Articles & Judgments Human Rights A Victory For Human Rights? 
| A Victory For Human Rights? |
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| Monday, 22 August 2005 10:49pm | |
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by Valerie Yeo* An Analysis of the Case of A (FC) & Others (F) v Secretary of State for the Home Department, X (FC) & Another (FC) v Secretary of State for the Home Department On 16 December 2004, the House of Lords delivered its long awaited and landmark judgment in respect of human rights and national security law in the case of A (FC) & Others (F) v Secretary of State for the Home Department, X (FC) & Another (FC) v Secretary of State for the Home Department.1. The decision of the House of Lords in this case was in respect of Part 4 of the Anti-Terrorism, Crime and Security Act 2001 (‘the ATCSA 2001’), specifically the power of the Home Secretary, under Section 23 of the ATCSA 2001, to detain without trial non-nationals of the United Kingdom who are suspected of being international terrorists. This decision was greeted as a great victory for human rights as the House of Lords basically held that Section 23 of the ATCSA 2001 was discriminatory against non-UK nationals and breached the obligations imposed on the United Kingdom by virtue of international law and further held that Section 23 of the ATCSA 2001 was incompatible with certain provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). There is no doubt that this was an extremely important case. This is evidenced by the fact that no less than nine2 Law Lords heard and decided this appeal. The fact that this was a decision by the highest court of the United Kingdom, home of the common law, and in respect of the legality of a major new post-11 September 2001 (‘9/11’) anti-terrorism piece of legislation and of a power that many governments regard as being instrumental in combating terrorism especially in the aftermath of the attacks of 9/11, means that this judgment deserves to be studied more carefully. To do so effectively, it would be beneficial to look at:-
The circumstances that led to the passing of the ATCSA 2001 Although terrorism is not a new problem3, the scale and dimension of terrorist attacks changed irrevocably, in February 1998, when Osama bin Laden, the leader of al-Qaeda, and his closest comrade-in-arms, Ayman al-Zawahiri, publicly issued a fatwa in the name of the World Islamic Front, which was arranged to be published in an Arabic language newspaper in London, calling for the killing of every American on earth4. This was followed by a number of interviews and messages by bin Laden which reinforced the contents of the February 1998 fatwa.5 Although the initial role played by al-Qaeda was in providing training, weapons and financial assistance to any terrorist group that planned to attack Americans,6 this soon changed after Bin Laden fled Sudan for Afghanistan and received covert support from the Taliban regime which was then ruling Afghanistan. Between 1993 and 1998, Bin Laden began to play an active role in plans which would eventually lead to the near-simultaneous truck-bombing of two American embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, respectively on 7 August 1998. Although none of the 11 people killed in the Tanzanian embassy bombing were Americans, the Kenyan embassy bombing claimed the lives of 12 Americans and 201 others, almost all of whom were Kenyans. In addition, a further 5,000 people were injured. This success emboldened al-Qaeda and was soon followed by the bombing of the American guided missile destroyer, USS Cole, as the ship was in the Yemeni port of Aden on 12 October 2000. This attack claimed the lives of 17 sailors and injured 39 others. It is arguable that the weak response by the then Clinton administration to these attacks was a factor in encouraging al-Qaeda and those who supported it to plan more ambitious and destructive attacks on America. There is no doubt that the heinous attacks of 9/11 on both the World Trade Centre and the Pentagon by al-Qaeda operatives represent the high water marks of terrorism as well as being, as at the date hereof and in terms of the number of victims killed7, the most successful terrorist attack ever launched in modern history. The scale of the 9/11 attacks shocked and horrified people all over the world. It also led to many governments passing new laws in the area of national security and anti-terrorism which in all cases greatly strengthened the power of the executive branch in taking action against and/or detaining those suspected of committing, aiding or abetting or supporting any kind of terrorist activity. As the main ally of the United States of America, the