A, X and Y and Others and Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Chadwick,Lord Justice Brooke
Judgment Date20 July 2004
Neutral Citation[2002] EWCA Civ 1502
Docket NumberCase No: C/2002/1710
CourtCourt of Appeal (Civil Division)
Date20 July 2004
A, X and Y, and Others
Secretary of State for the Home Department

[2002] EWCA Civ 1502


The Lord Chief Justice of England & Wales

Lord Justice Brooke and

Lord Justice Chadwick

Case No: C/2002/1710




Royal Courts of Justice


London, WC2A 2LL

Lord Goldsmith QC, Ian Burnett QC, Philip Sales and James Eadie (instructed by the Treasury Solicitor) for the Appellant

Been Emmerson QC and Raza Husain (instructed by Birnberg Peirce & Partners) for A and Others)

Manjit Gill QC, Stephanie Harrison and Adrian Berry (instructed by Tyndallwoods) for X and Y)

David Pannick QC, Rabinder Singh QC and Murray Hunt (instructed by Liberty as interveners)


Lord Woolf CJ


1. Introduction


2. The background to the Secretary of State's case


3. The Derogation Order


4. The 2001 Act


5. The Secretary of State's case


6. Article 15 and is there a state of emergency?


7. Discrimination


8. The Respondent's Submissions


9. Conclusions on the Respondents' contentions

First Submission


Second Submission


Third to Fifth Submission


Submissions Six to Eight: Discrimination


10. Article 6


11. Article 3


12. Did SIAC misunderstand its role?


13. The opinion of the Commissioner for Human Rights


14. The Joint Committee of Parliament on Human Rights


Brooke LJ

1. Introductory: the four main issues


2. The proper standard of judicial scrutiny: SIAC's approach


3. ECHR Article 15 and judicial supervision: the ECHR case law


4. Judicial supervision in human rights cases and issues of deference


5. The meaning of "public emergency" in ECHR Article 15


6. Reliance on intelligence material


7. My conclusion on the first and fourth main issues


8. Did Parliament go further than was strictly required?


9. My conclusion on the second main issue


10. Differential treatment of non-nationals: the facts of the present case


11. Differential treatment of non-nationals: relevant principles of international law


12. My conclusion on the third main issue


Chadwick LJ


1. The Statutory framework which underlies this appeal


2. The Derogation Order


3. The existence of a public emergency threatening the life of the nation


4. Measures strictly required by the exigencies of the situation


5. Discrimination


The Lord Chief Justice



This is an appeal from a decision of the Special Immigration Appeals Commission (SIAC) of the 30th July 2002. SIAC (Mr Justice Collins, Chairman, Lord Justice Kennedy and Mr Mark Ockelton) quashed the Human Rights Act 1998 (Designated Derogation) Order 2001 ("the Order") and granted a declaration under section 4 of the Human Rights Act 1998 ("the HRA") that section 23 of the Anti-Terrorism, Crime and Security Act 2001 ("the 2001 Act") is incompatible with Articles 5 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR") in so far as it permits detention of suspected international terrorists in a way that discriminates against them on the ground of nationality.


The appeal arises out of the steps which this country decided to take in the interests of national security as a consequence of the attacks which took place in the United States on the 11th September 2001. Among these steps were the making of the Order and the passing of the 2001 Act. They gave the Secretary of State new powers to detain non-nationals who resided in this country if the Secretary of State suspected that they were terrorists. After the legislation had been passed eleven people were detained. Two have left the country but have not dropped out of the picture because SIAC has allowed them to continue their appeals. So all have appealed The other nine ("the respondents"), as they were entitled to, appealed to SIAC after they had been detained.


In order to achieve their detention the Secretary of State was required to issue a certificate under section 21 of Part 4 of the 2001 Act. An appeal against detention is brought under section 25 of the 2001 Act. That section provides:

"(1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21.

(2) On appeal the Commission must cancel the certificate if –

(a) it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), or

(b) it considers that for some other reason the certificate should not have been issued."


SIAC is required to carry out a first review after six months of the issue of a certificate or the final determination of an appeal against a certificate and thereafter at three monthly intervals. Decisions of SIAC are subject to a further appeal to this court, but only on a point of law under section 27 of the 2001 Act. The present appeal is brought under that section. Section 30 prevents the detention of persons in the position of the respondents being questioned in any legal proceedings except on an appeal to SIAC. Section 35 of the 2001 Act constitutes SIAC a superior court of record.


On the appeal to SIAC the respondents challenged the lawfulness of every aspect of the action taken by the Secretary of State which resulted in their being detained. The challenge included the question of whether the Secretary of State, in the case of each respondent, could have reasonably believed that his presence in United Kingdom is a risk to national security or could have reasonably suspected that he was an international terrorist. This aspect of their appeals turns on their individual circumstances and so has not yet been considered by SIAC, but adjourned until the outcome of their remaining grounds of appeal are known.


The respondents' appeal succeeded on the grounds which were based on discrimination. The other grounds were unsuccessful but they are the subject of a cross appeal and the cross appeal has been fully argued before this court both orally and in writing. However, David Pannick QC, who appears on behalf of Liberty, who intervened in the proceedings before SIAC and before us, is undoubtedly correct in submitting that it is the issue of discrimination which goes to the heart of this appeal.


The alleged discrimination is based on the fact that the 2001 Order and Act allow only suspected terrorists who are non-nationals to be detained when there are equally dangerous British nationals who are in exactly the same position who cannot be detained. The right not to be discriminated against is one of the most significant requirements of the protection provided by the rule of law. It is now enshrined in Article 14 of the ECHR, but long before the HRA came into force the common law recognised the importance of not discriminating. The importance of not discriminating explains why every judge on taking office makes a vow to "do right to all manner of people…. without fear or favour affection or ill will". The vice involved in discrimination was well identified by Associate Justice Jackson of the US Supreme Court in 1948:

"… equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation." Railway Express Agency v New York 336 US 106 (1949) at 112–113.


In the case of the ECHR, it is Article 14 which prohibits discrimination. Article 14 is in these terms:

"The enjoyment of the rights and freedoms set forth in (the) Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

It is to be observed that Article 14 does not create a free-standing right. It requires the rights and freedoms which are secured by the ECHR to be enjoyed without discrimination. The fact that the right not to be discriminated against is not a freestanding right does not diminish its importance. The principle of non-discrimination applying as it does, to all freestanding rights, is fundamental to the values that the ECHR and the HRA are intended to protect.


The danger of unjustified discrimination is acute at times when national security is threatened and it is important that the courts take particularly seriously any allegation of unlawful discrimination as a result of an action which is said to have been taken in the interests of national security. This is especially the case if, as here, non-nationals are being detained based on conduct which has not been proved but is only suspected. The mistakes which have been made in the past, in relation to internment of aliens at the outbreak of war, should not be forgotten.


The same importance was attached by the...

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