Al-Jedda, R (on the application of) v Secretary of State for Defence

Convention rights enforceable under the Human Rights Act 1998 have the same scope as the corresponding rights under the European Convention on Human Rights. They do not have an autonomous domestic meaning of wider effect.

A Chapter VII Security Council resolution may authorise detention inconsistent with Article 5 ECHR. Articles 25 and 103 of the UN Charter give effect to that authorisation over conflicting treaty obligations. Procedural defects in an Article 78 Geneva IV review do not automatically make substantively justified internment unlawful. Whether detention remains necessary is assessed on the evidence relevant to security in Iraq, not by reference merely to a possible alternative regime in the United Kingdom.

The claimant, an Iraqi and British national, was detained by British forces in Iraq because he was suspected of involvement in terrorist activity. He challenged his continued detention and the refusal to return him to the United Kingdom.

He alleged breaches of Article 5 of Schedule 1 to the Human Rights Act 1998. The Secretary of State relied on United Nations Security Council Resolution 1546, which authorised the multinational force to take necessary measures in Iraq, including internment where necessary for imperative reasons of security.

The central questions were whether the resolution displaced Article 5, whether the detention complied with the applicable Geneva IV procedure, and whether the claimant’s possible return to the United Kingdom made continued detention unnecessary or irrational.

1. Jurisdiction and Article 5(4). The court proceeded on the accepted basis that detention in a British military facility in Iraq fell within the jurisdictional scope of the Human Rights Act 1998. If Article 5 applied, the detention breached Article 5(1), but the claimant had not established a breach of Article 5(4). The adequacy of judicial review and any special advocate procedure depended on the facts of an actual challenge and could not be determined prospectively.
2. Scope of Convention rights under the Act. Reading sections 1(1) and 21 in the context of sections 2, 3, 6 and 7, the court held that the Act confers rights of the same scope as those enforceable in Strasbourg. The Act does not create domestically autonomous rights of greater breadth.
3. Effect of UNSCR 1546. In context, paragraph 10 and the annexed Powell letter continued the power previously available under Article 78 of Geneva IV to intern persons where necessary for imperative reasons of security. The resolution therefore authorised detention inconsistent with Article 5 ECHR. The court rejected an interpretive presumption analogous to the principle in R v Secretary of State for the Home Department, ex parte Simms because the resolution was a Chapter VII measure directed to restoring international peace and security.
4. Article 103 of the UN Charter. Articles 25 and 103 applied to authorisations as well as mandatory Security Council measures. Otherwise the Security Council could not effectively authorise military action by member States. Actions taken pursuant to UNSCR 1546 therefore prevailed over conflicting treaty obligations, including Article 5 ECHR.
5. Article 78 procedure. The review arrangements did not strictly comply with Article 78 because the formal decision was made by a single commander rather than an administrative board. The defect was technical and did not invalidate detention where the substantive security condition was met. At most, procedural non-compliance might leave Article 5(4) available, but no breach was established in these proceedings.
6. Necessity and return. The unchallenged assessment was that detention was necessary for imperative reasons of security in Iraq. A possible control-order regime in the United Kingdom did not, without detailed examination of the factual basis, establish that Iraqi detention was unnecessary. The court was also inclined to accept that using detention powers to secure removal from Iraq would fall outside UNSCR 1546. The claim was dismissed, permission to appeal was granted, and costs orders were made.

First-instance judicial review proceedings. The claim was dismissed by the Divisional Court. Permission to appeal was granted, with the time for filing the notice of appeal extended to 7 October 2005.