government of the United Kingdom was rightly concerned that it would not be too long before that country too suffered a catastrophic terrorist attack. This concern was heightened and justified by periodic reports of taped messages from the leader of al-Qaeda, Osama bin Laden, which not only praised the perpetrators of the 9/11 attacks but also gave dire warnings to all who supported the United States of America8. Against such a background, it is easy to see what led the British government to pass new national security laws such as the ATCSA 2001 and earlier, the Terrorism Act 2000. The ATCSA 2001 The ATCSA 2001 was presented to Parliament by the British Government on 12 November 2001, was swiftly passed by Parliament and received the Royal Assent on 14 December 2001. Out of all the provisions of the ATCSA 2001, the part that came in for the heaviest criticism both by members of the legal profession involved in human rights law as well as human rights organisations such as Amnesty International9 and the National Council for Civil Liberties (‘Liberty’)10 was Part 4 of the ATCSA 2001, entitled ‘Immigration and Asylum’, specifically Section 23, which was also the provision being challenged in the House of Lords. The commencement date of Part 4 of the ATCSA 2001 was 14 December 2001. The most relevant provisions of Part 4 for the purposes of this article are Sections 21, 22 and 23 of ATCSA 2001, particularly Section 23. Section 21 of the ATCSA 2001 reads as follows:- ‘21. Suspected international terrorist: certification
As a matter of clarification, Section 1 of the Terrorism Act 200011 defines ‘terrorism’ as ‘the use or threat of action where the action falls within subsection (2) of Section 1 of the Terrorism Act 200012‘, the use or threat is designed to influence the government or to intimidate the public or a section of the public13 and the use or threat is made for the purpose of advancing a political, religious or ideological cause.14 To continue, Section 22 of the ATCSA 2001 reads as follows:- ‘22. Deportation, removal etc.
Among the actions specified in subsection (2) of Section 22 of the ATCSA 2001 is the making of a deportation order. Section 23(1) of the ATCSA 2001, which is the provision most directly challenged in this case, provides as follows:- ‘23. Detention
Section 23 of the ATCSA 2001, therefore, enabled a suspected international terrorist who was a non-U.K. national to be detained indefinitely in the event he/she could not be deported from the United Kingdom for either of the reasons stated in Section 23(1)(a) or (b) of the ATCSA 2001, for example, if the deportation of such a person would be a breach of Article 3 of the ECHR which provides that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’. It should be noted that Section 23 of the ATCSA 2001 represented a departure from the usual legal position under Article 5(1)(f) of the ECHR (which should be read together with Article 1 of the ECHR which states that all ECHR contracting states undertake to secure ECHR rights and freedoms to ‘everyone within their jurisdiction’) which essentially stated that a person may only be detained during the process of his/her deportation from the United Kingdom, which was also a position upheld by European case law. Among the more important domestic and European cases which upheld this point respectively were R v Governor of Durham Prison, ex p Singh15 and Chahal v United Kingdom16. In the first case, it was held that the power to detain a non-national is limited to such time as is reasonable to enable the process of deportation to be carried out. It was also held that deportation should follow promptly upon the making of a deportation order. Therefore, this meant that the power of detention of a non-national should not be exercised unless the non-national in question could be deported within a reasonable time. As a consequence of this decision, it has been generally accepted that under the Immigration Act 1971, it is not possible to detain someone pending deportation unless it was known that a deportation is possible. In the Chahal case, it was held by the European Court of Human Rights that to deport someone who, if the order of deportation was executed, could suffer torture would constitute a violation of Article 3 of the ECHR. The court also made it clear that detention for an excessive period would be a breach of Article 5(1) of the ECHR. After Chahal, the legal position was not in dispute. It was accepted that the Home Secretary could only detain a non-national pending deportation, when such detention was necessary for national security reasons, if the deportation could be carried out within a reasonable time, but not otherwise. The ATCSA 2001 