A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)

A derogation from the right to liberty under article 5 of the European Convention on Human Rights must be confined to measures strictly required by the emergency. Courts must determine proportionality for themselves, while giving appropriate weight to executive assessments of national security.

Indefinite detention without charge or trial was neither rationally connected nor proportionate to the identified terrorist threat where it applied only to non-nationals, left comparable threats from nationals subject to lesser measures, and allowed detainees to leave for other countries. The distinction also violated article 14. Nationality or immigration status could not justify unequal protection of liberty in a security, rather than immigration, context.

In conjoined appeals, nine non-UK nationals challenged their certification under section 21 of the Anti-terrorism, Crime and Security Act 2001 and detention under section 23. They had not been charged or tried. They could not lawfully be removed but were detained because the Secretary of State suspected them of international terrorism.

The Special Immigration Appeals Commission quashed the designated derogation from article 5(1) of the European Convention on Human Rights and held the scheme discriminatory. The Court of Appeal, in A (FC) and others (FC) v Secretary of State for the Home Department [2002] EWCA Civ 1502, allowed the Secretary of State's appeal and rejected the detainees' cross-appeals. The central issues were whether a public emergency threatened the life of the nation, whether detention was strictly required by its exigencies, and whether confinement of the power to non-nationals was unjustifiably discriminatory.

1. Disposition. The House allowed the appeals by a majority of eight to one. It quashed the Human Rights Act 1998 (Designated Derogation) Order 2001 and declared under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with articles 5 and 14 of the Convention. Lord Walker dissented.
2. Public emergency. Lord Bingham, with Lord Nicholls, Lord Hope, Lord Scott, Lord Rodger, Baroness Hale and Lord Carswell agreeing on substance, accepted that a public emergency threatening the life of the nation existed. The assessment involved predictive and predominantly political judgment. Great weight was therefore due to the executive and Parliament. Lord Hoffmann disagreed on this issue. In his view, serious terrorist violence did not threaten the nation's institutions or existence as a civil community.
3. Strict necessity and judicial scrutiny. Per Lord Bingham, the phrase “strictly required” imposed a proportionality inquiry. The courts had a democratic mandate under the Human Rights Act 1998 to determine whether Convention rights had been breached. Appropriate respect for political judgment did not preclude close judicial scrutiny of indefinite detention without charge or trial. Lord Hope considered that domestic judicial review had to apply article 15(1) rigorously, especially because liberty was at stake.
4. Disproportionality. Per Lord Bingham, the scheme was not rationally connected to the security objective and impaired liberty more than necessary. It detained only non-nationals although British nationals presented a comparable threat. It also allowed suspected terrorists to leave the United Kingdom. Less restrictive measures were used against persons outside Part 4, and the Secretary of State had not shown why comparable measures would not suffice for the detainees. SIAC and the Court of Appeal erred in treating proportionality as effectively a question of fact insulated from appellate review.
5. Discrimination. Per Lord Bingham, suspected terrorists who were nationals and non-nationals were relevantly analogous because both were irremovable and presented the same security risk. Immigration status could justify different treatment in immigration control, but not in responding to a security threat unrelated to nationality. The difference lacked objective and reasonable justification, violated article 14, and was inconsistent with the United Kingdom's other international obligations for article 15 purposes.
6. Effect of the declaration. Lord Scott and Baroness Hale emphasised that the declaration did not invalidate section 23 or itself order the detainees' release. The validity and amendment of primary legislation remained matters for Parliament.

1. House of Lords: Allowed the appeals by eight votes to one, quashed the designated derogation, and declared section 23 of the Anti-terrorism, Crime and Security Act 2001 incompatible with articles 5 and 14.
2. Court of Appeal: In A (FC) and others (FC) v Secretary of State for the Home Department [2002] EWCA Civ 1502, [2004] QB 335, allowed the Secretary of State's appeal from SIAC and dismissed the detainees' cross-appeals.
3. Special Immigration Appeals Commission: In its decision reported at [2002] HRLR 1274, quashed the Derogation Order and held that the derogation was discriminatory, while rejecting the challenge to the existence of a qualifying emergency.