human rights, derogation and anti-terrorist detention

Saskatchewan Law Review2006

Comparative Constitutionalism and Rights

Human Rights, Derogation and Anti-Terrorist Detention

Rhonda Powell [FNa1]

Copyright © 2006 by Saskatchewan Law Review; Rhonda Powell

In this article, I question whether domestic and international luman rights law have played a role inrestraining the practice and conditions of anti-terrorist detention in the United Kingdom since the intro-duction of the Human Rights Act 1998. I conclude that the courts have taken the opportunity to apply theEuropean Convention for the Protection of Human Rights and Fundamental Freedoms and that the legis-lature has shown itself able to actively consider human rights issues when passing anti-terrorist detentionlegislation. Nevertheless, there is room for the courts to take a less deferential approach in questions ofderogation from the European Convention for the Protection of Human Rights and FundamentalFreedoms and the mechanism of parliamentary scrutiny over the executive is not preventing legislationwhich breaches human rights standards. There is still work to be done in creating a true rights culture inthe United Kingdom.

I. INTRODUCTION

In 2004, K.D. Ewing published an article questioning the utility of the United Kingdom's Human Rights Act1998 [FN1] (HRA 1998) in improving the protection of human rights within the United Kingdom. [FN2] Havingdiscussed the reasons for incorporating the European Convention for the Protection of Human Rights and Fun-damental Freedoms [FN3] (ECHR) into United Kingdom domestic law in this way, Ewing identified three re-maining paradoxes:

• Despite the common law being held out as an institution built on the preservation of liberty, therule of law and democracy, a number of illiberal measures have forgone its surveillance;

• Judges were one of the most fervent groups in support of the incorporation of the ECHR.However, judges have historically failed to use powers available to them for the protection of humanrights; [FN4]

• Despite the introduction of the HRA 1998, which imposes a duty on all arms of government toact in conformity with the ECHR, [FN5] the legislature has continued to enact legislation that interfereswith civil liberties. [FN6]

Ewing then goes on to discuss the ways that judges have used their new powers under the HRA 1998, sug-gesting that they have been overly deferential to decision-makers and have failed to take the opportunity given

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to them by the new human rights regime. He concludes:

While it is true that the HRA has thus allowed a wider range of questions to be asked before thecourts, by applying the same deference that affected the approach to statutory interpretation and judicialreview in earlier cases, the answer remains the same: it simply takes more words to produce and moretime to read. [FN7]

This is surprising. One would (perhaps naively) have assumed that the incorporation of the ECHR intoUnited Kingdom domestic law would have an obvious impact on the substantive protection of human rights. In-deed, it was partially “sold on the basis that it would lead to the better protection of civil liberties in national se-curity as in other areas.” [FN8]

My interest lies in anti-terrorism detention laws, which raise a number of human rights concerns related tothe right to freedom from arbitrary detention, to procedural protections owed to detainees, to the role of the courtin protecting these standards and more broadly, to the liberal conception of personal freedom.

The United Kingdom has a long history of detaining people who are suspected of being involved in terrorismbut against whom a successful criminal prosecution cannot be brought. [FN9] This practice is supported by someon the ground that persons with suspected associations with terrorist organisations should not be allowed to livefreely in society because of the potential risk that they pose to others. Criminal prosecution would not be suc-cessful, often because the principle evidence is inadmissible in court, using evidence would put informers at riskor jeopardize future operations, or because the evidence is too tentative to withstand judicial scrutiny. [FN10] Inthe case of non-residents, deportation or expulsion may be prevented by international human rights law. [FN11]Therefore, some other means of detention is necessary in the public interest.

The question thus arises whether, in the case of anti-terrorist detention laws, the HRA 1998 really has had aslittle impact as Ewing suggests. More broadly, it could be asked whether domestic and international humanrights law have played a role in restraining the practice and conditions of anti-terrorist detention in the UnitedKingdom post-1998.

It is the aim of this article to inquire into the latter question. Empirical research would prove useful inproviding a more concrete answer. Therefore, in this article, I do no more than make some tenuous observations.By way of general background, in the next section, I outline several historical pieces of executive detention le-gislation (not only anti-terrorist detention) and the responses of domestic and international courts. Followingothers, I suggest that the courts were reluctant to uphold principles of liberty when faced with the very situationsin which liberty is most important. [FN12]

I then outline the three new pieces of legislation since the introduction of the HRA 1998 that have allowedanti-terrorist detention in the United Kingdom. The first, the Terrorism Act 2000 [FN13] (TA 2000), provides fora limited form of detention for purposes of interrogation. The Anti-terrorism Crime and Security Act 2001[FN14] (ATCSA 2001) provides for unlimited executive detention without trial and the Prevention of TerrorismAct 2005 [FN15] (PTA 2005) provides for “control orders,” which could include house arrest. For each of theseregimes, I comment on the extent to which domestic and international human rights law have restrained the le-gislative drafting and the court's interpretation of the legislation (where applicable).

I conclude by reflecting further upon Ewing's challenge and suggest that while the HRA 1998 has not had adramatic impact upon the protection of human rights in the United Kingdom, it has provided an opportunity forthe ECHR to be considered in the domestic courts and has prompted its consideration in the legislature. This is



likely to have a positive impact in the long term. I suggest that in the example given, the judges did grapple withdomestic and international human rights law and were able to produce a human-rights orientated outcome. Nev-ertheless, there is still room for the courts to take a less deferential approach when civil liberties are at stake andthere is a concern that a restrictive precedent has now been set regarding derogations from the ECHR. Regardingthe legislature, it is concluded that the mechanism of parliamentary scrutiny over the executive is not succeedingin restraining or preventing legislation which breaches human rights standards. There is still work to be done increating a true rights culture in the United Kingdom.

II. ANTI-TERRORIST DETENTION LAWS PRIOR TO THE HUMAN RIGHTS ACT 1998

The United Kingdom has a long history of detaining both aliens and citizens in times of perceived crisis. Inthe 1880s and 1890s suspected Irish terrorists were routinely detained without charge. [FN16] At the start ofWorld War I, the infamous Defence of the Realm Acts 1914-1915 [FN17] were passed, under which Regulation14B of the Defence of the Realm Regulations 1914 was authorized. Regulation 14B allowed internment and re-strictions of residence and movement based on the Secretary of State's assessment that somebody was “of hostileorigins or associations.” The regulation was applied very broadly and the only safeguard of the rights of detain-ees was an appeal to an advisory committee which sat in secret without the presence of the detainee. [FN18]Regulation 14B was unsuccessfully challenged in R. v. Halliday, ex parte Zadig [FN19] on the grounds that itwas ultra vires. The requirement of reasonableness of belief having been removed, [FN20] the standard of proofwas held to be a mere “honest suspicion” [FN21] and, even more worryingly, the burden of proof was held to beon the person subject to the order. [FN22] After the end of the war, Regulation 14B lived on in Ireland in theform of the Restoration of Order in Ireland Act, 1920. [FN23] Already we see the judiciary being supportive ofextreme executive action, interpreting draconian laws in the broadest way possible without respect for humanrights.