further makes provision for the grant of bail17 by the Special Immigration Appeals Commission (SIAC)18, for appeal to SIAC against certification by a certified suspected international terrorist,19 for periodic reviews of certification by SIAC,20 for periodic reviews of the operation of Sections 21 to 23 of the ATCSA 200121 and most importantly, for the expiry (subject to periodic renewal) of Sections 21 to 23 and for the final expiry of those sections, unless renewed, on 10 November 2006.22 In addition to the enactment of the ATCSA 2001, the British Government also made the Human Rights Act 1998 (Designated Derogation) Order 2001 (‘the Derogation Order’) by which the United Kingdom gave notice to the Secretary General of the Council of Europe of the proposed derogation of the United Kingdom from its obligations under the ECHR.23 The Derogation Order was made in pursuance of Article 15 of the ECHR (‘Article 15’) which provides as follows:-
In addition to informing the Secretary General of the Council of Europe, the derogating member state must also inform that official of the measures the state has taken and the reasons for doing so. The derogating member state must also inform the Secretary General of the Council of Europe when the measures have ceased to operate and the provisions of the Convention are again being fully executed. Although Article 15 is not expressly incorporated into British domestic law by the Human Rights Act 1998, Section 14 of the Human Rights Act 1998 does make provision for prospective derogations by the United Kingdom to be designated for the purposes of the Act in an order made by the Secretary of State. Therefore, it was in exercise of this power that the Home Secretary made the Derogation Order on 11 November 2001, which came into effect two days later. The Derogation Order was in respect of Article 5(1)(f) of the ECHR which states as follows:-
Therefore, according to Article 5(1)(f), and contrary to Section 23(1) of the ATCSA 2001, no non-U.K. national, whom the Home Secretary wishes to have removed from the United Kingdom, may be detained indefinitely. Such a person may be detained only pending his/her deportation. Otherwise, Article 5(1)(f) of the ECHR is considered to have been breached. The facts of the case Exercising the powers granted to him under Part 4 of the ATCSA 2001, the Home Secretary issued the Section 21 of the ATCSA 2001 certificate in respect of eight of the appellants on 17 or 18 December 2001. These eight appellants were subsequently detained under Section 23 of the ATCSA 2001 on 19 December 2001. The ninth appellant had his certificate issued on 5 February 2002 and was detained on 8 February 2002. Two of the eight appellants who were detained in December 2001 exercised their right to leave the United Kingdom; one went to Morocco on 22 December 2001 and the other to France on 13 March 2002. All of the nine appellants were non-UK nationals and none was the subject of any criminal charge. The appellants exercised the right of appeal to SIAC granted to them under Section 25 of the ATCSA 2001. In their appeal to SIAC, the appellants challenged every aspect of their detention. One of the appellants main arguments, and the one on which the appellants appeal before SIAC was upheld by SIAC, was that they had been discriminated against in being detained. The appellants argued that Part 4 of the ATCSA 2001 and the Derogation Order were discriminatory based on the fact that they allowed only suspected terrorists who were non-UK nationals to be detained whereas there are equally dangerous UK nationals who are in the exact same position as the appellants but who were not detained. They also argued that such discrimination was a breach of Article 14 of the ECHR which states that
It should be noted that the Derogation Order did not include derogation from Article 14 of the ECHR. The respondents subsequently appealed SIAC’s decision to the Court of Appeal pursuant to Section 27 of the ATCSA 2001 which stated that the decisions of SIAC are subject to a further appeal but only on a point of law. Before the Court of Appeal, the appellants made several primary submissions, of which the more important ones are as follows:-
In response to the above submissions, the Court of Appeal24 held as follows (per Lord Woolf, CJ):-
The Court of Appeal also pointed out that the critical question that should be asked in this instance was ‘Are there objective, justifiable and relevant grounds’ for the Home Secretary’s decision to make the distinction he did. The court held that in this case, the question should be answered in the affirmative due to the fact that non-nationals have no right of abode in the United Kingdom, unlike nationals.
