. 140
( 155 .)


it heard that the campaign to free him was being organised by the editor of the
Jewish Quarterly.
The behaviour of the state confirmed that the arrests were a PR operation designed to
gull a mulish press and public into thinking all was well. The ˜terrorists™ homes weren™t
searched. Interrogations were perfunctory or non-existent. Although the internees weren™t
told why they were in jail, MI6 leaked that MI5 was arresting people on the basis of infor-
mation in files which were 20 years out of date. The case against Ali el-Saleh, a computer
salesman from Bedford, seemed to be that his wife™s sister had married a man whose uncle
was Abu Nidal. El-Saleh and Cheblak spoke with embarrassing sadness of how they had lost
their homes in Palestine and had hoped to make a new life for themselves and their chil-
dren as free and grateful British citizens.
At the end of the war, the Home Office released all the detainees. It might still have
deported them if there was a hint of a suspicion that they were terrorists. Ministers quietly
allowed anyone who wanted to remain in Britain to do so. There was no disciplinary action
against the MI5 officers involved. The judiciary, which hadn™t squeaked while the principles
of English law were assaulted and battered, was briefly criticised, but the complaints died
away. The scandal was all but forgotten as the childish need to believe in benign authority
reasserted itself.

Secretary of State for the Home Department v Rehman [2001] UKHL 47,
[2003] 1 AC 153. This is the ¬nal of our six pre-HRA national security cases. It
is another deportation case. Rehman appealed the Secretary of State™s decision
to deport him to the Special Immigration Appeals Commission (SIAC), which,
as was mentioned above, replaced the previous system of advisory panels
in 1997. SIAC upheld Rehman™s appeal, on the basis that as a number of the
Secretary of State™s claims against him could not be substantiated on the facts,
it could not be said that he had o¬ended against national security. For SIAC,
being a threat to national security could constitute grounds for deportation
only if it could be shown that the deportee had engaged in, promoted or encour-
aged ˜violent activity which is targeted at the UK, its system of government or
its people™. The Secretary of State appealed, arguing that this was too narrow a
de¬nition of national security. In his view the United Kingdom™s national secu-
rity could be threatened by action targeted at an altogether di¬erent jurisdic-
tion, even if no British subjects were directly involved. Both the Court of Appeal
and the House of Lords unanimously agreed with the Secretary of State. The
House of Lords further ruled that determining what measures are required to
be taken in the interests of national security is a ˜matter of judgment and policy™
for the Secretary of State (Lord Ho¬mann at [50]). Judicial oversight of execu-
tive decision-making in this area is narrowly con¬ned to three matters: ¬rst, ˜the
factual basis for the executive™s opinion . . . must be established by evidence™;
secondly, SIAC would be able to reject the Secretary of State™s opinion on the
ground that it was Wednesbury unreasonable; and thirdly, if deportation would
entail a substantial risk that the deportee would be subject in the country to
762 British Government and the Constitution

which he is deported to treatment contrary to Article 3 ECHR, the court may,
on the authority of Chahal v United Kingdom (1996) 23 EHRR 413, order the
deportation to be stopped (Lord Ho¬mann at [54]; see further on this aspect of
the European Court of Human Rights™ ruling in Chahal, below). The House of
Lords conceded that ˜it cannot be proved to a high degree of probability that
[Rehman] has carried out any individual act which would justify the conclusion
that he is a danger™ (Lord Hutton at [65]). Nonetheless, their Lordships ruled
that SIAC was wrong to allow Rehman™s appeal for the reasons it had given
and the case was remitted to SIAC for redetermination. Their Lordships™ opin-
ions in Rehman were handed down on 11 October 2001, one month exactly
after 9/11. Lord Ho¬mann added the following ˜postscript™ to his opinion in the
case (at [62]):

I wrote this speech some three months before the recent events in New York and Washington.
They are a reminder that in matters of national security the cost of failure can be high. This
seems to me to underline the need for the judicial arm of government to respect the deci-
sions of ministers of the Crown on the question of whether support for terrorist activities in
a foreign country constitutes a threat to national security. It is not only that the executive
has access to special information and expertise in these matters. It is also that such deci-
sions, with serious potential results for the community, require a legitimacy which can be
conferred only by entrusting them to persons responsible to the community through the
democratic process. If the people are to accept the consequences of such decisions, they
must be made by persons whom the people have elected and whom they can remove.

(ii) National security after the Human Rights Act 1998
We can now examine the extent to which the Human Rights Act and the case
law decided under it have had an impact on matters touching upon national
security. The most signi¬cant case is, without doubt, the extraordinary decision
of the House of Lords in A v Secretary of State for the Home Department [2004]
UKHL 56, [2005] 2 AC 68, to which we shall turn ¬rst. As we shall see in the
next section, however, this is far from the only case we need to examine:
con¬ning our attention to this case alone, important though it is, would leave a
seriously misleading impression.