The next major detention legislation was the Emergency Powers (Defence) Act, 1939, [FN24] which author-ized regulations “as appear to [the Secretary of State] to be necessary or expedient for securing the public safety,the defence of the realm, the maintenance of public order and the efficient prosecution of any war.” [FN25] Reg-ulation 18B of the Defence (General) Regulations 1939 was passed shortly thereafter to enable the detention ofpersons whom the Secretary of State had reasonable cause to believe were “of hostile origin or associations.”[FN26] Similar to Regulation 14B, there were few legal protections for detainees. Regulation 18B was chal-lenged in Liversidge v. Anderson, [FN27] in which the majority held that an entirely subjective test is to be ap-plied to the reasonableness of the Home Secretary's assessment. [FN28] The case is famous for Lord Atkin'sdevastating dissent, in which he stated: “I view with apprehension the attitude of judges who on a mere questionof construction, when face to face with claims involving the liberty of the subject, show themselves more exec-utive minded than the executive.” [FN29] Thus we see the pattern continuing, whereby the judiciary is slow touphold human rights standards in the face of extreme executive action.

From 1973 to 2000, a plethora of emergency statutes primarily concerned with the internal violence inNorthern Ireland were introduced. [FN30] There were two inquiries into how to best deal with the violence inNorthern Ireland during that period. [FN31] The various regimes granted broad discretionary power to arrest anddetain suspects without trial for interrogation for up to five days as a preventive measure. Many of the statuteswere adopted as “temporary” measures but were then extended periodically. [FN32]

Several pieces of executive detention legislation were challenged in the European Court of Human Rights



subsequent to the United Kingdom's ratification of the ECHR on March 8, 1951. Regulations made under theAdministration (Special Powers) Act (Northern Ireland), 1922 were challenged in The Republic of Ireland v. TheUnited Kingdom. [FN33] The Court validated the derogation from the ECHR in place and held that there wastherefore no breach of Article 5 (right to liberty and security). [FN34] Detention under the Prevention of Terror-ism (Temporary Provisions) Act 1984 [FN35] was challenged in the European Court of Human Rights in Broganv. United Kingdom. [FN36] The Court held that a detention of 4 days and 6 hours without judicial supervisionbreached Article 5(3) of the ECHR. The United Kingdom responded by derogating from Article 5(3) on thegrounds that to involve the judiciary in such a political manner would compromise its independence. As we shallsee, this set a dangerous precedent for derogating from human rights standards when a breach has been found bya court. The derogation was tested before the ECHR in Brannigan and McBride v. United Kingdom [FN37] andwas upheld.

The pattern that emerged pre-1998 was therefore one of response to emergency situations with anti-terroristlegislation granting broad discretions to the executive to detain suspects without trial and without the standardprocedural protections usually afforded to criminal suspects. This lack of procedural protections is worrisome.In the criminal law we maintain one standard of justice for all--shop lifters and murderers are entitled to thesame procedural rights. It is curious that with terrorism, the idea that rights attach by virtue of one's humanity isdropped in favour of a system whereby those suspected of the most heinous crimes, who therefore have the mostto lose in the event of a misjustice and who also suffer the highest risk of mistreatment by police are afforded alesser standard of justice. Criminal justice procedures should never be about risk analysis. Rather, the standardsare minimum standards of treatment that we owe to everybody who is accused of committing an offence. Weowe the same standards to terrorist suspects. [FN38] Also worth noting is the habit of derogating from interna-tional human rights obligations when executive detention regimes are seen to conflict with human rights. Thefrequency of derogation raises concerns over the attitude of the United Kingdom to the ECHR. [FN39] For in-stance, by the time of the Ireland judgment, the United Kingdom had derogated from the ECHR for the purposeof executive detention on six occasions. [FN40] These two patterns have both continued since 1998.

III. ANTI-TERRORIST DETENTION LAWS SINCE 1998

A. THE TERRORISM ACT 2000

The TA 2000 was passed as a result of two recent political events: the conclusion of the Good Friday Agree-ment, [FN41] which aimed to end the 30 year long violent conflict in Northern Ireland and the domestic imple-mentation of the ECHR via the HRA 1998. It was preceded by an inquiry into anti-terrorism legislation by LordLloyd [FN42] and a Governmental consultation paper. [FN43] The government considered the human rights im-plications of detaining suspected terrorists without trial and recommended that its current derogation from theECHR be left to expire within five years of the HRA 1998. The derogation was actually withdrawn on February19, 2001. Proposals to expel potential terrorists were rejected on grounds of human rights and unproductivity.

Provision for executive detention is made in s. 41 and schedules 7 and 8 of the TA 2000. Similar to the previ-ous regime, this detention is purely for the purpose of collecting evidence and is thus contrasted with both thewar-time regimes and the ATCSA 2001, which was to follow shortly after. Section 41 gives the police a power todetain persons whom they “reasonably believe” to be terrorists for up to 48 hours without a warrant. Personsmay be detained for a further fourteen days on application to a judicial authority under paragraph 29 of schedule8. [FN44] Paragraph 6 of schedule 7 allows for detention at ports for up to nine hours in order to ascertain if



somebody is a terrorist, whether or not there is any ground for suspecting this. Detained persons under eitherprovision are entitled to inform one named person of their detention (schedule 8, clause 6) and to consult a soli-citor (schedule 8, clause 7), although these rights can be removed in certain circumstances (schedule 8, clause8).

The TA 2000 powers represent a positive development in terms of allowing judicial oversight of the deten-tion process. This is the sort of development one would hope for as it reflects an attempt to take the concept ofhuman rights and the United Kingdom's international obligations seriously. However, the procedural protectionsgranted to detainees are still minimal. Furthermore, such protection was short-lived. After the terrorist events ofSeptember 2001, a more severe detention regime was introduced, described by Adam Tomkins as “surely themost draconian legislation Parliament has passed in peacetime in over a century.” [FN45] It is interesting thatthe moment the potential threat became real, the legislation was seen to be insufficient, despite the fact that itwas passed specifically to deal with the growing threat of international terrorism. [FN46]

B. THE ANTI-TERRORISM, CRIME AND SECURITY ACT 2001

The ATCSA 2001 was one of the United Kingdom's first responses to the acts of terrorism committed in theUnited States on September 11, 2001. The Act was passed on December 14, 2001 and the relevant provisions(ss. 21-23) came into force immediately. [FN47] The detention regime under the ATCSA was linked to the deten-tion powers under the Immigration Act 1971 [FN48] (IA 1971). This means that only non-United Kingdom cit-izens could be subject to the ATCSA 2001, as only they can be detained under immigration powers.

The ATCSA 2001 gave the Secretary of State the power to certify somebody as a “suspected internationalterrorist.” [FN49] The Secretary of State could then make various orders including deportation or removal fromthe United Kingdom under the IA 1971. [FN50] If, however, there was evidence that deportation or removalwould expose a person to torture, inhumane or degrading treatment in contravention of Article 3 of the ECHR,the United Kingdom is prevented from executing the deportation or removal order under the HRA 1998. [FN51]Prior to the ATCSA 2001, persons who could not be deported due to Article 3 could not be detained either, be-cause they did not qualify as “a person against whom action is being taken with a view to deportation.” [FN52]The ATCSA 2001 changed this by authorizing detention even if deportation is not an option. [FN53] Certifica-tions could be appealed against to the Special Immigration Appeals Commission (SIAC) [FN54] and were re-viewed after six months. [FN55] All detainees could voluntarily leave the United Kingdom and could apply forbail under s. 24.

The picture is complicated further by the United Kingdom's obligations under Article 5 of the ECHR. Article5(1) protects the right to liberty and security, and only allows detention in certain circumstances--anti-terroristdetention does not qualify. [FN56] Therefore, before passing the ATCSA 2001, the United Kingdom derogatedfrom Article 5(1) claiming a “public emergency that threatens the life of the nation” within the meaning of Art-icle 15(1) of the ECHR. [FN57] This enabled it to detain people in circumstances that would otherwise consti-tute a breach of the ECHR, for the duration of the public emergency.