The appellants subsequently appealed to the House of Lords. The appellants challenged the lawfulness of their detention and argued that ‘such detention was a breach by the United Kingdom of the obligations imposed on that country by the ECHR and that the United Kingdom was not legally entitled to derogate from those obligations; that even if it was entitled to derogate, such derogation was inconsistent with the ECHR and so was ineffectual to justify their detention and finally, that the statutory provision on which their detention is based is incompatible with the ECHR’. The judgment of the House of Lords The leading judgment in this appeal was delivered by Lord Bingham. The first major issue addressed by the court was whether the Derogation Order satisfied the requirements laid down in Article 15 of the ECHR (i.e. was there was a ‘public emergency threatening the life of the nation’ and secondly, whether the derogating measure was proportional to the emergency faced and finally, the derogating measure must not be ‘inconsistent with [the derogating state]’s other obligations under international law’), which the appellants argued it did not. According to the appellants’ submissions, there had been no public emergency threatening the life of the nation27 for three reasons: firstly, if the emergency was not actual, it must be shown to be imminent (which could not be shown in this case); secondly, it must be temporary (which again could not be shown here); and finally, the practice of the other countries in the European Union, none of whom had exercised their right of derogation. In response to these submissions, the court held that this threshold test of Article 15 of the ECHR had been satisfied. The court pointed out that in the case of Lawless v Ireland (No. 3), the European Court had no problem in concluding that the threshold test of Article 15 of the ECHR had been satisfied although the extent of the losses suffered in that case were unclear and were in any case definitely lower than the losses caused by the 9/11 attacks. As such, the British Government was undoubtedly justified in concluding that there was such a public emergency in the United Kingdom in the light of the 9/11 attacks. The court also decided that ‘great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament’ on this issue as this was a political and not a legal question. As to the question of proportionality, the court upheld the appellants’ contention that the Derogation Order and Section 23 of the ATCSA 2001 are disproportionate to the threat posed as it allowed non-national suspected terrorists to leave the country ‘with impunity’ while leaving British suspected terrorists at large. Under this heading, the appellants’ submissions that the Derogation Order and Section 23 of the ATCSA 2001 had been disproportionate had essentially been as follows:-
In response to submission (a) above, the court acknowledged that SIAC had evidence presented before it that showed ‘beyond argument’ that there was a serious threat to the security of the United Kingdom caused predominantly, albeit not exclusively, and more immediately from foreign nationals. The court also upheld this submission of the appellants as the same was not challenged by the respondents. In respect of submission (b) above, the court also upheld the appellants’ submission and agreed that it was ‘clear’ from the language of Section 21 of the ATCSA 2001, read together with the definition of ‘terrorism’ in Section 1 of the Terrorism Act 2000, that Section 21 of the ATCSA 2001 is ‘capable of covering those who have no link with al-Qaeda. The court also held that it was irrelevant that other sections of the ATCSA 2001 did apply to British nationals as those sections were not subject to the derogation, applied equally to foreign nationals and were not the subject of the appeal. As for submission (c) of the appellants, the court also upheld the appellants’ submission on this point and found that ‘it is hard to see’ why measures which have been used effectively for British suspected terrorists could not be applied equally to non-nationals suspected of being terrorists. Among the steps listed by the court are the wearing at all times of an electronic monitoring tag by the suspect concerned, the requirement that the suspect not have any computer equipment, mobile telephone or other electronic communication device and installation at the suspect’s premises of a dedicated telephone line permitting contact only with a designated security company and the removal of the suspect’s existing telephone line.28 Submission (d) above was the submission most heavily challenged by the respondents. The respondents submitted that as it was Parliament and the executive who were responsible for assessing a threat to the nation, so it was that it was those two bodies, and not the courts, who were responsible for deciding what course of action should be taken to address the particular threat. The court declined to uphold the respondents’ challenge to the appellants’ submission as stated in (d) above on the grounds that Parliament had expressly legislated in Section 6 of the Human Rights Act 1998 to ‘render unlawful any act of a public authority, including a court, incompatible with a Convention right’ and in Section 3 of