Emergency Detention in England After 1945

The derogation

The reason for the derogation was that a person who would face torture on return cannot be deported, on the Court's own earlier case law, so that detention with a view to deportation could not be said to be action taken with a view to deportation within article 5(1)(f) of the Convention. The Government therefore availed itself of the right of derogation conferred by article 15 of the Convention, which permits derogation in time of war or other public emergency threatening the life of the nation, to the extent strictly required by the exigencies of the situation.

The Strasbourg judgment records the speed of the enactment: the Bill was introduced on 12 November 2001 and passed by Parliament in two weeks, with three days of debate on the floor of the House of Commons for its 125 clauses under a restrictive programming motion, which prompted both the Joint Committee on Human Rights and the Home Affairs Select Committee to complain. The Act came into force on 4 December 2001, and sixteen individuals were certified and detained under it.

The three stages of the litigation

The Special Immigration Appeals Commission, 30 July 2002. It held that the threat had created a public emergency threatening the life of the nation, but that the derogation was unlawful because the provisions unjustifiably discriminated against foreign nationals contrary to article 14. Its reasoning is worth quoting: a derogation from the right to liberty in respect of suspected international terrorists ought rationally to extend to all irremovable suspected international terrorists, and could properly be confined to the alien section of the population only if the threat stemmed exclusively or almost exclusively from that section; and the evidence demonstrated beyond argument that the threat was not so confined. It quashed the derogation order and made a declaration of incompatibility in respect of section 23.

The Court of Appeal, 25 October 2002. It reversed. There was a rational connection between detaining non nationals who could not be deported and the purpose of removing non nationals who posed a threat; there was no discrimination, because British nationals suspected of terrorism were not in an analogous situation to foreign nationals who could not be deported for their own safety; and it was well established that States could distinguish between nationals and non nationals, especially in times of emergency.

The House of Lords, 16 December 2004. It restored the substance of the Commission's conclusion, and the decision is the one to know.

What the House of Lords decided

On article 5(1)(f). A majority found that the detention did not fall within the exception to the right to liberty for detention with a view to deportation. Lord Bingham summarised it: a person who commits a serious crime may of course, whether a national or a non national, be charged, tried and if convicted imprisoned; but a non national who faces the prospect of torture or inhuman treatment if returned to his own country, who cannot be deported to any third country, and who is not charged with any crime, may not be detained here even if judged to be a threat to national security.

On whether there was a public emergency. By eight to one the House held that the Commission's conclusion that there was a public emergency threatening the life of the nation should not be displaced, two of the majority with considerable hesitation. Lord Hoffmann dissented on this point, accepting that there was credible evidence of a threat of serious terrorist attack but holding that it would not destroy the life of the nation, since it was not so fundamental as to threaten the institutions of government or the existence of the community as a civil community; and he concluded that the real threat to the life of the nation came not from terrorism but from laws such as these.

On whether the question was for the courts at all. The Attorney General submitted that the assessment of what was needed to protect the public was a matter of political rather than judicial judgment. Seven Law Lords rejected that, with one dissenting. Lord Bingham's answer is the passage an Indian student should learn, because it is the exact answer to the argument that prevailed in India in 1976: that 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; that the Attorney General was entitled to insist on the proper limits of judicial authority but was wrong to stigmatise judicial decision making as in some way undemocratic; and that this was particularly inappropriate where Parliament had itself legislated to make it unlawful for a public authority including a court to act incompatibly with a Convention right, so that the Human Rights Act gave the courts a very specific, wholly democratic mandate.

On proportionality. The majority held that the detention scheme did not rationally address the threat and was disproportionate, on three grounds: it applied only to non nationals and did not address the threat from United Kingdom nationals, which though quantitatively smaller was not said to be qualitatively different; it left suspected international terrorists free to leave the United Kingdom and continue their activities abroad, as two of them had done by going to Morocco and France; and the legislation was drafted too broadly, so that it could apply to persons suspected of involvement with international terrorist organisations falling outside the scope of the derogation.