The ATCSA 2001 had three internal review mechanisms. First, the Secretary of State had a duty to appoint aperson to review the operation of ss. 21 to 23. [FN58] Lord Carlile was duly appointed and made annual re-views, which included some procedural criticisms but no adverse comments about the regime as a whole.[FN59] Second, s. 122 required the Secretary of State to appoint a committee to conduct a review of the entireAct within two years, which would be presented to Parliament. [FN60] Lord Newton was appointed and issued a



very critical report on December 18, 2003, suggesting that the detention powers in Part IV should be “replacedas a matter of urgency” with powers which do not discriminate between nationals and non-nationals and whichdo not require derogation from the ECHR. [FN61] Third, ss. 21 to 23 were deemed to expire after fifteen monthsunless revived for one year under s. 29(2)(b), which required a resolution of each House of Parliament. [FN62]Accordingly, the sections were revised in time for their expiry on March 15, 2003 [FN63] and March 15, 2004.[FN64] The sections were not revised in March 2005 and have now expired. In any event, the final expiry for ss.21-23 was scheduled to be November 10, 2006. [FN65]

One controversial feature of this regime related to the ability to test evidence against a proposed detainee.This was due partly to a relaxed burden of proof; below both the criminal standard of beyond reasonable doubtand the civil standard of the balance of probabilities. The burden of proof required to certify an individual was amere “reasonable suspicion that a person is a terrorist.” [FN66] A terrorist was defined widely and includedsomebody who “is or has been concerned in the commission, preparation or instigation of acts of internationalterrorism.” [FN67] Further, as opposed to representation in person or by a lawyer, detainees were represented atSIAC hearings by special advocates appointed by the Attorney General. [FN68] Much of the evidence could bekept from the applicant due to security concerns. [FN69] All evidence could be seen by the special advocate, buthe could not thereafter consult with the detainee. Several of the special advocates were critical of their role andstepped down as a result. [FN70]

It is interesting to note that the House of Commons and the House of Lords Joint Committee on HumanRights was critical of the regime at least four times. [FN71] The European Commissioner for Human Rights[FN72] and a variety of United Nations bodies also made adverse comments about the regime. [FN73]

A total of seventeen persons were certified under Part IV of the ATCSA 2001, most of whom were detainedat Belmarsh High Security Prison in London. Before the expiry of the ATCSA 2001, only one was successful in aSIAC appeal and two were granted bail. In addition, one had his certificate revoked by the Secretary of State inSeptember 2004, two made voluntary departures from the United Kingdom and another was released to Broad-moor Hospital in July 2002. [FN74]

In July 2002, nine detainees appealed to SIAC under s. 3, which provides SIAC with exclusive jurisdictionover matters related to the United Kingdom's derogation from the ECHR. [FN75] It was asserted that the orderderogating from the ECHR was invalid under Article 15(1) because:

a) there was no “state of emergency threatening the life of the nation”; and

b) if there was a state of emergency threatening the life of the nation, the measures were not“strictly required by the exigencies of the situation.” [FN76]

The detainees claimed that as the derogation was invalid, the detention regime under Part IV of the ATCSA 2001breached the HRA 1998. [FN77] A declaration of incompatibility with the HRA 1998 was sought to trigger a par-liamentary review of the legislation. [FN78] The detainees also claimed a breach of several other articles, in-cluding freedom from discrimination under Article 14 (which was not covered in the designated derogation or-der).

On July 2, 2004, SIAC issued a “generic judgment” rejecting the contention that the United Kingdom'sderogation from the ECHR was invalid but upholding their claim that it was discriminatory under Article 14.[FN79] The Court of Appeal then upheld the Secretary of State's appeal [FN80] and the House of Lords upheldthe detainee's appeal. [FN81]



The House of Lords rejected the validity of the derogation from Article 5(1), finding by a majority of eightto one that there was an “emergency threatening the life of the nation” but that the measures used were not“strictly required by the exigencies of the situation.” [FN82] The rationale was that the ATCSA 2001 regime wasdisproportionate in so far as the measures (indefinite detention without trial) were not rationally connected to thelegislative objective and were more than was necessary to meet this objective. [FN83] It therefore could not besaid to be “strictly required by the exigencies of the situation.” [FN84] Consequently, the derogation was invalidunder Article 15. Factors leading to this conclusion included that detainees were free to leave the country toplaces as near as France where they could pursue their terrorist operations, that the legislation did not addressthe threat posed by United Kingdom nationals and that the sections permitted detention of persons not connectedwith Al-Qaeda. [FN85] It was also held to be discriminatory on grounds of nationality and immigration status,thus breaching Article 14. [FN86] A declaration of incompatibility of the legislation with both Article 5 and Art-icle 14 of the ECHR was issued.

Lawyers have been critical of the ease with which eight of the nine Law Lords reached the conclusion thatthere clearly was a “state of emergency threatening the life of the nation.” [FN87] As Tomkins points out, thisquestion could have been left open, which would have avoided setting a restrictive precedent for the future.[FN88] There were three reasons given by Lord Bingham for the majority: that it had not been shown that SIACor the Court of Appeal misdirected themselves as to the law, [FN89] that the European jurisprudence allows awide “margin of appreciation” on this question, [FN90] and that the matter required a political judgement andwas therefore not suitable for the courts to assess. [FN91]

Regarding the first of these reasons, it could be suggested that SIAC and the Court of Appeal did misdirectthemselves as to the law in one of two ways. First, they could have misdirected themselves by failing to considerwhether the threat posed was a threat “to the life of the nation” as opposed to a threat to public safety orsomething else. As Lord Hoffman pointed out, a threat to life is a completely different matter than a threat to thelife of the nation: “[t]errorist violence, serious as it is, does not threaten our institutions of government or ourexistence as a civil community.” [FN92] SIAC undertook a lengthy discussion of the threat posed to the UnitedKingdom; however, it did not discuss whether the threat of terrorism was a threat “to the life of the nation.”[FN93] In the Court of Appeal, SIAC's judgment with respect to this matter was accepted. [FN94] Lord Bing-ham seems to have missed this point as at paragraph 24, he states that “[t]he appellants submitted that detailedinformation pointing to a real and imminent danger to public safety in the United Kingdom had not beenshown.” [FN95] However, this is beside the point. Lord Bingham should have commented that the test was athreat “to the life of the nation” as opposed to a threat to public safety.

Additionally, neither court seriously considered the requirements regarding the nature of the threat laid downby the European Court of Human Rights--that it be an actual or imminent threat of a temporary or exceptionalnature. [FN96] The House of Lords could therefore have found that SIAC and the Court of Appeal misdirectedthemselves in law either by failing to consider whether the threat posed was a threat “to the life of the nation,”or alternatively, by holding that the test accepted by the European Court of Human Rights should be followed inthe United Kingdom.

