"I would quash the Human Rights Act 1998 (Designated Derogation) Order 2001. I would declare that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with the right to liberty in article 5 of the European Convention on Human Rights on the ground that it is not proportionate, and that it is incompatible with article 14 of the Convention on the ground that it discriminates against the appellants in their enjoyment of the right to liberty on the ground of their national origin."
" It has not been suggested, nor could it be suggested, that the 2001 Act is otherwise than an effective enactment made by a sovereign legislature. It was passed by both Houses of Parliament and received the Royal Assent. Whether the terms of the 2001 Act are consistent with the terms of the European Convention on Human Rights ("the ECHR") is, so far as the courts of this country are concerned, relevant only to the question whether a declaration of incompatibility under section 4 of the Human Rights Act 1998 should be made. The making of such a declaration will not, however, affect in the least the validity under domestic law of the impugned statutory provision. The import of such a declaration is political not legal...
A ruling that an Act of Parliament is incompatible with the ECHR does not detract from the validity of the Act. It does not relieve citizens from the burdens imposed by the Act. It provides, of course, ammunition to those who disapprove of the Act and desire to agitate for its amendment or repeal. This is not a function that the courts have sought for themselves. It is a function that has been thrust on the courts by" the 1998 [Human Rights]Act.
"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". Nonetheless, I would, for my part, be prepared to allow the Secretary of State the benefit of the doubt on this point and accept that the threshold criterion of article 15 is satisfied."
Ouch - no punches pulled on exaggerated presentation of intelligence claims on Iraq.
"Section 23 constitutes, in my opinion, a derogation from article 5(1) at the extreme end of the severity spectrum. An individual who is detained under section 23 will be a person accused of no crime but a person whom the Secretary of State has certified that he "reasonably … suspects … is a terrorist" (section 21(1)). The individual may then be detained in prison indefinitely. True it is that he can leave the United Kingdom if he elects to do so but the reality in many cases will be that the only country to which he is entitled to go will be a country where he is likely to undergo torture if he does go there. He can challenge before the SIAC the reasonableness of the Secretary of State's suspicion that he is a terrorist but has no right to know the grounds on which the Secretary of State has formed that suspicion. The grounds can be made known to a special advocate appointed to represent him but the special advocate may not inform him of the grounds and, therefore, cannot take instructions from him in refutation of the allegations made against him. Indefinite imprisonment in consequence of a denunciation on grounds that are not disclosed and made by a person whose identity cannot be disclosed is the stuff of nightmares, associated whether accurately or inaccurately with France before and during the Revolution, with Soviet Russia in the Stalinist era and now associated, as a result of section 23 of the 2001 Act, with the United Kingdom. I can understand, conceptually, that the circumstances constituting the "public emergency threatening the life of the nation" might be of such an order as to justify describing section 23 as a measure "strictly required by the exigencies of the situation". But I am unable to accept that the Secretary of State has established that section 23 is "strictly required" by the public emergency. He should, at the least, in my opinion, have to show that monitoring arrangements or movement restrictions less severe that incarceration in prison would not suffice." (Emphasis mine).
"The differentiation between suspected terrorists who are immigrants with no right of residence and suspected terrorists who are British nationals is, in my opinion, plainly discriminatory. The difference between the two groups, namely, that one group has the right of residence and the other group does not, seems to me to be irrelevant to the issue as to what measures are required in order to combat the threat of terrorism that their presence in this country may be thought by the Secretary of State to present...
In my opinion, however the article 15 requirement does not justify a discriminatory distinction between different groups of people all of whom are suspected terrorists who together present the threat of terrorism and to all of whom the measures, if they really were "strictly necessary" would logically be applicable. If those who are suspected terrorists include some non-Muslims as well as Muslims, it would, in my opinion, be irrational and discriminatory to restrict the application of the measures to Muslims even though the bulk of those suspected are likely to profess to be Muslims. Some might well not be professed Muslims. Similarly, it would be irrational and discriminatory to restrict the application of the measures to men although the bulk of those suspected are likely to be male. Some might well be women. Similarly, in my opinion, it is irrational and discriminatory to restrict the application of the measures to suspected terrorists who have no right of residence in this country. Some suspected terrorists may well be home-grown."
"I consider it right to defer to the Government's considered judgment that it would be difficult to justify taking draconian powers to detain British suspects. In other words, the Government believe that they could not show that the indefinite detention of British suspects was justified, and hence strictly required, in terms of article 15(1), in order to meet the threat that they pose to the life of the nation. Starting from that premise, SIAC's conclusion, that the threats posed by the foreign and British suspects are comparable, leads to the further conclusion that the detention of the foreign suspects is not strictly required either."
