The incompatibility of indefinite detention
A and others v Secretary of State for the Home Department [2004] UKHL 56, 16 December 2004
This appeal concerned nine individuals who had been detained without trial or charge as suspected international terrorists under section 23 of the Anti-Terrorism, Crime and Security Act 2001 (ATCSA). The nine-strong Appellate Committee of the House of Lords handed down the decision just days before the third anniversary of the detention of most of them.
It is one of the most important constitutional cases in recent years and the most important test of the Human Rights Act 1998 (HRA) to date.
The ATCSA empowers the home secretary to detain indefinitely, without charge, a person he believes to be a terrorist and a risk to national security if that person cannot be removed from the country, for example, because he will suffer torture or inhuman or degrading treatment in the country to which he might be removed.
The Act provides no similar measures in respect of British nationals. Such detention would be a breach of article 5 of the European Convention on Human Rights (ECHR), which guarantees everyone's right to liberty of the person. Although article 5 allows certain limited exceptions, none applied to these individuals - the only possible candidate, detention of 'a person against whom action is being taken with a view to deportation' could not apply, because deportation proceedings were not actually in progress, since the appellants were conceded to be irremovable.
Section 14 of the HRA allows the executive to make an order derogating from convention rights, and section 1(2) provides that convention rights are to have effect in the UK subject to any such derogation. Therefore, the home secretary made an order under section 14, derogating from article 5.
In these proceedings the internees challenged the derogation order and sought a declaration that section 23 was incompatible with their convention rights.
Article 15 of the convention governs derogation. Although not one of the incorporated convention rights, it was common ground that the domestic derogation order had to meet the tests laid down by that article, which provides: '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.'
The Lords had to decide whether:
For the home secretary, the Attorney-General argued that the courts should pay considerable deference to the judgement of the executive on matters of national security. The majority of the Law Lords was prepared to do so on the question of the existence of a public emergency threatening the life of the nation, holding that such an emergency did indeed exist. This, said the Lords, was essentially a political judgement, which the courts were ill-equipped to review, save in the clearest of cases.
But the majority was not prepared to afford the home secretary the same latitude when considering whether the measures taken were proportionate. This, said the majority, was a matter more readily within its competence. Lord Hope explained that although the government and Parliament are to be given a margin of appreciation in deciding on matters of national security, the degree of scrutiny is determined by the context. Here the context is the fundamental right of liberty, and any interference with that right must be accorded 'the fullest and most anxious scrutiny'.
The government had relied on Strasbourg case law, which appeared to afford national authorities a wide margin of appreciation. But, the majority explained, Strasbourg allowed this latitude largely on the understanding that national courts would exercise strict scrutiny of the proportionality of domestic measures. For this reason, too, the courts had to be vigilant to protect personal liberty.
Dealing with the substance, the majority held that indefinite internment without charge or trial was not proportionate, for a number of reasons. First, on its face section 23 empowered the home secretary to intern people who constituted no present threat to security. Second, the Act required the release of a person who could find another country that would receive him. Why, the majority asked, should a suspected terrorist be less of a threat if he were in France (where one former internee had gone) than if he were in the UK?
And finally, the majority could see no reason why, if the government considered such measures necessary for foreigners, they considered them 'too Draconian' and 'hard to justify' for British nationals, who could not be interned. Although the threat from home-grown terrorists might be quantitatively smaller, it was qualitatively the same, and if internment was not necessary for British nationals, it could not be justified for foreigners. Therefore, the absence of detention for UK nationals showed that detention of foreigners could not be justified.
The Lords considered separately the question of whether section 23 was incompatible with article 14 of the ECHR, the non-discrimination provision (and the equivalent provisions of the International Covenant on Civil and Political Rights). They did this for three reasons: first, because (as earlier) the discriminatory nature of the provision was relevant to its proportionality; second, because the home secretary had not derogated from article 14, and therefore there remained the question of whether section 23 was compatible with it; and third because a measure that violated the UK's international human rights obligations on equality was not a valid derogation under article 15.
The government argued that UK nationals were not in a comparable position, because the UK could not deport its own nationals. Accordingly, it said, the proper comparison was with foreign nationals who could be removed. The majority rejected this comparison. Suspected international terrorists who are non-UK nationals and irremovable should be compared with those who are UK nationals, because they share the most relevant characteristics in the present context. To compare them with suspected terrorists who could be removed would be to accept the correctness of the secretary of state's choice of immigration control as a means to address the security problem. However, that difference was irrelevant to the issue as to what measures are required to combat the threat of terrorism that their presence in the country might present.
On this aspect of the case, it was not merely the detention that had to be justified, but the difference of treatment between nationals and foreigners. Having considered the substantial volume of comment on the measures - by the Newton Committee, the Joint Select Committee on Human Rights, the Council of Europe Commissioner on Human Rights and the UN Human Rights Committee - Lord Bingham (with whom the majority agreed) concluded that: 'These materials are inimical to the submission that a state may lawfully discriminate against foreign nationals by detaining them but not nationals presenting the same threat in a time of public emergency.'
It followed that the derogation order had not been validly made - although the majority accepted the existence of a public emergency, indefinite internment was not a proportionate response and was incompatible with the UK's international law obligations on equality. The derogation order was quashed. And therefore, section 23 was not protected by the derogation and was declared incompatible with articles 5 and 14 of the convention.
What is the effect of these orders? In legal terms, none at all. The HRA provides that a declaration of incompatibility does not affect the validity or continuing operation of the incompatible provision. Moreover, the home secretary does not act unlawfully under the HRA by enforcing or giving effect to section 23.
The HRA has preserved parliamentary sovereignty by providing that even if a court declares a statutory provision incompatible with convention rights, a public authority is protected if it gives effect to it.
The government will need to decide whether it wants to stand by the provision or replace it with measures that are compatible with convention rights. If it sits on its hands, the internees will go to the Strasbourg Court, which is highly unlikely to find for the UK in the face of the government's resounding defeat in the House of Lords.
Moreover, in Strasbourg, the government faces the prospect of being ordered to pay compensation for over three years' unlawful detention. The government's response to the Lords' decision will be an important test of its continuing commitment to the Act it introduced in its first term.
By Stephen Grosz, Bindman & Partners, London
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