The second reason given by Lord Bingham was that this was a matter with which it was appropriate to applythe doctrine of the margin of appreciation. However, it does not make sense to apply this doctrine to domesticlaw. [FN97] The margin of appreciation doctrine allows the European Court of Human Rights to defer to nation-al institutions, which are better placed to make the requisite assessment. [FN98] In this scenario, the House ofLords would count as a national institution to which the European Court of Human Rights would defer. As Tier-



ney points out, Lord Bingham failed to draw a distinction between the margin of appreciation doctrine, whichapplies at an international level and the discretionary area of judgment doctrine, which applies in the domesticcontext. [FN99]

The clear exercise of judicial deference in Lord Bingham's third reason is unsurprising and is broadly con-sistent with the current approach of United Kingdom judges in other cases involving questions of security.[FN100] The rationale behind this deference is that judges do not possess the knowledge and experience re-quired to make decisions about security situations. It is likely that this reason is the real motivation behind themajority's position on threat “to the life of the nation.”

It is interesting to note the high level of deference to the executive displayed regarding the existence of theemergency but the low level of deference regarding whether the measures taken were required. We now have aprecedent for judges considering what a threat to national security requires. It is highly unusual for United King-dom judges to comment on what action the executive should take in the interest of national security. [FN101] In-deed, even Lord Hoffman left this question open. This contrast could be seen as signifying a state of constitu-tional flux as judges get used to their new responsibilities under the HRA 1998. My view is that United Kingdomjudges should retain the ability to review all (including security) legislation for proportionality, as this maintainsthe rule of law and acts as a much needed check on the legislature.

C. THE PREVENTION OF TERRORISM ACT 2005

The Lords' judgment was issued in December 2004, leaving just under three months before ss. 21 to 23 ofthe ATCSA 2001 would expire. In the circumstances, it became clear that a revival order would not pass theHouse of Commons. Therefore, an alternative regime to the ATCSA 2001 was needed or the terrorist suspectswould have to be released.

The Prevention of Terrorism Bill [FN102] was first presented to the House of Commons on February 22,2005. Despite the urgency (the detainees would have to be released on March 15, 2005), the Bill “ping-ponged”between the houses several times. Amongst the sticking points were the Lords' amendments to raise the burdenof proof from a “reasonable suspicion” to the civil standard of the balance of probabilities, that the “control or-ders” for which the legislation provided be issued by judges instead of the Secretary of State and a proposedsunset clause, which would see the legislation lapse after twelve months. [FN103] The Bill was finally passed onMarch 12, 2005, incorporating several amendments.

The PTA 2005 provides for control orders to be issued by the Secretary of State against individuals to protectthe public from the risk of terrorism. In order to issue a control order, the Secretary of State must have“reasonable grounds for suspecting” that the individual has been involved in “terrorism-related activity”[FN104] and that a control order is “necessary, for purposes connected with protecting members of the publicfrom a risk of terrorism.” [FN105] “Terrorism related activity” covers a broad number of activities including“the commission, preparation or instigation of acts of terrorism” at the one extreme, to “conduct which givessupport or assistance to individuals who are known or believed to be involved in terrorism-related activity” atthe other. [FN106] The definition of terrorism is taken directly from the TA 2000 and is also very wide. [FN107]

The range of control orders is open ended, but includes orders as varied as a restriction on possession of cer-tain specified articles or substances, [FN108] to a requirement to remain within a particular location. [FN109]This latter option has caused the most controversy, as it could effectively amount to “house arrest” and raises is-



sues with regard to the right to liberty and security as protected by Article 5 of the ECHR. Breach of the condi-tions of a control order is a criminal offence and can result in a sentence of imprisonment for up to five years.[FN110]

There are two forms of control orders: derogating and non-derogating. The two types of orders are dealt withseparately in the PTA 2005, with extra protections in place for derogating control orders. Derogating control or-ders are those which restrict liberty to the extent that derogation from the ECHR would be required. However,this is likely to be limited to cases of house arrest.

Non-derogating control orders are issued by the Secretary of State, but are subject to court review withinseven days. [FN111] While the Secretary of State is supposed to seek permission of the court to issue an order,this can be circumvented by a declaration that “the urgency of the case requires the order to be made withoutsuch permission.” [FN112] The court may give permission unless the grounds on which it is sought are“obviously flawed.” [FN113] In considering applications for permission, the individual need not be present incourt, nor notified about the order [FN114] and need not have been given an opportunity to make representa-tions. [FN115] Nevertheless, he or she must be given an opportunity to make representations after the fact.[FN116]

A non-derogating control order can last up to twelve months [FN117] and may be renewed thereafter butmay not be indefinite. [FN118] In addition, it is possible to appeal against renewals or modifications. [FN119]Likewise, an individual may apply to the Secretary of State for the revocation of an order and may appealagainst the decision to the court. [FN120]

By contrast, derogating control orders can only be issued by the court and require Parliament to derogatefrom the ECHR each time. [FN121] Again, the court may issue an order at a preliminary hearing in the absenceof the individual without his having been provided with notice [FN122] or with an opportunity to make repres-entations. [FN123] However, this will be followed by a full hearing at which representations may be made.[FN124] At the preliminary hearing, it may issue a control order if:

• “there is material which ... is capable of being relied on ... as establishing that the individual isor has been involved in terrorism-related activity”;

• there are reasonable grounds for believing that this is necessary “for purposes connected withprotecting members of the public from a risk of terrorism”;

• “the risk arises out of, or is associated with, a public emergency in respect of which there is adesignated derogation” from Article 5 ECHR; and

• the obligations of the control order are set out in a designated derogation order. [FN125]

At the full hearing, the burden of proof is raised to the balance of probabilities. [FN126] A derogating controlorder lasts for six months but can be renewed. [FN127] Interestingly, the obligations imposed by either form ofcontrol order do not necessarily have to be connected with the particular grounds of suspicion that the Secretaryof State holds. [FN128]

Sections 1 through 9 expire after twelve months, unless subject to a renewal order by the Secretary of State,which must be laid before each House of Parliament, unless it is urgent. [FN129] In addition, the Secretary ofState must report to parliament every three months about his exercise of control order powers and must appoint a



person to review the operation of the Act (similar to the role played by Lord Carlile under the ATCSA 2001).[FN130]

The schedule to the PTA 2005 provides for powers to make rules of court and procedure in relation to con-trol order and appeal proceedings. [FN131] In making the rules, the Lord Chancellor must consult with the LordChief Justices of England, Wales, and Northern Ireland. [FN132] The rules must be approved by Parliament andmay relate to matters such as the mode of proof and evidence, proceedings without hearings and legal represent-ations. [FN133] They may also provide for proceedings using confidential material and in the absence of anyrepresentation of the detainee. [FN134] Further provisions relate to the use of “advisers” appointed by the LordChancellor [FN135] or persons to represent the interest of the individual (similar to “special advocates” underthe ATCSA 2001). [FN136] Such rules were created by the Lord Chancellor and laid before Parliament on March14, 2001. [FN137] Interestingly, while intercept evidence remains inadmissible in ordinary criminal proceedings(despite strong arguments that this position should be changed), [FN138] it may be used under the PTA 2005proceedings. [FN139]

It could be argued that the Government took human rights seriously in responding to the Lords' judgment, asit allowed the ATCSA 2001 detention regime to expire without renewal. In one sense, therefore, this is a story ofsuccess. The HRA 1998 is functioning as expected. [FN140] In proposing a new regime of individualized controlorders, which include effective house arrest, effort was made to take account of the Lords' concerns. [FN141]The new regime is no longer discriminatory--it applies to United Kingdom citizens and non-citizens alike. It alsohas potential to tailor the reaction to suit the situation of the suspect such that it can be more proportionate. So,for instance, control orders could cover measures like electronic tagging and reporting to the police.

