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( 155 .)


existence as a civil community.
For these reasons I think that the Special Immigration Appeals Commission made an error
of law and that the appeal ought to be allowed . . .

His Lordship then concluded his opinion with the following statement, at [97]:

The real threat to the life of the nation, in the sense of a people living in accordance with
its traditional laws and political values, comes not from terrorism but from laws such as these.
That is the true measure of what terrorism may achieve. It is for Parliament to decide whether
to give the terrorists such a victory.
767 Liberty and the constitution

While others of their Lordships in A cited Lord Ho¬mann™s opinion in
Rehman, Lord Ho¬mann himself chose not to. We may ask: are his opinions in
the two cases reconcilable? If not, what caused him so violently to change his
mind and so vehemently to speak out? Later in this chapter we shall examine
another Lord Ho¬mann opinion, in a further case concerning protests about
the Iraq war, that was decided after A (R v Jones (Margaret) [2006] UKHL 16,
[2006] 2 WLR 772, below, pp 771“2). When we come to that case we shall see
that his attitude to questions of national security and personal liberty appear to
have changed once again: an early indication, perhaps, that Lord Ho¬mann™s
distinctive approach in A is not likely to be precedent setting? We may also ask:
how did he know? How did Lord Ho¬mann know that the threat faced by the
United Kingdom, while serious, does not threaten the life of the nation? We may
ask the same question of Lord Hope (see above): how did Lord Hope know that
the life of the nation was threatened? After all, none of their Lordships saw the
˜closed material™, presumably containing intelligence assessments and the like,
which had been examined by SIAC. Bear in mind that the Home Secretary had
informed Parliament in October 2001 that ˜there is no immediate intelligence
pointing to a speci¬c threat to the United Kingdom™ (HC Deb vol 372, col 925,
15 October 2001) and had repeated in March 2002 that ˜it would be wrong to
say that we have evidence of a particular threat™ (see Lord Bingham, at [21]).
The question is the more pressing because the majority of their Lordships
did not actually need to answer it at all. Given that a majority held that the
measures taken (in terms of inde¬nite detention without trial) were, in any
event, not strictly required, why could not the House of Lords do as the Joint
Committee on Human Rights had done in its various parliamentary reports on
the 2001 Act, and leave the question open as to whether the United Kingdom
faced a public emergency threatening the life of the nation? The House of Lords
could have quashed the derogation order and made a declaration of incompat-
ibility in respect of the relevant provisions of the Act without having to decide
this question at all.
Strictly required. It is to the ˜strictly required™ point that we can now turn. On
this matter their Lordships were considerably more persuasive than, with
respect, they were with regard to the previous issue. There were two ¬‚aws with
the Government™s scheme, both of which undermined its claim that detention
without trial was ˜strictly required™ within the meaning of Article 15(1). The
¬rst was that while the Government conceded that the threat from international
terrorism was not limited to non-nationals, the power to detain without trial
was so limited (see eg, Lord Bingham, at [32]). If measures short of inde¬nite
detention without trial were su¬cient for British citizens suspected of involve-
ment in or support for international terrorism, then so too were they su¬cient
for non-nationals. The second was that all those detained under the scheme
were ˜free to leave™ the United Kingdom if they chose to do so “ indeed, as we
have seen, the Government claimed that it wanted the detainees to leave and
would have deported them if it had been legal to do so. A number of those
768 British Government and the Constitution

detained did indeed leave the United Kingdom for other countries. One left for
France, where he was subsequently released. Yet, if the detainees were such a
threat to the United Kingdom that their inde¬nite incarceration was required,
why allow them to leave for and be released in other countries, where they
would be relatively free to plot their treachery? These twin irrationalities within
the scheme fatally undermined it. As Baroness Hale expressed it, at [228], [231]:

There is every reason to think that there are British nationals living here who are interna-
tional terrorists within the meaning of the Act; who cannot be shown to be such in a court
of law; and who cannot be deported to another country because they have every right to be
here. Yet the Government does not think that it is necessary to lock them up. Indeed, it has
publicly stated that locking up nationals is a Draconian step which could not at present be
justified. But it has provided us with no real explanation of why it is necessary to lock up
one group of people sharing exactly the same characteristics as another group which it does
not think necessary to lock up . . . The conclusion has to be that it is not necessary to lock
up the nationals. Other ways must have been found to contain the threat which they present.
And if it is not necessary to lock up the nationals it cannot be necessary to lock up the
foreigners. It is not strictly required by the exigencies of the situation.

Discrimination. The ¬nal aspect of their Lordships™ ruling in A concerned
discrimination. We saw above why the Government presented the measures in
Part IV as ˜immigration measures™ that could apply only to persons subject to
immigration control (ie, to non-nationals). While the Court of Appeal accepted
this analysis, the majority of the House of Lords did not. For the majority of
their Lordships the appropriate comparator with the detainees was not those
with no right of abode who are not suspected international terrorists but those
with a right of abode who are suspected international terrorists (see eg, Lord
Bingham at [53]“[54] and Lord Nicholls at [76]). Seen in this light the measures
in Part IV were discriminatory and were, accordingly, held to be in breach of
Article 14 ECHR as well as being in breach of Article 5.
(See further on the A case the four case notes on the decision at (2005) 68
MLR 654, by Hickman, Tierney, Dyzenhaus and Hiebert; see also Lord Lester
[2005] PL 249, Tomkins [2005] PL 259 and Feldman [2005] CLJ 271.)

(iii) Analysis and subsequent events
Professor Feldman ([2005] CLJ 271, 273) described the decision of the House of
Lords in A as ˜perhaps the most powerful judicial defence of liberty since Leach
v Money (1765) 3 Burr 1692 and Somersett v Stewart (1772) 20 St Tr 1™ and
claimed that it ˜will long remain a benchmark in public law™. In the light of the
case law, from Zadig to Rehman, surveyed above, the decision in A is indeed
remarkable. Three factors, however, ought to qualify our assessment of its impor-
tance and impact. The ¬rst is that there was nothing in their Lordships™ opinions
that had not already been argued for, extremely powerfully, by a series of com-
mittees reviewing the operation of the 2001 Act. The parliamentary Joint
769 Liberty and the constitution

Committee on Human Rights and a group of Privy Counsellors appointed under
section 122 of the Act to review it had already concluded that Part IV of the Act
was not ˜a sustainable way of addressing the problem of terrorist suspects in the
United Kingdom™ and that ˜it should be replaced™ with a new scheme that applied
equally to nationals and non-nationals alike and that did not require a deroga-
tion from Article 5 ECHR (Report of the Privy Counsellor Review Committee, HC
100 of 2003“04, p 5). Moreover, it was not only in respect of the Part IV powers
of inde¬nite detention without trial that these reviewing committees were deeply
critical of the 2001 Act. The Report of the Privy Counsellor Review Committee was,
in this sense, not only an equally powerful, but also a more complete defence of
liberty than anything the Law Lords were able to provide.
Secondly, we should bear in mind ˜what happened next™. As we saw in
chapter 5 (see above, pp 277“8), the provisions of the 2001 Act concerning
inde¬nite detention without trial were replaced with new provisions under the
Prevention of Terrorism Act 2005. Under section 2(1) of the 2005 Act the
Secretary of State may impose a ˜control order™ on any individual (whether a
British national or not):

if he (a) has reasonable grounds for suspecting that the individual is or has been involved
in terrorism-related activity; and (b) considers that it is necessary, for purposes connected
with protecting members of the public from a risk of terrorism, to make a control order
imposing obligations on that individual.