A v Secretary of State for the Home Department [2004] UKHL 56,
[2005] 2 AC 68
A panel of nine Law Lords heard this case. By a majority of eight to one they
ruled, overturning a unanimous Court of Appeal (see [2004] QB 335), that the
inde¬nite detention without trial of suspected international terrorists, as pro-
vided for by Part IV of the Anti-terrorism, Crime and Security Act 2001, was
unlawful as being both a disproportionate interference with the right to liberty
under Article 5 ECHR and a discriminatory measure in breach of Article 14
ECHR. In the course of their opinions several of their Lordships voiced
763 Liberty and the constitution

concerns about governmental claims regarding national security that are quite
di¬erent from the sorts of approaches taken in the case law considered in the
previous section of this chapter. Lord Rodger stated, for example, at [177] that
˜national security can be used as a pretext for repressive measures that are really
taken for other reasons™, while Baroness Hale stated at [226] that ˜Unwarranted
declarations of emergency are a familiar tool of tyranny™. Even Lord Walker,
who dissented and who would have upheld the legality of the measures, con-
ceded at [193] that ˜a portentous but non-speci¬c appeal to the interests of
national security can be used as a cloak for arbitrary and oppressive action on
the part of government™ and that ˜national security can be the last refuge of
the tyrant™.
When it introduced the Anti-terrorism, Crime and Security Bill into
Parliament the Government knew that the provisions concerning inde¬nite
detention without trial would be in breach of Article 5. As a result, the govern-
ment ˜derogated™ from Article 5 for the purposes of these provisions.
Derogation from the Convention is governed by Article 15 ECHR, which
provides as follows:

1. 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 mea-
sures are not inconsistent with its other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of
war, of from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision . . .

Section 1(2) of the Human Rights Act provides that the Convention rights (as
de¬ned in section 1(1)) ˜are to have e¬ect for the purposes of this Act subject to
any designated derogation™. Such a designated derogation, in respect of Article
5 ECHR and the provisions concerning inde¬nite detention without trial, was
made by the Secretary of State: see the Human Rights Act 1998 (Designated
Derogation) Order 2001, SI 3644/2001.
The regime under Part IV of the Act did not represent what the Government
claimed it would ideally like to be able to do to suspected international terror-
ists. Ideally, the Government claimed, suspected international terrorists would
be deported. This option is not always available, however, as a result of the
ruling of the European Court of Human Rights in Chahal v United Kingdom
(1996) 23 EHRR 413. In that case the European Court held that it would be a
breach of Article 3 of the Convention for a High Contracting Party to deport a
person where ˜substantial grounds have been shown for believing that the
person in question, if expelled, would face a real risk of being subjected to treat-
ment contrary to Article 3 in the receiving country™ (at [74]). Article 3 is non-
derogable: as we have just seen, the terms of Article 15(2) make it impossible for
a High Contracting Party to derogate from Article 3. This is the problem that
the regime of inde¬nite detention without trial was meant to be the solution to.
764 British Government and the Constitution

This explains why Part IV applied only to those persons who were subject to
immigration control. Nationals cannot be deported in any event.
For the House of Lords to rule (as the majority did) that the scheme of
inde¬nite detention without trial was in breach of Article 5 their Lordships ¬rst
had to deal with the legality of the derogation. If the derogation from Article 5
was lawful the Act™s interference with the right to liberty could not be unlawful.
It is this aspect of their Lordships™ ruling that most closely touches on issues of
national security, as we shall see. There is one preliminary point, however, that
must be addressed ¬rst. What is the test that the courts should employ to deter-
mine whether a purported derogation is lawful? Article 15, while referred to in
the Human Rights Act, is not one of the Convention rights incorporated into
domestic law by section 1 of the HRA. Like Article 13, Article 15 was deliber-
ately excluded. This suggests that, when considering the legality of a purported
derogation, domestic courts should do no more (and no less) than apply the
ordinary principles of judicial review: legality, rationality, procedural propriety
and, in the context of Convention rights (as here, Articles 5 and 14 both being
incorporated under the HRA), proportionality (see chapter 10). This is not the
approach their Lordships took, however. Most of the Law Lords appear simply
to have assumed that the criteria in Article 15 should be applied in assessing the
legality of the derogation. Only Lord Scott directly addressed this issue (at
[151]). While he confessed (at [152]) to having ˜doubts™ and ˜di¬culty™ in
understanding how the domestic courts could, in e¬ect, enforce Article 15 when
it had not been incorporated into domestic law, he set such doubts aside and
considered the case on this footing on the basis that the Attorney General,
arguing the Government™s case, had ˜expressly accepted™ that this was how the
case should proceed. It seems to have been a curiously generous concession on
the Government™s part “ part of a strategy, perhaps, to keep the case away from
the Court of Human Rights in Strasbourg?
It will be seen that there are two main tests contained in Article 15(1), both
of which must be satis¬ed for a derogation to be lawful. The ¬rst is that the dero-
gation must be made in ˜time of war or other public emergency threatening the
life of the nation™; the second is that the measures taken must be ˜strictly
required by the exigencies of the situation™. In A, eight of the Law Lords (ie, all
except Lord Ho¬mann) accepted that the derogation was made in time of
public emergency threatening the life of the nation. Of these eight, all but one
(Lord Walker) held that the derogating measures were not strictly necessary and
were therefore unlawful. We deal with each of these points in turn.
Public emergency threatening the life of the nation. Lord Bingham ruled, ˜not
without misgiving (forti¬ed by reading the opinion of . . . Lord Ho¬mann)™ (at
[26]) for the Secretary of State on this point for two main reasons: ¬rst, because
under the case law of the European Court of Human Rights states are given a very
wide margin of appreciation in determining whether there is such a public emer-
gency and secondly, because ˜great weight should be given to the judgment of the
Home Secretary, his colleagues and Parliament on this question™ (at [29]). Lord
765 Liberty and the constitution