the Human Rights Act 1998, has required courts, as far as possible to give effect to ECHR rights and conferred on courts a right of appeal on derogation issues. As such, the court held that the Derogation Order and Section 23 of the ATCSA 2001 failed the proportionality requirement of Article 15 of the ECHR. The court also stated that the court could not approach questions of proportionality as questions of pure fact, which the Court of Appeal had earlier done. The appellants had also submitted that Section 23 of the ATCSA 2001 was discriminatory as it was only targeted towards non-national suspected terrorists and that as such, it was a breach of Article 14 of the ECHR. The appellants also submitted that Section 23 of the ATCSA 2001 discriminated against them in their exercise of their right to liberty under Article 5 of the ECHR. The court addressed this submission by first pointing out that being foreigners did not preclude the appellants from claiming the protection of the ECHR, as under Article 1 of the ECHR, the contracting states undertook to secure the rights under the ECHR ‘to everyone within their jurisdiction’. The court then pointed out that the United Kingdom did not, either expressly or impliedly, derogate from Article 14 of the ECHR or the corresponding Article 26 of the International Convention of Civil and Political Rights (‘the ICCPR’). Addressing the issue of discrimination, the court pointed out that to determine if a certain measure was discriminatory, the questions that are to be asked are those expressed in the case of R (S) v Chief Constable of the South Yorkshire Police29 and are as follows:-
In answering questions (1) and (2) above, the court held that the facts of the case clearly fall within Article 5 of the ECHR and the appellants were treated differently from non-national suspected terrorists who could be removed and from U.K. citizens who were suspected terrorists and could not be removed. Thus, there was no doubt that the difference in treatment was on the grounds of nationality or immigration status (which was one of the proscribed grounds under Article 14 of the ECHR). The respondents had submitted that the chosen comparators to the appellants should be non-U.K. nationals who were suspected terrorists but could be removed from the United Kingdom whereas the appellants had submitted that the chosen comparators should be suspected terrorists who were U.K. nationals as this group also could not be removed from the country. The court pointed out that a chosen comparator had, on the authority of R (Carson) v Secretary of State for Work and Pensions30 to satisfy the question as to whether their two circumstances were so similar ‘as to call in the mind of a rational and fair minded person for a positive justification for the less favourable treatment of one party in comparison with the other party’. In this case, the House of Lords upheld the appellants’ submission as ‘in the present context, they [i.e. U.K. nationals who were suspected terrorists] share the most relevant characteristics of the appellants’. The court also differed from the Court of Appeal that there were ‘objective and reasonable justification for the differential treatment of the appellants’. Thus, the House of Lords upheld the appellants submission that Section 23 was discriminatory due to the fact that Article 14 of the ECHR had not been derogated from and thus remained in full force and effect and effectively prohibiting discrimination on the grounds of nationality. The court pointed out that ‘what has to be justified is not the measure in issue but the difference in treatment between one person or group and another’. In the court’s judgment, it was a violation of Article 14 of the ECHR to detain one group of suspected terrorists on the grounds of their nationality or immigration status and not another. As a result of the above findings, the House of Lords allowed the appellants’ appeal. Consequently, an order quashing the Derogation Order and a declaration under Section 4 of the Human Rights Act 1998 that Section 23 of the ATCSA 2001 is incompatible with Articles 5 and 14 of the ECHR insofar as it is disproportionate and discriminatory on the grounds of nationality was issued. A Comment on the judgment of the House of Lords There is no doubt that the House of Lords decision in A (FC) & Others (F) v Secretary of State for the Home Department and X (FC) & Another (FC) v Secretary of State for the Home Department overjoyed many human rights advocates and was a triumph for human rights over the security concerns of the State. The decision of the House of Lords effectively undermined a major plank in the British government’s anti-terrorism efforts. However, it is submitted that the Court of Appeal decision was the better decision for several reasons. Firstly the evidence in this case clearly showed that there existed a grave threat against the security of the United Kingdom from foreigners who were suspected terrorists. Although the threat to the security of the United Kingdom did not emanate exclusively from this group, they undoubtedly posed a grave security risk to the United Kingdom. As this group was a recognised threat, the question then arose as to what measures should be taken to address this threat. One of the