Anti-Terrorism Measures

• Author: International Law Group

In December 2001, the British Home Secretary certified and detained eight of the present appellants now before the House of Lords under Sections 21 and 23 of the Anti-terrorism, Crime and Security Act of 2001. The same thing happened to No. 9 a few months later. Appellants 1 and 2 invoked their rights to leave the U. K. Another ended up in the Broadmoor Hospital for the mentally ill. Another got out on strictly conditioned bail and the Secretary let a third go unconditionally.

All nine attack a decision of the Court of Appeal in October 2002. It granted the Home Secretary's appeal against the ruling of the Special Immigration Appeals Commission (SIAC) of July 2002 and dismissed the appellants' cross-appeals.

All appellants are foreign (non-UK) nationals. None has been charged with a crime. In no case is a criminal trial contemplated.

All challenge the lawfulness of their detention. More specifically, they all contend that such detention was incompatible with duties binding on the United Kingdom under the European Convention on Human Rights and Fundamental Freedoms, given domestic U. K. effect by the Human Rights Act of 1998.

They contend that the United Kingdom was not legally entitled to derogate from those obligations. Assuming arguendo that it was, its derogation nonetheless fails to square with the Convention and so could not justify the detention. Moreover, they urge that the statutory provisions under which they are being detained fail to comport with the Convention.

The only duty of the House of Lords in its purely judicial capacity, is to determine the legal validity of the appellants' challenges. The mounting of the attacks against the United States on September 11, 2001, inevitably raised deep concerns in other western countries about their own security against terrorism. This was particularly so for nations such as the United Kingdom, who openly stood behind the United States and its military response to Al-Qaeda, the responsible organization. Usama bin Laden, its moving spirit, aimed threats specifically against the United Kingdom and its people.

The British Government reacted to the events of 11 September in two relevant ways. First, it introduced (and Parliament, subject to amendment, very swiftly enacted) what became Part 4 of the Anti-terrorism, Crime and Security Act of 2001. Secondly, it made an order under the Human Rights Act of 1998 (the Derogation Order).

First, ¶ 2(2) of Schedule 3 in the Immigration Act of 1971 authorized the Secretary of State to detain a non-British national pending the making of a deportation order against him or her.

Paragraph 2(3) of the same schedule empowered the Secretary of State to detain a person against whom a deportation order had been made "pending his removal or departure from the United Kingdom". [Cites]. The English courts later ruled that such detention was allowable only for such time as was reasonably necessary for the process of deportation to be carried out.

Article 5(1) of the Convention guarantees the fundamental human right of personal freedom. In Article 1, contracting states undertake to secure the Convention rights and freedoms to "everyone within their jurisdiction". Since the right of personal freedom cannot be absolute, Article 5(1) allows for certain exceptions. One exception is the key to these appeals: "(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: ...(f) the lawful arrest or detention of . . . a person against whom action is being taken with a view to deportation ..."

In Chahal v United Kingdom 23 E.H.R.R. 413 (1996) before the European Court of Human Rights, the U.K. had detained petitioner for several years. He had objected to his deportation back to India on the grounds that he faced a real risk of death, or of torture in custody contrary to Article 3 of the European Convention. It provides in absolute terms that: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment.". The question then arises whether invoking a deportation procedure can apply if it will end up submitting the deportee to the violation of his absolute Article 3 rights. If the foreign citizen is, in effect, non-deportable, can the state justify his indefinite detention as part of a deportation process?

"The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another state, the responsibility of the contracting state to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration." [¶ 80]

The European Convention grants to member states a limited right to derogate from some articles of the Convention (including art 5, although not art 3). The relevant provision...