Control orders may include a considerable range of restrictions on an individual,
listed in section 1(4) as follows:

(a) a prohibition or restriction on his possession or use of specified articles or substances;
(b) a prohibition or restriction on his use of specified services or specified facilities, or on
his carrying on specified activities;
(c) a restriction in respect of his work or other occupation, or in respect of his business;
(d) a restriction on his association or communications with specified persons or with other
persons generally;
(e) a restriction in respect of his place of residence or on the persons to whom he gives
access to his place of residence;
(f) a prohibition on his being at specified places or within a specified area at specified times
or on specified days;
(g) a prohibition or restriction on his movements to, from or within the United Kingdom, a
specified part of the United Kingdom or a specified place or area within the United
(h) a requirement on him to comply with such other prohibitions or restrictions on his move-
ments as may be imposed, for a period not exceeding 24 hours, by directions given to
him in the specified manner, by a specified person and for the purpose of securing com-
pliance with other obligations imposed by or under the order;
770 British Government and the Constitution

(i) a requirement on him to surrender his passport, or anything in his possession to which
a prohibition or restriction imposed by the order relates, to a specified person for a
period not exceeding the period for which the order remains in force;
(j) a requirement on him to give access to specified persons to his place of residence or to
other premises to which he has power to grant access;
(k) a requirement on him to allow specified persons to search that place or any such
premises for the purpose of ascertaining whether obligations imposed by or under the
order have been, are being or are about to be contravened;
(l) a requirement on him to allow specified persons, either for that purpose or for the
purpose of securing that the order is complied with, to remove anything found in that
place or on any such premises and to subject it to tests or to retain it for a period not
exceeding the period for which the order remains in force;
(m) a requirement on him to allow himself to be photographed;
(n) a requirement on him to co-operate with specified arrangements for enabling his move-
ments, communications or other activities to be monitored by electronic or other means;
(o) a requirement on him to comply with a demand made in the specified manner to
provide information to a specified person in accordance with the demand;
(p) a requirement on him to report to a specified person at specified times and places.

Control orders made by the Secretary of State are known as ˜non-derogating
control orders™. Control orders that infringe the right to liberty under Article 5
and that, to be lawful, require a derogation to be made from Article 5, may be
imposed only by a court (s 4).
Control orders have been challenged in two sets of legal proceedings. In the
¬rst, several individuals who had been subjected to non-derogating control
orders argued that the restrictions on their liberty were so severe as to engage “
and to infringe “ their Convention rights under Article 5. Sullivan J in the
Administrative Court ruled in the individuals™ favour and the Court of Appeal
dismissed the Secretary of State™s appeal: see Secretary of State for the Home
Department v JJ and others [2006] EWHC 1623 (Admin) and [2006] EWCA
Civ 1141, [2006] 3 WLR 866. The control orders at issue in this case required
the individuals concerned to remain within their one-bedroom ¬‚ats at all times
save for a period of six hours from 10.00am until 4.00pm; visitors had to be
authorised by the Home O¬ce, to which name, address, date of birth and pho-
tographic identity had to be supplied; the ¬‚ats were subject to spot searches by
the police; and during the six hours of the day when the individuals were not
con¬ned to their ¬‚ats they remained con¬ned to certain restricted urban
areas, which deliberately did not extend (except in one case) to areas where the
individuals had previously lived. As Sullivan J expressed it:

I do not consider that this is a borderline case. The collective impact of the obligations
[imposed] could not sensibly be described as mere restrictions upon the respondents™ liberty
of movement. In terms of the length of the curfew period (18 hours), the extent of the
771 Liberty and the constitution

obligations and their intrusive impact on the respondents™ ability to lead a normal life,
whether inside their residences within the curfew period, or for the six hour period outside
it, these control orders go far beyond the restrictions in those cases where the European Court
of Human Rights has concluded that there has been a restriction upon but not a deprivation
of liberty.