"As my noble and learned friend Lord Rodger of Earlsferry pointed out in the course of argument, a portentous but non-specific appeal to the interests of national security can be used as a cloak for arbitrary and oppressive action on the part of government. Whether or not patriotism is the last refuge of the scoundrel, national security can be the last refuge of the tyrant. It is sufficient to refer (leaving aside more recent and probably more controversial examples) to the show trial and repression which followed the Reichstag fire in Berlin and the terror associated with the show trials of Zinoviev, Bukharin and others in Moscow during the 1930s. It is therefore important to note that in this appeal no attack is made on the good faith of the Secretary of State, or any other individual or group of individuals in the executive or legislative arms of government. It is not suggested that the Secretary of State or any of his officials has given misleading or disingenuous reasons for their actions. What is said is that they have asked themselves the wrong questions, and have reached irrational and disproportionate answers."
(He could be talking about ID cards - they've asked themselves the wrong questions and have reached irrational and disproportionate answers!).
"For my part I think that in a case of this sort the court has to proceed at two different levels. The court should show a high degree of respect for the Secretary of State's appreciation, based on secret intelligence sources, of the security risks; but at the same time the court should subject to a very close scrutiny the practical effect which derogating measures have on individual human rights, the importance of the rights affected, and the robustness of any safeguards intended to minimise the impact of the derogating measures on individual human rights. In doing so the court must allow for the fact that it may be impossible for the intelligence services to identify the target or predict the scale of a violent attack by international terrorists (whose methods involve secrecy, deception and surprise). The likely effects of a natural disaster (such as a hurricane or a volcanic eruption) are, within limits, more easily predictable than those of attacks by terrorists who (on the evidence) may have access to biological, chemical or even radiological or nuclear weapons."
Lord Walker goes on to set the background for his caution against detention without trial, by citing works that outline the downside, Professor A T H Smith in the chapter on offences against the state in English Public Law (edited by Professor David Feldman, 2004), p 1334, Professor Clive Walker's Blackstone's Guide to the Anti-Terrorism Legislation (2002) and Professor Brian Simpson's work, In the Highest Degree Odious: Detention Without Trial in Wartime Britain, (1992); as well as hinting at problems created by internment in Northern Ireland.
He agrees, however, that the 2001 Act was passed at a time of "public emergency threatening the life of the nation" and goes on to dissent from the majority judgement saying discrimination between nationals and foreign nationals in this context is "rational."
"In this case a power of interning British citizens without trial, and with no option of going abroad if they chose to do so, would be far more oppressive, and a graver affront to their human rights, than a power to detain in "a prison with three walls" a suspected terrorist who has no right of abode in the United Kingdom, and whom the government could and would deport but for the risk of torture if he were returned to his own country. Detention of non-national suspects is still a cause of grave concern, and I share the anxieties expressed by Lord Woolf CJ in para 9 and by Brooke LJ in para 86 of their respective judgments in the Court of Appeal. But in my view Part 4 of the 2001 Act is not offensively discriminatory, because there are sound, rational grounds for different treatment."
"Executive detention is the antithesis of the right to liberty and security of person...
We have always taken it for granted in this country that we cannot be locked up indefinitely without trial or explanation...
There is every reason to think that there are British nationals living here who are international terrorists within the meaning of the Act; who cannot be shown to be such in a court of law; and who cannot be deported to another country because they have every right to be here. Yet the Government does not think that it is necessary to lock them up. Indeed, it has publicly stated that locking up nationals is a Draconian step which could not at present be justified. But it has provided us with no real explanation of why it is necessary to lock up one group of people sharing exactly the same characteristics as another group which it does not think necessary to lock up."
She also quotes Thomas Jefferson:
"Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable . . . The minority possess their equal rights, which equal law must protect, and to violate would be oppression."
and rounds off:
"No one has the right to be an international terrorist. But substitute "black", "disabled", "female", "gay", or any other similar adjective for "foreign" before "suspected international terrorist" and ask whether it would be justifiable to take power to lock up that group but not the "white", "able-bodied", "male" or "straight" suspected international terrorists. The answer is clear."
Complex case. Not easy for any of the parties involved. I would guess that the government's response to the decision, when it gets round to dealing with it, will be to broaden the scope of the legislation to facilitate the indefinite detention, without charge or trial, of terrorist suspects who are British nationals too.
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