Under Anti-terrorism, Crime and Security Act 2001 (c 24), s. 23 the govt detained non-nationals whom it suspected of terrorism whom it wished to deport but could not out of fears for their safety/other practical problems etc. The govt also announced that it would be derogating from the right to personal liberty, as set out under art. 5 of ECHR. HL said that the legislation was ECHR incompatible and therefore a s.4 declaration would be made.
Lord Bingham (WITH MAJORITY) said that the threat was a political question and a hard one on which reasonable minds differ, so that “great weight” should be given to the judgement of the Home Secretary and it would be wrong for the court to deny a situation threatening the life of the nation existed. He accepted the arguments that terrorism was not just threatened by foreign nationals and that there were non-detention based ways of stopping terrorism as these are used on British suspects. Building on this he came o the highly political decision that the act was not a rational way of fighting terrorism since it only related to foreigners and therefore the discrimination made no sense and was therefore disproportionate to security needs. He also accepted that the courts are entitled to review derogation orders on proportionality grounds. This is consistent with other areas of judicial review. Given what is said above, the derogation order is disproportionate given how fundamental the right to liberty is and how discrimination is contrary to UK law. Baroness Hale adds that although it might sometimes be acceptable to treat aliens differently, in this case it is not and is not proportionate to how much it would help fight terrorism, which in the majority’s view is not much. How can they make such a political call? Simply because the removal of most suspected terrorists will not solve all terrorism problems doesn’t mean it wont help greatly. They should be intellectually honest and say that his is really about rights Vs security and that rights win.
Lord Walker (dissenting): The threat is massive and the court would be right to err on side of safety, as was accepted in Ireland v UK. It’s not a discrimination based on race but on right to be in UK (to extend this to UK nationals would in fact be far more oppressive). He also says that if we accept that govt will know better than the court how great the threat is (e.g. secret intelligence sources etc) then it is the govt too who will know whether the derogation order and the acts made on the basis of this derogation are justified.
Lord Hoffman (agreeing with majority conclusion, but on different basis): Physical terrorist violence is not threatening the life of the nation. “The real threat to the 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. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.” I.e. he says that terrorism is not really threatening our institutions and way of life as defined by rule of law, right to liberty etc. Therefore a derogation from these and an act against these is unconstitutional. He rightly does not try to avoid making a call as to the size of the threat. If there are clear criteria, e.g. “threat to the nation” then there is no reason why the courts cannot determine such questions. It makes far less sense to say that “is there a threat” is political, but “is the response proportionate” is not political.