On the other hand, the new regime is arguably harsher than the old. The PTA 2005 has a much broader ap-plication than the ATCSA 2001 and as with criminal sanctions which have minor consequences, the regime canbe expected to be used more widely than the ATCSA 2001 regime. In another sense, therefore, it can be seen asan attempt to subvert human rights standards whilst retaining the outward impression of compliance.

IV. ANALYSIS AND CONCLUSION

I would like to suggest we see this as a situation of a developing human rights consciousness. It is clear that1998 did not mark a new era in executive detention laws. The pattern established previously has continued--intimes of heightened security concern, new detention laws are established. The HRA 1998 has, however, addedone more consideration into the mix of questions to consider in drafting--will this law withstand judicial scru-tiny? [FN142] The HRA 1998 thus forces the government to treat executive detention laws as an exceptionwhich may serve to entrench the norm of no executive detention. [FN143]

This is reflected in the increased focus of parliamentary debate on human rights. That said, it has not neces-sarily led to more depth of discussion or serious debate in the Commons. For example, all 124 clauses of theATCSA 2001 were discussed in sixteen hours which resulted in no amendments to the Government's proposal.[FN144] If parliamentary debate is unable to effect changes to potential legislation that breaches human rightsstandards, [FN145] its effectiveness must be questioned. One possibility for the complacency of the Commonsmight be that the s. 19 Declaration of Compatibility gives the impression that the Act has already been“proofed” for human rights compliance. Thus it may serve as a “legitimizing cloak” which detracts from thequality of debate. [FN146] More happily, the ATCSA 2001 sparked a heated debate in the House of Lords whichresulted in several major amendments.



Curiously, although the detention regime is likely to also have breached the International Covenant on Civiland Political Rights (ICCPR) (the United Kingdom also derogated from the ICCPR), [FN147] discussion of thiswas completely absent from both the Commons and Lords debate on the PTA 2005. [FN148] This would lendsupport to the view that the enforceability of human rights obligations may be causatively linked to the likeli-hood of them being respected in the legislative process.

It is also interesting that the Government looked carefully at the House of Lords judgment in designing thenew legislation. This supports the argument of those who see human rights law as a form of constitutional dia-logue. It is also apparent that the judges anticipated this and clearly had the political response to their judgmentin mind. [FN149] This dialogue emerges in other settings. For example, members of the United Kingdom judi-ciary have spoken out against the possibility of legislative amendments to allow deportation of people to foreigncountries where they would be at risk of torture, thereby circumventing the judgment in Chahal v. United King-dom. [FN150]

Nevertheless, if one were to be skeptical, concerns could be raised about whether human rights are reallytaken seriously in the sense that there is a pattern of pushing legislation to the limit. There is a general concernthat the legislature may pass legislation with the attitude of “what can we get away with?” rather than “what doprinciples of human rights require in this situation?” This is reflected in the attention on the enforceable ECHRto the detriment of other international obligations. Furthermore, it is possible that the court challenge to theATCSA 2001 and the subsequent legislative process has added legitimacy to the PTA 2005.

In the end, it must be remembered that the court in A v. Secretary of State for the Home Department [FN151]would not have been able to hold as it did but for the HRA 1998. The applicants could have taken a case toStrasbourg, but this would have been much more time-consuming and in the interim, they would have remainedinterned. Thus, while it is unlikely that we will see a modern day Marbury v. Madison [FN152] and a strongerform of judicial review in the United Kingdom, the HRA 1998 does still provide some form of weak constitu-tional charter which protects human rights.

I would therefore like to conclude by “sitting on the fence.” On the one hand, the HRA 1998 has provided anew opportunity for United Kingdom judges to protect human rights in the United Kingdom and contrary towhat Ewing suggests, they have shown some measure of doing so (Ewing's article was written prior to the Houseof Lords judgment in A v. SoS). On the other hand, the judiciary is still learning how to balance its new constitu-tional role and is creating its own limitations. In particular its deference to the executive over the meaning of“threat to the nation” is worrying. [FN153] This state of “constitutional flux” is unsurprising given the relativelyrecent addition of human rights legislation in the United Kingdom.

Focusing on the legislature, it can be concluded that in the case of executive detention laws, human rightsare now a more urgent concern. Having said that, there is still the sense that these are accepted reluctantly. TheHRA 1998 does not have the status as higher law in the United Kingdom. It can be repealed by Parliament andits repeal is occasionally suggested by Members of Parliament. [FN154]

The United Kingdom needs to continue to develop its rights consciousness and to learn to create legislativeregimes that respect human rights. The contributions of the Joint Committee on Human Rights make a good stepin this direction. [FN155] However, there is still room for criticism of the human rights consciousness of Parlia-ment as a whole. Given the restrictions on the courts in such sensitive areas, the supervisory role of Parliamentbecomes even more important. [FN156] This is particularly difficult in terms of relative perceived insecurity



such as found in the present. It is respectfully suggested here that Parliament has not taken its role of supervisingthe executive sufficiently seriously with respect to the question of anti-terrorism detention and human rights. Itis hoped that these conclusions will be proved wrong by the Terrorism Bill 2005. [FN157] The Bill originallycontained provision for the detention of terrorist suspects without trial for up to ninety days. [FN158] This wasreduced to twenty-eight days at Report Stage in the House of Commons. [FN159] Nevertheless, proposals toraise the limit to ninety days were made in the House of Lords. [FN160] At least the depth of the debate cannotbe criticized in this case. One can only hope for a positive outcome.

[FNa1]. LL.B. (Hons.) (Otago), B.A. (Otago), LL.M. (Nottingham), D.Phil, candidate (Oxford),[email protected]. This article is a version of a presentation at the Conference “Reflections on RightsEnforcement: Comparative Perspectives,” September 22-24, 2005, Saskatoon, Saskatchewan. My sincere thanksgo to the editors of the Saskatchewan Law Review for all their help preparing this article for publication.

[FN1]. (U.K.), 1998, c. 42 [HRA 1998].

[FN2]. K.D. Ewing, “The Futility of the Human Rights Act” (2004) P.L. 829.

[FN3]. 4 November 1950, 213 U.N.T.S. 221 at 223, Eur. T.S. 5 [ECHR].

[FN4]. Ewing suggests that this has been the case since Entick v. Carrington (1765), 19 St. Tr. 1930: supra note2 at 852. See also the analysis in K.D. Ewing & C.A. Gearty, The Struggle for Civil Liberties: Political Freedomand the Rule of Law in Britain, 1914-1945 (Oxford: Oxford University Press, 2001) at 29: “there is not a singlecase of significance in the Law Reports of legislation passed between 1914 and 1945 to restrict personal andpolitical liberties being restrained in its scope by the judicial power of interpretation.”

[FN5]. Supra note 1, s. 6.

[FN6]. Ewing, supra note 2 at 840. Such legislation includes the Terrorism Act 2000 (U.K.), 2000, c. 11 [TA2000], the Anti-terrorism, Crime and Security Act 2001 (U.K.), 2001, c. 24 [ATCSA 2001] and the Civil Contin-gencies Act 2004 (U.K.), 2004, c. 36, and the Prevention of Terrorism Act 2005 (U.K.), 2005, c. 2 [PTA 2005].Other initiatives include Identity Cards Bill, 2005-2006 Sess. (at time of writing at Report Stage in the House ofLords), and the Terrorism Bill, 2005-2006 Sess. (at time of writing at Report Stage in the House of Lords).

[FN7]. Ewing, supra note 2 at 843.

