Detention of Foreign National Terrorist Suspects: Compatibility with the European Convention on Human Rights
| Author | Amrita Mukherjee |
| DOI | 10.1350/jcla.69.3.215.64777 |
| Published date | 01 June 2005 |
| Date | 01 June 2005 |
| Subject Matter | House of Lords |
House of Lords
Detention of Foreign National Terrorist Suspects:
Compatibility with the European Convention on
Human Rights
A and Others v Secretary of State for the Home Department
[2004] UKHL 56
Eight appellants, detained since December 2001 and one since February
2002, were subject to the certification of the Secretary of State under
s. 21 of the Anti-Terrorism, Crime and Security Act 2001. Section 23 of
the 2001 Act provides that a suspected international terrorist may be
detained without charge or trial where it is not possible lawfully to
deport them under the prevailing circumstances. The UK derogation
from Article 5(1)(f) of the European Convention on Human Rights,
which sought to render lawful such detention, came into effect from 13
November 2001, under the Human Rights Act 1998 (Designated Dero-
gation) Order 2001 (SI 2001 No. 3644) (the Derogation Order). The
Derogation Order had been enacted to address the perceived terrorist
threat from Al-Qaeda after the terrorist attacks in the USA on September
11, 2001.
All foreign nationals, the appellants were challenging the lawfulness
of their detention under the Human Rights Act 1998 (the 1998 Act),
which gives further domestic effect to the obligations under the Euro-
pean Convention. They also challenged the Secretary of State’s author-
ity to derogate from Article 5 obligations given that derogation was
inconsistent with the European Convention and so ineffectual to justify
such statutory measures. They argued that the 2001 Act and the Deroga-
tion Order were incompatible with the European Convention.
The Court of Appeal ([2002] EWCA Civ 1502, [2004] QB 335) had
held that the Special Immigration Appeals Commission (SIAC) had been
entitled to conclude that there was a public emergency threatening the
life of the nation under Article 15 of the European Convention on
Human Rights, and the power contained in s. 23 of the 2001 Act, was
objectively justified during a time of national emergency and was pro-
portionate. Also the court held there was objective and reasonable
justification for the differential treatment of the appellants.
The appellants argued that the threat to the UK did not derive solely
from foreign nationals, that no other state had derogated from Article 5
and, further, that the statutory provisions were contrary to Article 14 in
relation to discrimination.
H
ELD
(
BY A MAJORITY OF
8
TO
1),
ALLOWING THE APPEAL
,the deten-
tion of the nine persons under Part 4 of the Anti-Terrorism, Crime and
Security Act 2001 (the 2001 Act), was contrary to Articles 5 and 14 of
the European Convention on Human Rights:
215
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