Al-Jedda, R (on the application of) v Secretary of State for Defence

This is the judgment of the court, to which both members of the court have contributed. The claimant is an Iraqi who made a successful claim to asylum in the United Kingdom in the 1990s and now holds dual British and Iraqi nationality. He was detained in October 2004 on a visit to Iraq. In these proceedings he challenges the lawfulness of his continued detention by British forces in Iraq and the refusal by the Secretary of State to return him to the United Kingdom. The primary contention advanced on the claimant’s behalf is that his detention is in breach of his rights under the Human Right Act 1998 (“the 1998 Act”), specifically the rights conferred on him by Article 5 of Schedule 1 to the Act. The essence of the case for the defendant Secretary of State is that the claimant’s detention is authorised by United Nations Security Council Resolution 1546 of 8 June 2004 (“UNSCR 1546”) and that the effect of the resolution is to displace the claimant’s rights under Article 5.

The claimant was born in Iraq on 1 May 1957 and is 48 years old. As an adult he spent time in the United Arab Emirates (“the UAE”) and then in Pakistan, before moving to the United Kingdom with his first wife in 1992. He made a claim for asylum and was granted indefinite leave to remain. He was subsequently granted British nationality. All four of his children by his first wife are British citizens.

The claimant says that in 2000 he went to visit relatives in Syria, where he was detained without explanation for 11 months and then released.

After his release, he and his first wife were divorced. He then married a second wife, in Jordan in 2001. He also took another wife, a Jordanian national who grew up in Baghdad and still lives there. He has a son by each of his new wives.

Prior to September 2004 the claimant was living in London, drawing incapacity benefit and income support. He says that he decided to travel to Iraq in September 2004 in order to try to obtain British visas for his wives and to introduce his four British children to their Iraqi relatives. His intention was to remain in Iraq for one month before returning to the United Kingdom. He sent approximately £10,800 to Iraq to support himself and his children while there. He says that he earned that money through a honey selling business. The legitimacy of his claim to have been selling honey, and the legal consequences of claiming state benefits while in receipt of substantial income from another source, are not matters with which the court need concern itself in these proceedings.

The claimant’s account of his journey to Iraq is as follows. He flew first with his children to the UAE, where he purchased a car from a friend in Dubai. He took the car to a garage for some repairs. While in Dubai waiting for it to be repaired, he was stopped by UAE intelligence officers who detained and interrogated him for 12 hours before releasing him. He decided to delay no further although the repairs to the car were not complete. He sailed with his children to Basra, asking his friend to send the car on when it was ready. It appears that the car was sent on to him in Basra. In any event he drove with his children from Basra to Baghdad, arriving on about 28 September. He stayed there in his parents’ house.

On 10 October, while the claimant was visiting his sister, US troops accompanied by Iraqi national guards surrounded and entered his parents’ house, searching for him. They then moved on to his sister’s house, where they found him and arrested him. He was taken by helicopter to Baghdad airport and was taken on from there in a British military plane to Basra. In Basra he was taken to the Shaibah Divisional Temporary Detention Facility, a detention centre operated by British forces, where he remains to this day.

Although the claimant has made some complaints about his initial treatment by US troops and about aspects of the conditions of his detention and interrogation, they are not in issue in the present proceedings. It is the lawfulness of the detention itself that is in issue.

The reason for the claimant’s arrest and detention is that he is suspected of membership of a terrorist group involved in weapons smuggling and explosive attacks in Iraq. There are said to be reasonable grounds for believing that he has been personally responsible for: (i) recruiting terrorists outside Iraq with a view to the commission of atrocities in Iraq; (ii) facilitating the travel into Iraq of an identified terrorist explosives expert; (iii) conspiring with that explosives expert to conduct improvised explosive device (“IED”) attacks against coalition forces in the areas around Fallujah and Baghdad; and (iv) conspiring with that explosives expert and members of an Islamist terrorist cell in the Gulf to smuggle high tech IED detonation equipment into Iraq, for use in attacks against coalition forces. Accordingly he is detained on the basis that his internment is necessary for imperative reasons of security in Iraq.

The claimant denies any such involvement in terrorist activities, but does not seek in these proceedings to challenge the factual basis for his detention. It has therefore not been necessary for us to consider a substantial body of material filed by the Secretary of State in respect of that issue. The claim proceeds on the assumption that there is a sound factual basis for detention.

Although detained for imperative reasons of security, the claimant has not been charged with any offence; and the Secretary of State acknowledges that, as matters stand, there is insufficient material available which could be used in court to support criminal charges against him. The claimant is therefore detained simply on a preventive basis.

His detention has been subject to periodic reviews, in accordance with procedures considered later in this judgment. The assessment at each of those reviews has been that the detention continues to be necessary.