appellants’ arguments was that an immigration measure (i.e. deportation) was used to address a security threat. However, the deportation of non-citizens from a sovereign country has always been governed by immigration legislation. An important point that should be borne in mind and which was pointed out by the Court of Appeal, was that foreigners had no right of abode in a country of which they were not citizens. Only the citizens of a country have a right of abode in that country. Foreigners merely have a right not to be removed. Furthermore, it should be borne in mind that all sovereign states have the right to control who can or cannot be allowed to enter and stay in its country. Due to the above, it is also submitted that the respondent’s submission that the chosen comparator in this case should be other foreign citizens who also present a threat to the security of the United Kingdom but can be removed is correct. The case of R (Carson) v Secretary of State for Work and Pensions required that a chosen comparator satisfy the question as to whether their two circumstances were so similar ‘as to call in the mind of a rational and fair minded person for a positive justification for the less favourable treatment of one party in comparison with the other party’. In this case, the similarity of the two groups according to the respondent’s submission is found in the fact that both groups are foreigners and both groups presented a threat to the security of the United Kingdom. The only difference between the two groups was that one group could not be removed from the United Kingdom for the time being due to Article 3 of the ECHR. The comparator submitted by the appellants and upheld by the House of Lords (i.e. British citizens who were also suspected terrorists but could not be removed from the United Kingdom due to the fact that they were British citizens) is submitted to be faulty. This is because the non-removal of foreign suspected terrorists such as the appellants is only temporary unlike British citizens suspected of being terrorists. Foreign suspected terrorists such as the appellants may be removed or deported from the United Kingdom at such time when there is no possibility of Article 3 of the ECHR being breached. This was clearly evidenced by the fact that two of the appellants had chosen voluntarily to leave the United Kingdom. Unlike the appellants, a British citizen suspected of being a terrorist, can never be subjected to deportation from the United Kingdom. In other words, the appellants cannot be deported from the United Kingdom only for the time being unlike British citizens who cannot be deported at all. As such, it is submitted that Section 23 of the ATCSA 2001 is not discriminatory. Consequences of the judgment of the House of Lords As at early March 2005, it has been reported in the media that the British government, in response to the House of Lords judgment, is attempting to pass a new piece of anti-terrorism legislation currently entitled the ‘Prevention of Terrorism Bill’. Under this bill, it is proposed that both British citizens and foreigners who cannot be deported from the United Kingdom and are suspected of international terrorism could be subjected to house arrest, curfews or electronic tagging.31 Unfortunately, this bill came in for some fierce criticism when it was discovered that it was proposed that it was the Home Secretary and not a judge who would determine who would be subject to a ‘control order’ authorising a suspect to be placed under house arrest. On Monday, 28 February 2005, the government backed down and amended the much-criticised provision so that a judge would be authorised to hear an application on placing a suspect under house arrest within 24 to 48 hours.32 As at the date of this writing, the Bill is currently being debated by the British Parliament. Conclusion The decision of the House of Lords in this case was clearly of great significance as can be seen in the British government having to put forward a new piece of anti-terrorism legislation. It remains to be seen if this new legislation is passed by Parliament, and if it is, whether it will be successful in preventing or minimizing terrorist attacks while at the same time upholding the principles of human rights. Footnote * Advocate & Solicitor, LL.B (Hons.) (Lond.), CLP, LL.M (Mal.) 1 [2004] UKHL 56 2 The nine Law Lords who heard this appeal were (i) Lord Bingham of Cornhill, (ii) Lord Nicholls of Birkenhead, (iii) Lord Hoffman, (iv) Lord Hope of Craighead, (v) Lord Scott of Foscote, (vi) Lord Rodger of Earlsferry, (vii) Lord Walker of Gestingthorpe, (viii) Baroness Hale of Richmond, and (ix) Lord Carswell. 3 The word ‘terrorism’ entered into the popular lexicon after the French Revolution in 1789 as in the early years after the revolution, the French revolutionary government usually used force and violence to impose a radical new order on a reluctant citizenry. In 1798, the Academie Francaise defined ‘terrorism’ as the ‘system or rule of terror’. 4 The fatwa, stated that the killing of Americans was ‘the individual duty of every Muslim who can do it in any country in which it is possible to do it’ (see page 47 of the Final Report of the National Commission on Terrorist Attacks Upon the United States). 