Bingham expressly relied on Lord Ho¬mann™s opinion in Rehman (above) in
support of this position. Lord Hope stated that, while he was ˜content . . . to accept
that the questions whether there is an emergency and whether it threatens the life
of the nation are pre-eminently for the executive and Parliament™ and that while
the ˜judgment that has to be formed on these issues lies outside the expertise of
the courts . . . it is nevertheless open to the judiciary to examine the nature of the
situation that has been identi¬ed by government as constituting the emergency™
(at [116]). Upon such an examination there was, in Lord Hope™s view, ˜ample evi-
dence . . . to show that the government were fully justi¬ed in taking the view . . .
that there was an emergency threatening the life of the nation™ (at [118]). Lord
Scott was more guarded: he stated that ˜For my part I do not doubt that there is
a terrorist threat to this country . . . But I do have very great doubt whether the
“public emergency” is one that justi¬es the description of “threatening the life of
the nation”. Nonetheless, I would, for my part, be prepared to allow the Secretary
of State the bene¬t of the doubt on this point and accept that the threshold cri-
terion of Article 15 is satis¬ed™ (at [154]). Baroness Hale ruled in the following
terms, at [226]:

The courts™ power to rule on the validity of the derogation is [one] of the safeguards enacted
by Parliament in this carefully constructed package. It would be meaningless if we could only
rubber-stamp what the Home Secretary and Parliament have done. But any sensible court,
like any sensible person, recognises the limits of its expertise. Assessing the strength of
a general threat to the life of the nation is, or should be, within the expertise of the
Government and its advisers. They may, as recent events have shown, not always get it right.
But courts too do not always get things right. It would be very surprising if the courts were
better able to make that sort of judgment than the Government. Protecting the life of the
nation is one of the first tasks of a Government in a world of nation states. That does not
mean that the courts could never intervene. Unwarranted declarations of emergency are a
familiar tool of tyranny. If a Government were to declare a public emergency where patently
there was no such thing, it would be the duty of the court to say so. But we are here con-
sidering the immediate aftermath of the unforgettable events of 11 September 2001. The
attacks launched on the United States on that date were clearly intended to threaten the life
of that nation. SIAC were satisfied that the . . . material before them justified the conclusion
that there was also a public emergency threatening the life of this nation. I, for one, would
not feel qualified or even inclined to disagree.

Lord Ho¬mann was the only one of their Lordships to come to a di¬erent view
on this point. His opinion on the matter was expressed in remarkably forthright
terms, at [91]“[97]:

What is meant by ˜threatening the life of the nation™? The ˜nation™ is a social organism, living
in its territory (in this case, the United Kingdom) under its own form of government and
subject to a system of laws which expresses its own political and moral values. When one
766 British Government and the Constitution

speaks of a threat to the ˜life™ of the nation, the word life is being used in a metaphorical
sense. The life of the nation is not coterminous with the lives of its people. The nation, its
institutions and values, endure through generations. In many important respects, England is
the same nation as it was at the time of the first Elizabeth or the Glorious Revolution. The
Armada threatened to destroy the life of the nation, not by loss of life in battle, but by sub-
jecting English institutions to the rule of Spain and the Inquisition. The same was true of the
threat posed to the United Kingdom by Nazi Germany in the Second World War. This country,
more than any other in the world, has an unbroken history of living for centuries under insti-
tutions and in accordance with values which show a recognisable continuity . . .
The Home Secretary has adduced evidence . . . to show the existence of a threat of serious
terrorist outrages . . . [D]espite the widespread scepticism which has attached to intelligence
assessments since the fiasco over Iraqi weapons of mass destruction, I am willing to accept
that credible evidence of such plots exists. The events of 11 September 2001 in New York
and Washington and 11 March 2003 in Madrid make it entirely likely that the threat of similar
atrocities in the United Kingdom is a real one.
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 destruc-
tion 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


. 140
( 155 .)