By Tobias Thienel
The Grand Chamber of the European Court of Human Rights yesterday decided the case of A and Others v United Kingdom. The applicants, all foreigners resident in Britain, had been detained under anti-terrorism legislation, not after having been found guilty of any crime, but because the authorities suspected them of being terrorists, and could not expel them to their home countries.
The case has already made big headlines, and drawn the attention of many international human rights lawyers, in the domestic courts. As the last court of appeal, the House of Lords (in A and Others v Secretary of State for the Home Department (No 1)  UKHL 56,  2 AC 68) had decided in favour of the applicants. It held that the derogation from Article 5 ECHR entered by the UK under the Convention’s Article 15 had been unlawful. It therefore declared that the legislation authorising the applicants’ detention was unlawful. The domestic courts could not, however, strike down this legislation.
Nor were the applicants immediately released. That being so, the applicants had to take their case to Strasbourg (see para 158 of the Grand Chamber’s judgment). Curiously, the Government there attacked the view taken by its own highest court. In other words, it maintained again that its measures had always been lawful (even though that legislation is no longer in force).
The European Court therefore went through the whole case again.
HT: ECHR Blog.
It may seem a little odd that the Court reached the matter at all, given that the applicants had already won their case at home. It might seem, therefore, that the applicants were no longer victims of any violation of their human rights, the United Kingdom having conceded that it had done wrong (cf. Dalban v Romania, para 44). But it hadn’t: the applicants were not immediately released after the House of Lords had spoken, so the applicants continued to be victims. Moreover, the Government had not even acknowledged until yesterday that there had been any violation.
As to the substance of the case, the Court first held that Article , the prohibition on cruel, inhuman and degrading treatment, had not been violated. The possibility of review of their detention meant that the applicants did not have to suffer under perpetual insecurity as to whether they would ever be released (paras 126-136).
But Article 5 of the Convention was much more central to the case. Here, the Court held, first of all, that the applicants’ detention was not justified under Article 5(1)(f) anyway, irrespective of any derogation. The applicants were not being detained because they were due to be expelled to their home countries. Quite the opposite, in fact: they were in detention because they could not be sent to their own countries, and because they were thought to present a danger to national security if left at large.
There being no relevant exception from Article 5 for such grounds of detention (there obviously couldn’t be…), the case turned on the validity or otherwise of the derogation entered by the UK under Article 15. There had to be a ‘public emergency threatening the life of the nation’, and the measures taken had to be ‘strictly required by the exigencies of the situation.’
On the first requirement, the Court has traditionally been content to leave States a very considerable margin of appreciation (cf. Ireland v United Kingdom, para 207). However, when A and Others was decided in the House, Lord Hoffmann (alone among the 9 Law Lords) took a tougher line: he thought that ‘the real threat to te life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these’ (para 97 of his speech). He thought, therefore, that the nation was not the aggregate of people’s physical lives, but the integrity of the social fabric, which had always included personal freedoms making detention without charge anathema to the British nation. If a threat to the ‘life of the nation’ was to exist at all, it had to be one to ‘our institutions of government or our existence as a civil community.’ The European Court addressed this idea, but ultimately settled for a more conventional approach: earlier cases had been content with much lesser dangers than those envisaged by Lord Hoffmann (see Ireland v United Kingdom, para 205; Brannigan and McBride v United Kingdom, paras 44-47; Aksoy v Turkey, para 70), and the Government’s margin of appreciation in the end won the day (paras 179-181).
On the second point, however, the Government lost, just as it had in the House of Lords. The regime of detention of suspected terrorists applied only to non-nationals of the United Kingdom, not to British people who might conceivably be just as dangerous. This was discriminatory, and therefore not ‘strictly required by the exigencies of the situation.’ It might be noted that this argument could have been expressed differently: the Court could have held either that the application of Article 5 read with Article 14 of the Convention was not caught by a derogation from Article 5 alone, or that Article 14 ECHR constituted one of the State’s ‘other obligations under international law’, aside from the Article derogated from (on that clause of Article 15 see Evelyne Schmid’s article in the new GoJIL). It didn’t, which is just as well. The derogation was invalid, and the applicants Article 5 rights had been violated.
The Court also found violations on the grounds that the applicants had not been given a fair opportunity of challenging the – largely classified – information used against them in court (Article 5(4) ECHR), and that there had not been any enforceable right to compensation (Article 5(5) ECHR). Antoine Buyse at the ECHR Blog also notes the Grand Chamber’s interesting reasons for awarding a fairly low sum in just satisfaction (paras 252-253).
The case is generally quite interesting, in that it is one of the few times that the Court has had to deal with derogations under Article 15, and one of the even fewer times that the Court has seen fit to interfere with the decisions of a Government in crisis. Of course, this was a fairly obvious case, and the national courts had paved the way, but this may be a sign of somewhat closer attention to Article 15 arguments in the future. We shall see.