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Constitutional Crisis in the UK over Detention of Foreigners

Tuesday 21 December 2004, by Guild Elspeth


«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.»

Lord Hoffmann, 16 December 2004.

An immigration law ruling by the House of Lords on Thursday, 16 December 2004, has sparked a rather intense constitutional debate in the UK regarding the duty of the Government to respect human rights as interpreted by the courts. Here is a summary of the main issues and decision. The case has potential implications beyond the UK regarding the detention of foreigners and articles 5 ECHR (liberty of the person (European Convention on Human Rights)) and 14 ECHR (non discrimination) as the House of Lords relies exclusively on these provisions to find a primary statute incompatible with the UK’s human rights obligations.

The case, A(FC) and others v Secretary of State for the Home Department [2004] UKHL 56, relates to the indefinite detention of a number of foreign nationals on the grounds that the Secretary of State has a reasonable suspicion that they are international terrorists. By virtue of an act passed in December 2001, the UK Parliament gave the government the power to detain foreign nationals who are suspected of being international terrorists until such time as they leave the UK voluntarily or the Secretary of State considers that they are no longer a threat. The UK derogated from its obligation to respect the liberty of the individual under article 5 ECHR in order to adopt the legislation. Most of the detained persons are unable or unwilling to leave the UK as they have been given permission to stay in the UK as refugees or otherwise protected persons (ie their return would be to a country where there is a substantial risk they would suffer torture contrary to article 3 ECHR). One of them is a dual Algerian/French national and chose to return to France where he has lived at liberty since leaving the UK.

The foreign nationals contested their detention and the matter finally reached the House of Lords (court of final appeal in the UK). Their Lordships held that the 2001 UK law which provides the power to detain is not in conformity with the Human Rights Act which incorporates the ECHR into UK domestic law nor with the ECHR: in particular the power is incompatible with articles 5 and 14 ECHR in so far as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status.

Liberty of the Person

Nine Lord Justices took part in the case of which eight were in agreement. The judgment is extremely strong on the right of liberty of the person. Lord Nicholls starts his judgment: "Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford. Wholly exceptional circumstances must exist before this extreme step can be justified". He continues «In the present case I see no escape from the conclusion that Parliament must be regarded as having attached insufficient weight to the human rights of non-nationals. The subject matter of the legislation is the needs of national security. This subject matter dictates that, in the ordinary course, substantial latitude should be accorded to the legislature. But the human right in question, 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.»

Lord Hope states «it is impossible ever to overstate the importance of the right to liberty in a democracy.»

However, Lord Hoffmann addresses the issue most directly when he states «I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.»

A Public Emergency

The UK derogated from its obligation to respect the liberty of the individual under the ECHR on the basis that there is a state of emergency. The power to derogate under the ECHR is contained in article 15 stating that «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». As Lord Bingham, giving the lead judgment notes «according to the Government and the Security Services, the UK now faces a near-permanent emergency». But he noted that the Attorney General, speaking for the Government, did not suggest that an emergency could ever become the normal state of affairs. Lord Bingham states «Assuming, as one must, that there is a public emergency threatening the life of the nation, measures which derogate from article 5 [liberty of the person] are permissible only to the extent strictly required by the exigencies of the situation, and it is for the derogating state to prove that that is so. The reasons given by SIAC [Special Immigration Appeal Commission] do not warrant its conclusion». Thus the focus of the House of Lords’ criticism of the Government is on the proportionality of the response to a state of exception not the state’s right to declare a state of exception. This approach leaves a space open for states to declare a state of exception but then the measures which they introduce in response are subject to a high level of judicial scrutiny to determine whether they are in fact strictly necessary.

A majority of the judges accepted that the UK government was within its powers to find that the UK was in a state of public emergency after 11 September 2001 but found that the measures taken were not "strictly requires by the exigencies of the situation". Lord, Hoffmann, however, does not agree and considers that the Government cannot justify in law its claim that there is a threat to the life of the nation:

«But the question is whether such a threat is a threat to the life of the nation. The Attorney General’s submissions and the judgment of the Special Immigration Appeals Commission treated a threat of serious physical damage and loss of life as necessarily involving a threat to the life of the nation. But in my opinion this shows a misunderstanding of what is meant by "threatening the life of the nation". Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. When Milton urged the government of his day not to censor the press even in time of civil war, he said:

"Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governours"

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.»

The reference to the Spanish response to the attack of 11 March 2004 is worth noting. The Law Lord recommends to the UK government the Spanish approach based as it is on the rule of law and a response based in existing criminal procedural law.

Finally, Lord Scott provides another approach to the question of the public emergency threatening the life of the nation. He states «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.»

Here the reference to the inadequacy of the intelligence on Iraq is also worth noting. The legitimacy of the Government before the judges appears to have been weakened as a result of the discrediting of the information upon which the Government declares that it is making decisions.

The Role of the Judges

The judges stressed that their role in determining the legality of the Government’s actions in pursuit of the state of emergency had been defined by the government itself when it adhered to the ECHR and introduced it into national law. Having been given the task of interpreting the ECHR and its application, the courts were required by the rule of law to determine all those provisions necessary for a final decision on the case. Lord Hope expresses this as follows «Accordingly, the fact that the European Court [of Human Rights] will accord a large margin of appreciation to the contracting parties on the question whether the measures taken to interfere with the right to liberty do not exceed those strictly required by the exigencies of the situation cannot be taken as the last word on the matter so far as the domestic courts are concerned. Final responsibility for determining whether they do exceed these limits must lie with the courts, if the test which article 15(1) lays down is to be applied within the domestic system with all the rigour that its wording indicates.»

Lord Bingham explained the relationship of the judges with the Government somewhat differently stating: «The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.» He continued «It is also of course true, as pointed out in para 29 above, that 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.»

The Government’s response

The initial Government press release of 16 December 2004 was as follows: «Asked what the Government’s reaction would be to the ruling by the Law Lords concerning prisoners detained without charge at Belmarsh prison, the PMS asked journalists if they had seen the Written Ministerial Statement issued by the Home Office in response to the House of Lords judgement. The PMS quoted the statement made by the Home Secretary saying: "I will be asking Parliament to renew this legislation in the New Year but in the meantime we will be studying the judgement carefully to see whether it is possible to modify our legislation to address the concerns raised by the House of Lords." Asked if they Government would continue to detain the prisoners, the PMS quoted another paragraph saying: "Accordingly I will not be revoking the certificates or releasing the detainees, whom I believe are a significant threat to our security, a judgment upheld by the Special Immigration Appeals Commission, chaired by a High Court Judge." The Statement made it quite clear what the Government’s position was.»

The judgment is available on the Court’s website :

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