A v Secretary of State for the Home Department (No. 2) [2005]

Following the events of 11 September 2001 in the United States, Parliament enacted the Anti-terrorism, Crime and Security Act 2001, and made the Human Rights Act 1998 (Designated Derogation) Order 2001, SI 2001/3644, relating to art 5(1)(f) of the European Convention on Human Rights. Article 15 of the Convention provided for derogation in time of emergency. The claimants were all certified as suspected international terrorists under s 21 of the Act and detained under s 23. All were foreign (non-United Kingdom) nationals. None had been the subject of any criminal charge. In none of their cases was a criminal trial in prospect.

The claimants appealed to the Special Immigration Appeals Commission (SIAC), which allowed their appeals only on the ground that the 2001 Order and the 2001 Act were discriminatory because they only allowed suspected terrorists who were non-nationals to be detained. That decision was reversed by the Court of Appeal. The claimants appealed.

They contended (i) that there neither had been nor was a 'public emergency threatening the life of the nation' within the meaning or art 15(1); (ii) that the steps taken by the government in derogation of its obligations under art 5 were not proportionate; (iii) and that s 23 was discriminatory.Held - The appeals would be allowed (Lord Walker dissenting).

(1) The claimants had not shown a sufficiently strong ground to warrant displacing the Secretary of State's decision that there was a public emergency within the meaning of art 15(1).It had not been shown that SIAC had misdirected itself in law on that issue. The view which it had accepted was one it could have reached on the open evidence in the case. Moreover, great weight should be given to the judgment of the Secretary of State, his colleagues and Parliament on the question, because they had been called on to exercise a pre-eminently political judgment.

(2) The conclusion…