[FN8]. Ibid. at 850.

[FN9]. A.W. Brian Simpson, In the Highest Degree Odious: Detention without Trial in Wartime Britain(Oxford: Clarendon Press, 1994).

[FN10]. See however, the Interception of Communications (Admissibility of Evidence) Bill 2005-2006 Sess.,which received its first reading in the House of Lords on 10 October 2005. The bill provides for the use of inter-cept evidence in criminal trials, which might facilitate the prosecution of those planning terrorist action.

[FN11]. Chahal v. United Kingdom, [1997] 23 E.H.R.R. 413, 1 B.H.R.C. 405 [Chahal].

[FN12]. Simpson, supra note 9; Ewing & Gearty, supra note 4.



http://international.westlaw.com/Find/Default.wl?rs=WLIN1.0&vr=2.0&DB=4714&FindType=Y&SerialNum=1996292479


[FN13]. Supra note 6.



[FN16]. For example, under The Protection of Life and Property in certain parts of Ireland Act, 1871 (U.K.), 34Vict., c. 25 (repealed by statute law reform in 1883) and the Protection of Person and Property (Ireland) Act,1881 (U.K.), 44 & 45 Vict., c. 4 (repealed by statute law reform in 1894).

[FN17]. (U.K.), 4 & 5 Geo. V., c. 29 and Defence of the Realm (No. 2) Act, 1914 (U.K.), 4 & 5 Geo. V., c. 63,consolidated in the Defence of the Realms (Consolidation) Act, 1914 (U.K.), 5 Geo. V., c. 8 and later amendedby Defence of the Realm (Amendment) Act, 1915 (U.K.), 5 & 6 Geo. V., c. 34, Defence of the Realm(Amendment) (No. 2) Act, 1915 (U.K.), 5 & 6 Geo. V., c. 37 and Defence of the Realm (Amendment) (No. 3) Act,1915 (U.K.), 5 & 6 Geo. V., c. 42. The Consolidation Act was repealed by statute law reform in 1927.

[FN18]. Simpson, supra note 9 at 1-33.

[FN19]. [1917] A.C. 260, 1917 WL 17997.

[FN20]. R. v. Denison (1916), 32 T.L.R. 528 at 529 [Denison], referring to the original form as part of Regula-tion 24A (Manual of Emergency Legislation v. 1 (London: HMSO, 1918) 153) which later became Regulation14B. The Regulations were consistently reviewed and amended throughout the war.

[FN21]. Denison, ibid.; R. v. Howsin (1917), 33 T.L.R. 527.

[FN22]. Ronnfeldt v. Phillips (1918), 34 T.L.R. 556.

[FN23]. (U.K.), 10 & 11 Geo. V., c. 31 (repealed via statute law reform in 1953).

[FN24]. (U.K.), 3 & 4 Geo. VI., c. 62.

[FN25]. Ibid., s. 1(1).

[FN26]. Regulation 18B was added in 1939 Statutory Rules and Orders no. 978 and superseded by no. 1681.

[FN27]. (1941), [1942] A.C. 206, 3 All E.R. 338.

[FN28]. Ibid. at 220. Other challenges included: Green v. Secretary of State for Home Affairs, [1942] A.C. 284(H.L.), R. v. Secretary of State for Home Affairs, [1941] 1 K.B. 72 (C.A.). See also Simpson, supra note 9 at297-380.

[FN29]. Supra note 27 at 244. See also the reflection in R.F.V. Heuston, “Liversidge v. Anderson in Retrospect”(1970) 86 Law Q. Rev. 33 at 36.

[FN30]. For a good summary, see The Republic of Ireland v. The United Kingdom (1978), [1979-80] 2 E.H.R.R.25 [Ireland]. See the Northern Ireland Act 1972 (U.K.), 1972, c. 10; Northern Ireland (Emergency Provisions)Act 1973 (U.K.), 1973, c. 53; the Prevention of Terrorism Act 1974 (U.K.), 1974, c. 56; the Northern Ireland(Emergency Provisions) (Amendment) Act 1975 (U.K.), 1975, c. 62; the Prevention of Terrorism (Temporary









Provisions) Act 1976 (U.K.), 1976, c. 8; the Prevention of Terrorism (Temporary Provisions) Act 1984 (U.K.),1984, c. 8; and the Prevention of Terrorism (Temporary Provisions) Act 1989 (U.K.), 1989, c. 4.

[FN31]. Lord Diplock, Report of the Commission to Consider Legal Procedures to Deal with Terrorist Activitiesin Northern Ireland, Cmnd. 5185 (London: HMSO, 1972); the Gardner Committee, Report of a Committee toConsider, in the Context of Civil Liberties and Human Rights, Measures to Deal with Terrorism in Northern Ire-land, Cmnd. 5847 (London: HMSO, 1975).

[FN32]. For example, the Northern Ireland (Emergency Provisions) Act 1973 was extended by Orders of 17 July1974, 17 December 1974, and 27 June 1975.

[FN33]. Supra note 30. The regulations in question were regulations 10, 11 and 12, made in 1956, 1956 and1957 respectively: Administration (Special Powers) Act (Northern Ireland), 1922.

[FN34]. Ibid. It did, however, find a breach of Article 3 in that the infamous “five techniques” the UK used toextract information out of suspected terrorists amounted to inhuman or degrading treatment.


[FN36]. [1989] 11 E.H.R.R. 117 [Brogan].

[FN37]. [1994] 17 E.H.R.R. 539 [Brannigan].

[FN38]. Ronald M. Dworkin, “The Threat to Patriotism” (2002) 49(3) N.Y. Rev. of Books 44 at 48.

[FN39]. However, an argument can be made that it is preferable to derogate from a Human Rights obligationrather than “reinterpret” the obligation and dilute the right.

[FN40]. 27 June 1957, 25 September 1969, 20 August 1971, 23 January 1973, 16 August 1973, 19 September1975: Ireland, supra note 30 at para. 79.

[FN41]. Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland andthe Government of Ireland, 10 April 1998.

[FN42]. Inquiry into Legislation Against Terrorism, Cmnd. 3420 (London: HMSO, 1996).

[FN43]. U.K., Home Office, Legislation Against Terrorism, Cmnd. 4178 (London: HMSO, 1998) [LegislationAgainst Terrorism].

[FN44]. As amended by s. 306 of the Criminal Justice Act 2003 (U.K.), 2003, c. 44. Worryingly, there are nowproposals to extend this to twenty-eight days. See Terrorism Bill, supra note 6, ss. 23 and 24.

[FN45]. “Legislating against Terror: the Anti-terrorism, Crime and Security Act 2001” (2002) P.L. 205 at 205.

[FN46]. Legislation Against Terrorism, supra note 43, ch. 2.

[FN47]. ATCSA 2001, supra note 6, s. 127(2)(a).

[FN48]. (U.K.), 1971, c. 77 [IA 1971].





[FN49]. Supra note 6, s. 21(1).

[FN50]. Supra note 48, s. 22. The main difference between deportation and removal is that persons subject to adeportation order cannot re-enter the UK while the order remains in force. Its effects are therefore more longterm than a removal order which puts no limits on future entry into the UK.

[FN51]. Chahal, supra note 11.

[FN52]. Ibid. at para. 4a. See also R. v. Governor of Durham Prison, ex p. Hardial Singh, [1984] 1 W.L.R. 704,[1984] 1 All E.R. 983. The equivalent US case is Zadvydas v. Davis, [2001] 533 U.S. 678, 121 S. Ct. 2491.