The order. A declaration of incompatibility under section 4 of the Human Rights Act 1998, in respect of section 23 of the 2001 Act, naming articles 5 and 14 of the Convention.

What a declaration of incompatibility actually does

Nothing, in the case before the court, and this is the point students most often get wrong.

The Strasbourg judgment records it: the declaration was not binding on the parties to the litigation; the applicants remained in detention, apart from two who had elected to leave the United Kingdom and one released on bail on conditions amounting to house arrest; and none of the applicants was entitled under domestic law to compensation in respect of their detention. That is why they went to Strasbourg.

What it does instead is political, and in this instance it worked. At the end of January 2005 the Government announced its intention to repeal Part 4 and replace it with a regime of control orders applying to individuals regardless of nationality. Those still detained were released on 10 and 11 March 2005 and immediately made subject to control orders under the Prevention of Terrorism Act 2005, and the derogation notice was withdrawn on 16 March 2005.

So the sequence is: court declares, court cannot release, Parliament repeals, executive releases. Three months from judgment to release.

The Strasbourg conclusion in 2009

The Grand Chamber agreed with the House of Lords on both branches.

On the emergency. It shared the view of the majority of the House of Lords that there was a public emergency threatening the life of the nation.

On proportionality. It held that where a derogating measure encroaches on a fundamental right such as liberty, the Court must be satisfied that it was a genuine response to the emergency, fully justified by its special circumstances, and that adequate safeguards were provided against abuse; that the margin of appreciation is a tool defining the relations between domestic authorities and the Strasbourg Court and cannot have the same application to relations between the organs of a State at the domestic level, so that, as the House of Lords held, the question of proportionality is ultimately a judicial decision; and that the House of Lords was correct in holding that the powers were not immigration measures, where a distinction between nationals and non nationals would be legitimate, but were concerned with national security, so that the choice of an immigration measure to address what was essentially a security issue failed adequately to address the problem while imposing a disproportionate and discriminatory burden of indefinite detention on one group of suspected terrorists.

The order. Violations of article 5(1) in respect of nine applicants, of article 5(4) in respect of four, and of article 5(5) in respect of nine, with damages awarded in euros.

The comparison with India, which is why MU sets this

Put the two together and the contrast is exact.

Same problem. A State faces attacks, cannot try the suspects on admissible evidence, and detains them without trial under a statute passed quickly.

Same constitutional question. Whether the judiciary may review the executive's assessment of what national security requires.

Opposite answers. In 1976 the Indian Supreme Court held by four to one that during the operation of a Presidential order no person had locus to move for habeas corpus, and that the executive's satisfaction was not examinable. In 2004 the House of Lords held by seven to one that the question of proportionality was for the courts, and that it was wrong to call judicial decision making undemocratic.

Opposite outcomes for the detainee. The Indian detenus had no remedy until the Emergency was revoked. The English detainees were released within three months, and later compensated.

And a difference of institutional design that cuts the other way. The English court could not release them; it could only declare. The Indian court, had it decided otherwise, could have released them at once under article 32, because the Indian remedy is binding and the English one is not.

An honest answer takes both halves. India's remedy is stronger and its court in 1976 declined to use it. England's remedy is weaker and its court used what it had. The lesson is not about the design of remedies; it is about the willingness to use them, which is the lesson of Khanna J.'s dissent.

A worked example

A State enacts a law permitting the indefinite detention of foreign nationals suspected of terrorism who cannot be deported, and defends it on the ground that an emergency exists and that the courts should defer.

Is there an emergency? That question is separately answerable, and both the House of Lords and the Strasbourg Court answered it yes on the facts of 2001, one Law Lord dissenting.

Does that end the matter? No. Article 15 permits derogation only to the extent strictly required by the exigencies of the situation, so the measure must still be proportionate.