The claimant seeks not just to secure his release from detention, but to secure his return to the United Kingdom. He says that he wishes to return here and will undertake to co-operate with a voluntary return, notwithstanding that he recognises that if he does return he may be liable to prosecution under the Terrorism Act 2000 or to stringent measures of control under the Prevention of Terrorism Act 2005.

The claimant’s case is put on two bases: (1) that his detention is contrary to the rights conferred on him by Article 5 of Schedule 1 to the 1998 Act, and (2) that the defendant is acting unlawfully in refusing to return him from Iraq to the United Kingdom.

The dimensions of the case under Article 5 are these:

That last point, concerning return to the United Kingdom, links with the second and separate basis on which the claimant’s case is put, namely that the defendant is acting unlawfully in refusing to return him from Iraq to the United Kingdom. The argument is essentially that the defendant has a power to return the claimant to the United Kingdom and has acted unreasonably in refusing to exercise the power. The defendant denies that he has acted unreasonably and contends further that, under Iraqi national law, it would not be open to him to return the claimant.

Because of the way in which the claimant’s case is put, distinguishing between rights under the 1998 Act and rights under the ECHR, the jurisdictional focus must be on the 1998 Act. In practice, however, the effect of the decided cases has been to bring about a close alignment between the two on the question of jurisdiction.

A very detailed and highly pertinent analysis of jurisdiction under the ECHR and the 1998 Act was undertaken by the Divisional Court in R (Al-Skeini and others) v. Secretary of State for Defence [2005] 2 WLR 1401. The claimants were all relatives of Iraqi civilians who had been killed by, or in the course of action taken by, British soldiers in the period following completion of major combat operations in Iraq and prior to the assumption of authority by the Iraqi Interim Government. In the case of the first to fifth claimants, the various deceased had been shot in separate armed incidents involving British troops. In the case of the sixth claimant, the deceased had been arrested by British forces and taken into custody at a British military base, where he had died at some point during the next two days, allegedly as a result of torture by his guards. The claimants sought judicial review of the Secretary of State’s failure to conduct independent inquiries into the deaths. They relied for that purpose on the 1998 Act, contending that there had been a breach of the Secretary of State’s procedural obligations under Articles 2 and 3. The principal issue before the court was whether the ECHR and the 1998 Act could apply at all to what had occurred in Iraq.

At paragraphs 244-280 of the judgment, the court held that jurisdiction under Article 1 ECHR is essentially territorial, though there are exceptions to that principle. One such exception relates to diplomatic or consular premises and like situations. Applying the relevant principles to the facts of the case, the court held at paragraphs 281-285 that the cases of the first to fifth claimants must fail because Iraq was not within the regional sphere of the ECHR and the complaints did not fall within any of the exceptions to the principle of territoriality. But in relation to the sixth claimant the court held that the position was different, in that he had died while in custody in a British military prison:

“287.

… It seems to us that it is not at all straining the examples of extraterritorial jurisdiction discussed in the jurisprudence considered above to hold that a British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities, and containing arrested suspects, falls within even a narrowly limited exception exemplified by embassies, consulates, vessels and aircraft, and in Hess v. United Kingdom 2 DR 72, a prison ….”

The court then proceeded to examine, at paragraphs 289-307, the issue of jurisdiction under the 1998 Act. The contention advanced by Mr Sales, who appeared for the defendant in that case as he did before us, was that the 1998 Act did not incorporate Article 1 ECHR or anything of its language, and that on the true interpretation of the Act the normal presumption that it applied only territorially prevailed. The court rejected the contention, at least in relation to the sixth claimant, concluding:

“306.

In sum, therefore, the presumption of territoriality survives in essence, for it is consistent with the scope of the Convention itself and with its underpinnings in international law. But that does not mean that, set against the background of the Convention and its jurisprudence, the presumption may not allow of the narrow exception which we have framed and applied in the case of the sixth claimant.”

At paragraphs 308-317 the court considered the implications of the judgment that had recently been handed down by the Court of Appeal in R (B) v. Secretary of State for Foreign and Commonwealth Affairs [2005] 2 WLR 618. That case concerned asylum-seekers in Australia who escaped from detention, presented themselves to the British Consulate in Melbourne and requested asylum, but were told that they could not remain in the consulate and that the consular officials would not intervene on their behalf with the Australian authorities. Their application for judicial review of the decision of the consular officials not to grant them asylum was based on the ECHR and the 1998 Act.