[FN53]. Supra note 6, s. 23, referring to paragraph 2(3) of Schedule 3 of the IA 1971, supra note 48.

[FN54]. ATCSA 2001, supra note 6, s. 25.

[FN55]. Ibid., s. 26.

[FN56]. ECHR, supra note 3, art. 5(1).

[FN57]. Human Rights Act 1998 (Designated Derogation) Order 2001.


[FN59]. Lord Carlile, Anti-terrorism, Crime and Security Act 2001, Part IV Section 28 Review 2002 (London:HMSO, 2003); Lord Carlile, Anti-terrorism, Crime and Security Act 2001, Part IV Section 28 Review 2003(London: HMSO, 2004); Lord Carlile, Anti-terrorism, Crime and Security Act 2001, Part IV Section 28 Review2004 (London: HMSO, 2005).


[FN61]. Privy Councilor Review Committee, Anti-terrorism, Crime and Security Act 2001 Review: Report(London: HMSO, 2003) at 7-8.


[FN63]. The Anti-terrorism, Crime and Security Act 2001 (Continuance in force of ss. 21 to 23) Order 2003.

[FN64]. The Anti-terrorism, Crime and Security Act 2001 (Continuance in force of ss. 21 to 23) Order 2004.

[FN65]. ATCSA 2001, supra note 6, s. 29(7).

[FN66]. Ibid., s. 21(1).

[FN67]. Ibid., s. 21(2).

[FN68]. Ibid., s. 27, incorporating s. 6 of the Special Immigration Appeals Commission Act 1997 (U.K.), 2000,c. 68; Special Immigration Appeals Commission (Procedure) Rules 1998, S.I. 1998/1881, Rule 7. See evidencesubmitted by Liberty to the SIAC Review in the Constitutional Affairs Committee, The Operation of the SpecialImmigration Appeals Commission (SIAC): Written Evidence (London: HMSO, 2005).








[FN69]. Rules 24, 36-37 of the Special Immigration Appeals Commission (Procedure) Rules 2003, S.I.2003/1034.

[FN70]. Including Rick Scannell on 17 January 2005 and Ian MacDonald Q.C. on 17 December 2004.

[FN71]. Including Joint Committee on Human Rights Anti-terrorism, Crime and Security Bill (2nd Report ofSession 2001-2002) (London: HMSO, 2001); Joint Committee on Human Rights Continuance in Force of Sec-tions 21 to 23 of the Anti-terrorism, Crime and Security Act 2001 (5th Report of Session 2002-2003) (London:HMSO, 2003); Joint Committee on Human Rights Anti-terrorism, Crime and Security Act 2001: Statutory Re-view and Continuance of Part IV (6th Report of 2003-2004) (London: HMSO, 2004); Joint Committee on Hu-man Rights Review of Counter-terrorism Powers (18th Report of 2003-2004) (London: HMSO, 2004).

[FN72]. European Commissioner for Human Rights, Opinion 1/2002 of the Commissioner for Human Rights,Mr. Alvaro Gil-Robles on certain aspects of the United Kingdom 2001 derogation from Article 5 par. 1 of theEuropean Convention on Human Rights, (Strasbourg: Council of Europe, 2002), online: Council of Europe<www.coe.int/T/E/Commissioner_H.R/Communication_ Unit/Documents/pdf.CommDH(2002)7_E.pdf>.

[FN73]. Including United Nations Committee Against Torture, Conclusions and Recommendations of the Com-mittee against Torture: United Kingdom of Great Britain and Northern Ireland, Crown Dependencies and Over-seas Territories (CAT/C/CR/33/3, 10 December 2004); United Nations Committee on the Elimination of RacialDiscrimination Concluding Observations of the Committee on the Elimination of Racial Discrimination: UnitedKingdom of Great Britain and Northern Ireland (CERD/C/63/CO/11, 10 December 2003).

[FN74]. To Morocco on 22 December 2001 and France on 13 March 2002. A v. Secretary of State for the HomeDepartment [2004] U.K.H.L. 56 at para. 2, [2005] 3 All E.R. 169 [A v. SoS]. Information on all SIAC decisionsregarding the detainees was available online but has since been withdrawn.

[FN75]. Special Immigration Appeals Commission Act 1997, supra note 68, s. 3.

[FN76]. ECHR, supra note 3, art. 15(1).

[FN77]. Supra note 1, s. 6.

[FN78]. Ibid., s. 10.

[FN79]. A v. Secretary of State for the Home Office, [2002] H.R.L.R. 45 at para. 96, [2002] A.C.D. 98 (SIAC,30 July 2002) [A v. SoS (SIAC)].

[FN80]. A v. Secretary of State for the Home Office, [2002] E.W.C.A. Civ. 1502, [2003] 1 All E.R. 811 (C.A.) [A v. SoS (CA)].

[FN81]. A v. SoS, supra note 74.

[FN82]. Lord Hoffman dissented on the first question arguing that there was no public emergency threateningthe life of the nation: ibid. at para. 96. Lord Walker dissented on the second question by arguing that the meas-ures were strictly required by the exigencies of the situation: ibid. at para. 218.

[FN83]. Ibid. at paras. 30-43.




[FN84]. There were suggestions that the European standard of proportionality might develop into a fourth armof judicial review for domestic cases in Council of Civil Service Unions v. Minister for the Civil Service, [1985]A.C. 374, [1984] 3 All E.R. 935 (H.L.) [CCSU], Lord Diplock; R. v. Chief Constable of Sussex ex parte Interna-tional Traders' Ferry Ltd., [1999] 2 A.C. 418; R. (on the application of Alconbury Developments Ltd.) v. Secret-ary of State for the Environment, Transport and the Regions, [2001] 2 All E.R. 929, [2001] 20 E.G.C.S. 228.Contrast R. (Association of British Civilian Internees Far Eastern Region) v. Secretary of State for Defence,[2003] E.W.C.A. Civ 473, [2003] 3 W.L.R. 80.

[FN85]. A v. SoS, supra note 74 at paras. 31, 43.

[FN86]. The applicants argued that the discrimination also suggested that the measures were not strictly requiredby the exigencies of the situation: ibid. at para. 44. However, the Lords focused their discussion of discrimina-tion on art. 14: ibid. at para. 67.

[FN87]. Ibid. at paras. 26-29.

[FN88]. Adam Tomkins, “Readings of A v. Secretary of State for the Home Department (Comment)” (2005)P.L. 259.

[FN89]. A v. SoS, supra note 74 at para. 27.

[FN90]. Ibid. at para. 28.



[FN93]. A v. SoS (SIAC), supra note 79 at paras. 24-35.

[FN94]. A v. SoS (CA), supra note 80 at paras. 32-34.

[FN95]. A v. SoS, supra note 74 at para. 24.

[FN96]. The Greek Case (1969) 12 Y.B. Eur. Conv. 1 at para. 153. This test is also reflected in “The SiracusaPrinciples on the Limitation and Derogation Provisions in the International Covenant on Civil and PoliticalRights” (1985) 7 H.R.Q. 3.

[FN97]. Stephen Tierney, “Determining the State of Exception: What Role for Parliament and the Courts?”(2005) 68 Mod. L. Rev. 668 at 670.

[FN98]. Lawless v. Ireland (No. 3) (1961), 1 E.H.R.R. 15; Ireland, supra note 30. On the relationship betweenthe two doctrines, see David Pannick, “Principles of interpretation of Convention rights under the Human RightsAct and the discretionary area of judgment” (1998) P.L. 545.

