January 01, 2005UK Supreme Court Finalised Counter-Terrorism Intervenor
The facts of the case
The Appellants were individuals who the Home Office suspected to be terrorists, and who had all been detained without charge or trial under section 23 of the Anti-Terrorism, Crime and Security Act 2001(“the 2001 Act”). The provision permitting their detention arose from a derogation from Article 5(1) of the European Convention on Human Rights (“the Convention”), under Article 15 of the Convention, following the events of 11 September 2001. The Appellants appealed their detention to the Special Immigration Appeals Commission (“SIAC”). SIAC found that their detention was unlawful under Articles 5 and 14 of the Convention, on the basis that the Appellants had been discriminated against, due to their nationality, as they were suspected British terrorists who could not be detained under the relevant provision. The Court of Appeal reversed this finding. The Appellants then appealed to the House of Lords (“the Court”).
RSI’s intervention in the case
RSI (then British Irish Rights Watch) intervened in the case along with the AIRE Centre (Advice on Individual Rights in Europe), Amnesty International Ltd, the Association for the Prevention of Torture, the Committee on the Administration of Justice, Doctors for Human Rights, Human Rights Watch, the International Federation of Human Rights, INTERIGHTS, the Law Society of England and Wales, Liberty, the Medical Foundation for the Care of Victims of Torture, REDRESS, and the World Organisation Against Torture. As 14 organisations with experience working against the use of torture and other cruel, inhuman or degrading treatment, these organisations intervened based on a grave concern about the undermining of the absolute and non-derogable prohibition on torture and other forms of ill-treatment under international law.
To that end, the Interveners submitted that, if the decision of the Court of Appeal were upheld, states would be provided with a means to circumvent the jus cogens prohibition on torture. They further asserted that the exclusionary rule—which prevents the use, reliance, proffering and admission of information which has been or may have been obtained as a result of a violation of the prohibition on torture—should apply in the present case, so as to uphold the rule of law. Finally, they submitted that, if the Court of Appeal’s decision were upheld, there would be an irreconcilable conflict between the UK’s international obligations and the exclusionary rule, and the UK domestic law.
The judgment in the case
The Court held, in accordance with SIAC’s original assessment, that the derogation under Article 15 of the Convention was legitimate on the basis of the large-scale terrorist attacks that had occurred, and the Court was bound to afford great weight to the Executive and Parliament’s assessment that there was a risk of terrorism in the UK, albeit at an unspecified time.
However, the Court also held that, although a response to a terrorist threat or attack was a matter of political judgment for the Executive and Parliament, where Convention rights were impugned by governmental response, the Court was required to protect them by adopting an intensive standard of review of whether Convention rights had been breached in the process. In so doing, the Court held that section 23 of the 2001 Act did not rationally address the threat in question, on the basis that it did not apply to British suspected terrorists, and could apply to non-British individuals who did not pose a threat to the UK’s national security. As a result, it was a disproportionate measure to the threat it sought to address. Further, the Court held that section 23 of the 2001 Act discriminated against the Appellants on the basis of their nationality, and so was in breach of the UK’s international treaty obligations to afford equality before the law. The Derogation Order was accordingly quashed, and section 23 of the 2001 Act was declared to be incompatible with articles 5 and 14 of the Convention.
What does this mean for our work?
As an organisation deeply committed to the elaboration of international law and standards related to the protection and promotion of human rights, this case exemplifies RSI’s longstanding commitment both to intervening to in cases where counterterrorism measures threaten to undermine the rule of law, and to collaborating with civil society to do so.
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