What makes this measure disproportionate? That it does not reach nationals who present the same threat; that it lets the detainee leave and continue abroad; and that it is drafted more widely than the derogation.

What makes it discriminatory? That it is presented as an immigration measure but is in substance a security measure, and as a security measure it treats two groups presenting the same threat differently on the ground of nationality.

What could the court do about it? In England, declare the incompatibility, which does not free the detainee. In India, under article 32, quash the detention.

What it does NOT mean

The English courts did not hold that there was no emergency. Eight of nine held that there was.

They did not strike down the statute. They could not; they declared it incompatible.

Control orders were not an unqualified improvement. They restricted liberty without trial too, and applied regardless of nationality, which is what cured the discrimination and not the detention without trial.

Strasbourg did not overrule the House of Lords. It agreed with it and awarded the compensation the domestic system could not.

Quick revision

• Part 4 of the Anti-terrorism, Crime and Security Act 2001: s.21 certification on the Secretary of State's reasonable belief of a risk to national security and reasonable suspicion that the person is a terrorist; s.23 detention despite removal being prevented temporarily or indefinitely; challenge only before the Special Immigration Appeals Commission.
• Derogation from article 5 under article 15 of the Convention; the Bill passed in two weeks; sixteen persons certified and detained.
• SIAC: emergency yes, but the derogation discriminated against foreign nationals; declaration of incompatibility. Court of Appeal: reversed. House of Lords, 16 December 2004: restored, declaring s.23 incompatible with articles 5 and 14.
• Lord Bingham: a non national facing torture on return, undeportable and uncharged, may not be detained even if judged a threat; and the question of proportionality is for the courts, judicial decision making not being undemocratic, the Human Rights Act giving the courts a wholly democratic mandate.
• Lord Hoffmann, dissenting on the emergency: the real threat to the life of the nation comes not from terrorism but from laws such as these.
• Three grounds of disproportion: no application to nationals; detainees free to leave; drafted wider than the derogation.
• A declaration of incompatibility binds nobody: the detainees stayed in and had no right to compensation; Parliament repealed Part 4, control orders replaced it under the Prevention of Terrorism Act 2005, the detainees were released on 10 and 11 March 2005 and the derogation was withdrawn on 16 March 2005.
• Strasbourg, 19 February 2009: agreed on the emergency, agreed on disproportion and discrimination, held that the margin of appreciation does not govern relations between organs of a State internally, and awarded damages for violations of article 5(1), 5(4) and 5(5).

Test yourself

1. What did section 23 of the 2001 Act authorise, and why was that the flaw? The detention of a certified suspected international terrorist despite his removal being prevented temporarily or indefinitely; it was the flaw because immigration detention is ordinarily lawful only while removal is being pursued, so the section converted a power to detain pending deportation into a power to detain indefinitely.

2. On what two questions did the House of Lords divide, and how? On whether there was a public emergency threatening the life of the nation, held yes by eight to one with Lord Hoffmann dissenting; and on whether proportionality was for the courts rather than for Parliament and the executive, held for the courts by seven to one with Lord Walker dissenting.

3. Give the three grounds on which the scheme was held disproportionate. That it applied only to non nationals and did not address the threat from United Kingdom nationals; that it left those certified free to leave the country and continue their activities abroad; and that it was drafted so broadly that it could apply to persons outside the scope of the derogation.

4. What is the practical effect of a declaration of incompatibility? None in the case itself: it does not bind the parties, the applicants remained in detention and had no right to compensation under domestic law; its effect is political, and here it led to the repeal of Part 4, the release of the detainees within three months and the withdrawal of the derogation.

5. State the contrast with ADM Jabalpur in one sentence each way. In 1976 the Indian court, holding a remedy that would have bound the executive, declined to review the executive's satisfaction; in 2004 the English court, holding a remedy that bound nobody, reviewed it and said that calling judicial decision making undemocratic was wrong.