[FN99]. Supra note 97 at 670.

[FN100]. CCSU, supra note 84; Secretary of State for the Home Department v. Rehman [2001] U.K.H.L. 47,[2001] 3 W.L.R. 877; Abassi v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of Statefor the Home Department [2002] E.W.C.A. Civ. 1598.









[FN101]. Tomkins, supra note 88 at 259.

[FN102]. Prevention of Terrorism Bill, 2004-2005 Sess..

[FN103]. U.K., H.C., Official Report (2004-2005), vol. 431, part 40, col. 151 (22 February 2005); U.K., H.L.,Official Report (2004-2005), vol. 669, part 41, col. 1102 (22 February 2005); U.K., H.C., Official Report(2004-2005), vol. 431, part 41, col. 333 (23 February 2005); U.K., H.C., Official Report (2004-2005), vol. 431,part 44, col. 644 (28 February 2005); U.K., H.L., Official Report (2004-2005), vol. 670, part 45, col. 114 (1March 2005); U.K., H.L., Official Report (2004-2005), vol. 670, part 47, cols. 355, 398 (3 March 2005); U.K.,H.L., Official Report (2004-2005), vol. 670, part 48, cols. 482, 568 (7 March 2005); U.K., H.L., Official Report(2004-2005), vol. 670, part 49, cols. 627, 724 (8 March 2005); U.K., H.C., Official Report (2004-2005), vol.431, part 51, col. 1573 (9 March 2005).

[FN104]. PTA 2005, supra note 6, s. 2(1)(a).

[FN105]. Ibid., s. 2(1)(b).

[FN106]. Ibid., s. 1(9).

[FN107]. Ibid., s. 15(1).

[FN108]. Ibid., s. 1(4)(a).

[FN109]. Ibid., s. 1(5).

[FN110]. Ibid., s. 9(4)(a).

[FN111]. Ibid., ss. 1(2)(a), 3(4).

[FN112]. Ibid., s. 3(1)(b).

[FN113]. Ibid., s. 3(2)(b).

[FN114]. Ibid., s. 3(5)(a).

[FN115]. Ibid., s. 3(5)(b).

[FN116]. Ibid., s. 3(7).

[FN117]. Ibid., s. 2(4).

[FN118]. Ibid., s. 2(5).

[FN119]. Ibid., s. 10(1).

[FN120]. Ibid., s. 10.

[FN121]. Ibid., s. 1(2)(b).

[FN122]. Ibid., s. 4(2)(b).



[FN123]. Ibid., s. 4(2)(c).

[FN124]. Either by legal representative or “special advocate.” See the Civil Procedure (Amendment No. 2) Rules2005 (No. 656) which insert Part 76 into the Civil Procedure Rules 1998 (No. 3132).

[FN125]. PTA 2005, supra note 6, s. 4(3).

[FN126]. Ibid., s. 4(7)(a).

[FN127]. Ibid., s. 4(8)(c).

[FN128]. Ibid., s. 2(9), which states that “It shall be immaterial, for the purposes of determining what obliga-tions may be imposed by a control order ... whether the involvement ... to be prevented or restricted by the oblig-ation is connected with matters to which the ... grounds for suspicion relate.” Section 4(13) uses similar wordingfor derogating control orders: ibid.

[FN129]. Ibid., s. 13.

[FN130]. Ibid., s. 14.

[FN131]. Supra note 6, para. 3, sch. 1.

[FN132]. Ibid., para. 3.

[FN133]. Ibid., para. 4(1).

[FN134]. Ibid., para. 4(2)




[FN138]. The Bar Council, Press Release, “Intercept Evidence--No Legal or Operational Problem with Using itin Court” (18 February 2005), online: < http://www.barcouncil.org.uk> select: “News, Views & Events,” select:“Press Releases,” search by title: “Intercept Evidence.”

[FN139]. Supra note 6, para. 9, sch. 1.

[FN140]. Lord Lester saw the case as a vindication of the success of the human rights regime. See U.K., H.L.Official Report, vol. 668, col. 1281 (26 January 2005).

[FN141]. U.K., H.C., Official Report, vol. 431, col. 345-346 (23 February 2005).

[FN142]. There are genuine concerns that the s. 19 review of legislation for consistency with the ECHR may actas a legitimizing cloak and “legalise” what should be a political debate. See Helen Fenwick, “The Anti-Terrorism, Crime and Security Act 2001: A Proportionate Response to 11 September?” (2002) 65 Mod. L. Rev.724 at 728.



[FN143]. See Tom R. Hickman, “Between Human Rights and the Rule of Law: Indefinite Detention and theDerogation Model of Constitutionalism” (2005) 68 Mod. L. Rev. 655, in which it is argued that a “derogationmodel” is preferable to a “limitation model” as derogations acknowledge human rights standards do not applybut respect the rule of law and maintain the human rights standard.

[FN144]. Fenwick, supra note 142 at 729.

[FN145]. This ought to have been clear to members of the House of Commons and the House of Lords frombriefings presented by Liberty and Amnesty International at the time of the debate.

[FN146]. Hickman, supra note 143 at 661.

[FN147]. United Kingdom Derogation under the ICCPR of 18 December 2001. This order expired on 14 March2005.

[FN148]. Although Lord Ahmed did refer to “International and European” human rights obligations: U.K., H.L.,Official Report, vol. 670, col. 198 (1 March 2005) (Lord Ahmed).

[FN149]. See A v. SoS, supra note 74 at para. 137, Lord Hoffman, who suggests the circumstances in which theGovernment might be able to differentiate between nationals and non-nationals.

[FN150]. Supra note 11. Clare Dyer, “Judges Ready to Defy Ministers over Terror Deportations” The [London]Guardian (12 September 2005).


[FN152]. (1803), 5 U.S. 137, 2 L. Ed. 60.

[FN153]. The “doctrine of deference” is growing through cases such as R. v. Secretary of State for the Environ-ment ex parte Holding and Barnes plc, [2001] U.K.H.L. 23, 2 All E.R. 929; R. v. Lichniak, [2002] U.K.H.L. 47,1 A.C. 903; ProLife Alliance v. BBC, [2003] U.K.H.L. 23, 2 W.L.R. 403; R. v. Lambert, [2001] U.K.H.L. 37, 3All E.R. 577.

[FN154]. For example, U.K., H.C., Official Report, vol. 391, col. 604 (28 October 2002) (Sir Teddy Taylor);U.K., H.C., Official Report, col. 1422 (6 April 2005) (Andrew Robathan); U.K., H.C., Official Report, vol. 439,col. 356 (9 November 2005) (David Davis); and U.K., H.C., Official Report, vol. 438, col. 932 (2 November2005) (Mr. Cash).

[FN155]. Fenwick, supra note 142.

[FN156]. Tierney, supra note 97 at 670.

[FN157]. Supra note 6. See clauses 23 and 24 in particular.

[FN158]. The Conservative Party originally supported the Bill but threatened to withdraw support at a later stageif this provision was not amended. See U.K., H.C., Official Report, vol. 438, col. 350 (26 October 2005) (DavidDavis).

[FN159]. U.K., H.C., Official Report, vol. 439, part 62, col. 385 (9 November 2005).




[FN160]. U.K., H.L., Official Report, vol. 676, part 78, col. 1160 (13 December 2005) (Baroness Ramsay ofCartvale).69 Sask. L. Rev. 79

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