The second set of legal proceedings concerning control orders challenged the
degree of judicial protection a¬orded by section 3 of the 2005 Act to individuals
subject to such orders: see Secretary of State for the Home Department v MB
[2006] EWHC 1000 (Admin), [2006] EWCA Civ 1140, [2006] 3 WLR 839.
Sullivan J held that the degree of judicial supervision was inadequate to satisfy
the requirements of Article 6 ECHR. This was principally because the court™s role
was limited and because decisions could be made on the basis of evidence that
was not disclosed to the individual concerned. The judge granted a declaration
of incompatibility (under section 4 of the HRA) accordingly. However, the judg-
ment of Sullivan J was overturned by the Court of Appeal, which held that the
judicial supervision of control orders under section 3 of the 2005 Act was
su¬cient to meet the requirements of the right to a fair trial under Article 6.
The ¬nal factor we should bear in mind when assessing the impact of the
House of Lords™ decision in A is the extent to which the more robust “ or more
critical “ attitude the majority of their Lordships displayed towards the rela-
tionship between personal freedom and national security has been sustained in
subsequent case law. Two subsequent House of Lords decisions suggest that,
rather than becoming the ˜benchmark™ that Professor Feldman predicted, the
A case is already beginning to look like a one-o¬. As we saw in chapter 5, in
R (Gillan) v Metropolitan Police Commissioner [2006] UKHL 12, [2006] 2 AC
307, the House of Lords ruled that what had been described in a lower court as
the ˜extraordinary™ and ˜sweeping™ stop and search powers contained in the
Terrorism Act 2000 (ss 44“47) may lawfully be used in the context of the police
stopping apparently peaceful protesters from approaching an international
arms fair to protest against Britain™s involvement in the arms trade. The appel-
lants™ argument that the powers should be read as being available only where
there were reasonable grounds for considering that their use was necessary and
suitable for the prevention of terrorism was dismissed. In R v Jones (Margaret)
[2006] UKHL 16, [2006] 2 WLR 772, several anti-war protesters were prose-
cuted for various o¬ences (such as criminal damage and aggravated trespass)
that they had committed while breaking into military bases in order to protest
against the Iraq war. Their actions were described by Lord Bingham (at [25]) as
˜entirely peaceable and involv[ing] no violence of any kind to any person™, albeit
that they caused damage to property. The defendants argued in their defence
that their actions were lawful under section 3 of the Criminal Law Act 1967,
which provides that ˜a person may use such force as is reasonable in the cir-
cumstances in the prevention of crime™. The Iraq war, they argued, was a crime
772 British Government and the Constitution

of aggression, contrary to customary international law, customary international
law being recognised and enforced by domestic law and falling, therefore,
within the meaning of ˜crime™ for the purposes of section 3. This argument was
unsuccessful. Lord Bingham ruled that the 1967 Act applied only to domestic
crime and not to crimes contrary to international law. He noted that it had
never been a defence to a charge under the Treason Act 1351 or under the
common law of sedition that the Crown or the government had committed
itself to an unjust or unlawful cause (at [31]). What is particularly notable about
the case is the opinion of Lord Ho¬mann, which was considerably more remi-
niscent of his opinion in Rehman above (pp 761“2), than of his dissenting
opinion in the A case. His Lordship ruled, for example, (at [66]) that, ˜The deci-
sion to go to war, whether one thinks it was right or wrong, fell squarely within
the discretionary powers of the Crown to defend the realm and conduct its
foreign a¬airs™. Moreover, his Lordship added to his opinion several paragraphs
on what he termed ˜the limits of self-help™ and civil disobedience, in which he
stated as follows, at [87]“[88]:

Of course citizens are entitled, indeed required, to refuse to participate in war crimes. But if
they are allowed to use force against military installations simply to give effect to their own
honestly held view of the legality of what the armed forces of the Crown are doing, the
Statute of Treason would become a dead letter.
In my opinion, therefore, the District Judges would have been right to convict even if
aggression had been a crime in domestic law. The apprehension, however honest, that such


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( 155 .)