Case study A v Home Secretary, A v UK

Case study: A v Home Secretary, A v UK Derogation Notice, 2001 Derogation contained in a Note Verbale from the Permanent Representation of the United Kingdom, dated 18 December 2001, registered by the Secretariat General on 18 December 2001-Or. Engl. Engl. and withdrawn by a Note verbale from the Permanent Representation of the United Kingdom dated 16 March 2005, registered at the Secretariat General on 16 March 2005-Or. Engl. The United Kingdom Permanent Representative to the Council of Europe presents his compliments to the Secretary General of the Council, and has the honor to convey the following information in order to ensure compliance with the obligations of Her Majesty's Government in the United Kingdom under Article 15(3) of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 5 November 1950. Public emergency in the United Kingdom There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organizations or groups which are so concerned or of having links with members of such organizations or groups, and who are a threat to the national security of the United Kingdom. As a result, a public emergency, within the meaning of Article 15 (1) of the Convention, exists in the United Kingdom. Anti-terrorism, Crime and Security Act 2001 s. 23 Detention 23 Detention (1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by- (a) a point of law which wholly or partly relates to an international agreement, or (b) a practical consideration. Limits On Human Rights – Example ARTICLE 5 Right to liberty and security 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition. Anti-terrorism, Crime and Security Act 2001 s. 23 Detention 23 Detention (1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by(a) a point of law which wholly or partly relates to an international agreement, or (b) a practical consideration. Derogation notice, 2001 Article 5(1)(f) of the Convention In some cases, where the intention remains to remove or deport a person on national security grounds, continued detention may not be consistent with Article 5(13) as interpreted by the Court in the Chahal case. This may be the case, for example, if the person has established that removal to their own country might result in treatment contrary to Article 3 of the Convention. In such circumstances, irrespective of the gravity of the threat to national security posed by the person concerned, it is well established that Article 3 prevents removal or deportation to a place where there is a real risk that the person will suffer treatment contrary to that article. if no alternative destination is immediately available then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of the United Kingdom and the high standard of proof required. Derogation under Article 15 of the Convention The Government has considered whether the exercise of the extended power to detain contained in the Anti-terrorism, Crime and Security Act 2001 may be Inconsistent with the obligations under Article 5(1) of the Convention. As indicated above, there may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that "action is being taken with a view to deportation" within the meaning of Article 5(1)(f) as interpreted by the Court in the Chahal case. To the extent, therefore, that the exercise of the extended power may be inconsistent with the United Kingdom's obligations under Article 5(1), the Government has decided to avail itself of the right of derogation conferred by Article 15(1) of the Conversion and will continue to do so until further notice. Challenge to the detention regime in the Anti-Terrorism, Crime and Security Act 2001 & the designated derogation House of Lords A and others v Secretary of State for the Home Department X and another v Secretary of State for the Home Department 2004 Oct 4, 5, 6, 7; Dec 16 [2004] UKHL 56 Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Carswell Case study: A v Home Secretary - Was there a 'public emergency threatening the life of the nation'? • Majority: Yes  Lord Bingham: 'I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre-eminently political judgment... I conclude that the appellants have shown no ground strong enough to warrant displacing the Secretary of State's decision on this important threshold question.' • Compare:  Lord Hoffmann: '[I]n my opinion this shows a misunderstanding of what is meant by "threatening the life of the nation"... 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. - Were the measures strictly required by the exigencies of the situation? • The evidence before the Special Immigration Appeals Commission was that the threat of suspected international terrorism was not confined to foreign nationals, but also arose in respect of British nationals, who were not subject to the 2001 Act detention regime. • Majority: No  Lord Bingham: '[T]he choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem (by... leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if reasonably suspected of having links with Al-Qaeda, may harbor no hostile intentions towards the United Kingdom.  The conclusion that the Order and section 23 are, in Convention terms, disproportionate is in my opinion irresistible...' - Discrimination? • Majority: Yes • Lord Bingham: 'What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another. To do so was a violation of article 14. - Dissenting judgment • Lord Walker: 'I have the misfortune to differ from most of your Lordships as to whether the derogating measures are proportionate, rational and nondiscriminatory... • [T]he detention without trial of non-national suspected terrorists is a cause of grave concern. But the judgment of Parliament and of the Secretary of State is that these measures were necessary, and the 2001 Act contains several important safeguards against oppression... • These safeguards seem to me to show a genuine determination that the 2001 Act... should not be used to encroach on human rights any more than is strictly necessary.' CASE OF A. AND OTHERS v. THE UNITED KINGDOM (Application no. 3455/05) - The European Court of Human Rights held: • The detention regime not permitted under Article 5(1)(f) ECHR. • There was a public emergency threatening the life of the nation. • The measures were not strictly required by the exigencies of the situation. • Consequently, the derogation under Article 15 was not valid. • And there was a violation of Article 5 (the right to liberty).