M,68 another Court of Appeal decision in which SIAC’s quashing of the certificate was upheld. In M, Lord Woolf stated that the task of SIAC
… is not to review or ‘second–guess’ the decision of the Secretary of State but to come to its own judgment in respect of the issue identified in section 25 of the 2001 Act. … SIAC is required to come to its decision as to whether or not reasonable grounds exist for the Secretary of State’s belief or suspicion. Use of the word ‘reasonable’ means that SIAC has to come to an objective judgment. The objective judgment has however to be reached against all the circumstances in which the judgment is made. There has to be taken into account the danger to the public which can result from a person who should be detained not being detained. There are also to be taken into account the consequences to the person who has been detained. To be detained without being charged or tried or even knowing the evidence against you is a grave intrusion on an individual’s rights. Although, therefore, the test is an objective one, it is also one which involves a value judgment as to what is properly to be considered reasonable in those circumstances.69
SIAC’s composition and experience, and its examination of all the security evidence relied on by the Home Secretary, probed and tested by the Special Advocate in a way not possible before the Home Secretary, all combined to make SIAC qualified to make the value judgments involved. Those judgments had to be made in light of the material available at the date of the hearing.70 In A and Others, the Court of Appeal, following Rehman, rejected the utility of notions of burden of proof. SIAC’s ‘unfortunate’ statement on standard was characterized as one trying to draw comparison with those provided in other judicial proceedings rather than a departure from the test in ATCSA. Although the context (indefinite detention without trial) was different from Rehman (deportation), Pill LJ adopted Lord Hoffman’s approach in that case: the matters were ones of evaluation and judgment. While in some circumstances specific acts might have to be proved, what really mattered was SIAC’s own assessment of the whole picture.71 SIAC did not have to be satisfied on the balance of probabilities that the detainee was either a threat to national security or a terrorist. The matter of whether there are reasonable grounds respectively to believe or suspect those things was one of ‘assessment’.72 It was clear that SIAC had been aware of the need for a ‘close and penetrating analysis of the material including the assessments and inferences’ and had undertaken that.73 As regards the Rehman requirement of due deference in a national security context, the Court held that SIAC got this right by according due weight, not unquestioning adherence to the Home Secretary’s views and assessments.74
The points made on due deference, applying Rehman, span the national security spectrum of decision-making. Rehman sets the standard of review for SIAC and national security deportations. Those set in A and others and M on the standard of scrutiny are at first sight context-specific, dealing with the wording of SIAC’s powers under ATCSA. Given similar wording they would apply also to the role of the High Court in dealing with derogating control orders, where the High Court again has to make its own decision on the basis of material as at the date of the relevant hearing (without notice or adversarial/contested). An attenuated standard is, however, applicable when that Court deals with the matter of the making of a non-derogating control order. That level of review was criticized as deficient by the JHRC, and by a number of bodies giving evidence to it.75 The scope of that standard of court supervision and its compatibility with ECHR requirements were dealt with recently by Sullivan J and the Court of Appeal in MB, with the latter rather enhancing the High Court’s powers in order to effect compatibility with Convention Rights. The case is examined later in the context of ‘fair trial’ issues.
PTA 2005: Policing the Line between Non-derogating and Derogating Control Orders
Under the PTA 2005 a clear distinction in law is made between ‘non-derogating’ and ‘derogating’ control orders. The former can encompass only restrictions falling short of a deprivation of liberty within the meaning of Art. 5 ECHR. The decision to go for one is made initially by the Home Secretary who must then apply for permission to make one to the Administrative Court (the branch of the High Court which deals with the matter) which is empowered only to reject them if the decision to make one was obviously flawed in the light of the principles of judicial review.76 This is a much lower empowerment of the court when contrasted with that under ATCSA or national security deportation. It is also significantly lower than that applicable to derogating control orders.