5 For example, an interview given three months later in Afghanistan for ABC-TV where Bin Laden stated, inter alia, that ‘we do not have to differentiate between military or civilian. As far as we are concerned, they are all targets’. 6 For example the December 1992 bombing of two hotels in Aden which were routinely visited by American troops en route to Somalia was carried out by members of a terrorist group headed by a Yemeni member of al-Qaeda. In addition, the four perpetrators of the November 1995 bombing of the joint American-Saudi Arabian facility used to train the Saudi national guard (which claimed the lives of five Americans and two Indian officials), admitted that they had been inspired by Bin Laden and it was later discovered that al-Qaeda had a year earlier shipped explosives to Saudi Arabia as they had planned to attack an American target in that country and some of Bin Laden’s associates later took credit for this attack. 7 As of 16 September 2004, the total number of victims killed in the 9/11 attacks were 2,996 people, which comprised 2,948 dead, 24 reported missing and a further 24 reported dead. 8 See for example, the taped message of 12 February 2003 by Osama bin Laden, in which he stated, inter alia, that ‘We also point out that whoever supported the United States, including the hypocrites of Iraq or the rulers of the Arab countries, those who approved their actions and followed them in this crusade war by fighting with them or providing bases and administrative support, or any form of support, even by words, to kill Muslims in Iraq, should know that they are apostates and outside the community of Muslims. It is permissible to spill their blood and take their property.’ 9 See for example, the article by Livio Zilli, of Amnesty International in Issue 23 of The Barrister, entitled ‘Amnesty International’s Concerns About Part 4 of the Anti-Terrorism, Crime and Security Act 2001’. 10 Notably, ‘Briefing by Liberty: The Anti-Terrorism, Crime and Security Bill 2001’ in November 2001. 11 The Terrorism Act 2000 was enacted in July 2000 and contains 131 sections and 16 Schedules. 12 Subsection (2) of Section 1 of the Terrorism Act 2000 states that ‘Action falls within this subsection if it (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system’. 13 Section 1(b) of the Terrorism Act 2000. 14 Section 1(c) of the Terrorism Act 2000. 15 [1984] 1 WLR 704 16 [1996] 23 EHRR 413 17 Section 24 of ATCSA 2001 18 SIAC was established by the Special Immigration Appeals Commission Act 1997 and deals with appeals in cases where the Home Secretary exercises statutory powers to deport or exclude someone from the United Kingdom on national security grounds or for other public reasons, or to certify a person to be an international terrorist and detain them under Part 4 of the ATCSA 2001 19 Section 25 of the ATCSA 2001 20 Section 26 of the ATCSA 2001 21 Section 28 of the ATCSA 2001 22 Section 29 of the ATCSA 2001 23The core articles of the ECHR were given domestic effect in the United Kingdom by virtue of the Human Rights Act 1998. 24In this case, the judges who heard the appeal were Lord Woolf, CJ, Brooke, LJ and Chadwick, LJ. 25 [2001] 2 WLR 817 26 [2001] 3 WLR 877 27 The phrase ‘public emergency threatening the life of the nation’ had been considered in the European case of Lawless v Ireland (No. 3) [1961] 1 EHRR 15 where it was held, inter alia, that the phrase refers ‘to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.’ In that case, the court had no trouble concluding that ‘a public emergency threatening the life of the nation’ did exist based on a combination of several factors, firstly, the existence ….. of a secret army engaged in unconstitutional activities and using violence to attain its purposes, secondly, the fact that this army was also operating outside the territory of the State, thus seriously jeopardising the relations of the State with its neighbour and finally, the steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of 1957. 28 See the case of G v Secretary of State for the Home Department (SC/2/2002, Bail Application SCB/10, 20 May 2004). 29 [2004] UKHL 39, [2004] 1 WLR 2196 30 [2003] 3 All ER 577 31 See, for example, the article entitled ‘Terror Suspects Face House Arrest’ on 26 January 2005 at http://news.bbc.co.uk/1/hi/uk_politics/4207295.stm 32 See the article entitled ‘U.K. Government Amends Terror Law’ on 28 February 2005 at http://edition.cnn.com/2005/WORLD/europe/02/28/uk.detentions.reut/
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The court also noted that it would be ‘surprising’ if Article 14 of the ECHR or any other international law requirement not to discriminate prevented the Home Secretary from taking a restricted action which he thought was necessary. In this case, if the appellants’ arguments were accepted, it would mean that the action the Home Secretary decided to take (i.e. detention without trial) would be applied equally to British citizens as well as non-citizens. The Court of Appeal correctly pointed out that such a result would not promote human rights at all and instead be an additional intrusion into the rights of nationals.| < Prev | Next > |
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Circular No 109/2012: Be a Part of the Bar Council Constitutional Law Committee