The Court of Appeal in B referred to the essentially territorial nature of jurisdiction under Article 1 ECHR and the scope of the exception relating to diplomatic and consular activities. The court was content to assume, without reaching a positive conclusion on the point, that while in the consulate the applicants were sufficiently within the authority of the consular staff to be subject to the jurisdiction of the United Kingdom for the purposes of Article 1. It went on to hold that the 1998 Act was equally capable of applying to the actions of the diplomatic and consular officials in Melbourne:

“78.

… It seems to us that we are under a duty, if possible, to interpret the Human Rights Act 1998 in a way that is compatible with the Convention rights, as those rights have been identified by the Strasbourg court. This duty precludes the application of any presumption that the Human Rights Act 1998 applies within the territorial jurisdiction of the United Kingdom, rather than the somewhat wider jurisdiction of the United Kingdom that the Strasbourg court has held to govern the duties of the United Kingdom under the Convention.

79.

For these reasons we have reached the conclusion that the Human Rights Act 1998 requires public authorities of the United Kingdom to secure those Convention rights defined in section 1 of the Act within the jurisdiction of the United Kingdom as that jurisdiction has been identified by the Strasbourg court ….”

The Divisional Court in Al-Skeini described that as “essentially the same conclusion” as had been expressed in paragraph 306 of the Al-Skeini judgment.

Mr Giffin QC, for the claimant, submits that the present case is on all fours with that of the sixth claimant in Al-Skeini and that this court should follow the conclusion reached in Al-Skeini as regards the jurisdictional scope of the 1998 Act.

Mr Sales, for the defendant, accepts that in the light of Al-Skeini and B it is not appropriate for him to canvass the jurisdictional issue before us. He also accepts, as we understand it, the correctness of the finding in Al-Skeini that a person detained in a British military prison in Iraq falls within the jurisdiction of the United Kingdom under Article 1 ECHR. He does not accept, however, that the court in Al-Skeini was correct to find that the jurisdictional scope of the 1998 Act extends to such a situation, or that the court in B was correct to align the jurisdictional scope of the 1998 Act with jurisdiction under Article 1 ECHR. The defendant’s position is still that the 1998 Act has a more limited territorial scope, in accordance with the normal presumptions for a domestic statute. Such matters will be canvassed before the Court of Appeal in the autumn, when the appeal in Al-Skeini is due to be heard. For the purposes of the present case Mr Sales simply reserves his position on them.

Article 5 of Schedule 1 to the 1998 Act, which is of course in identical terms to Article 5 ECHR, provides:

“1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)

the lawful detention of a person after conviction by a competent court;

(b)

the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)

the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)

the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)

the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)

the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

….

4.

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

Mr Giffin submits first that the claimant’s detention does not fall within any of the permitted cases set out in Article 5(1). That is clearly right and the defendant does not seek to dispute the point. It follows that a breach of Article 5(1) is established, subject to the defendant’s argument that Article 5 is displaced altogether by the effect of UNSCR 1546.

The claimant also alleges a breach of Article 5(4), on the basis that he does not have a right of access to a court to determine the lawfulness of his detention. He does not have access to a court in Iraq: the review process to which his detention is subject, and which is considered later in this judgment, does not constitute compliance with Article 5(4). Although he can bring proceedings for judicial review in the English court, it is submitted that such proceedings would not be sufficient to satisfy Article 5(4) in the circumstances of the case, in particular because the court would not be able to enquire sufficiently into the reasons for the detention; the claimant or his representative would not see all the relevant material, and even the use of a special advocate might not enable the material to be tested adequately; an application for judicial review would place the burden of proving the illegality of the detention on the claimant; and the efficacy of judicial review proceedings in England would be significantly limited by the fact that the claimant is detained in Iraq and could not readily give satisfactory information and instructions to lawyers representing him in such proceedings.

Those submissions are directed towards the question whether there is access to a court to determine the legitimacy of the factual foundation for the claimant’s detention. There is no suggestion that judicial review is an inappropriate or inadequate procedure for determining the general issues of breach of Article 5(1) that are considered in this judgment. As regards the application of Article 5(4) to a challenge concerning the factual foundation for the claimant’s detention, Mr Giffin is realistic enough to acknowledge that his case faces a number of problems. Not least among them is that the claimant has not sought to bring a challenge of that kind, and the adequacy of judicial review proceedings for determining such a challenge has not therefore been put to the test. Further, it is not contended that the court lacks the power to appoint a special advocate if necessary and to tailor its procedures accordingly (cf. the rival contentions in Roberts v. Parole Board [2005] UKHL 45, resolved by the majority of the House of Lords in favour of the Parole Board, as to whether the Board had power to adopt a special advocate procedure at all). Indeed, we are told that the defendant proposed the use of such a procedure if the claimant wished to challenge the factual basis for his detention, but that the proposal was declined. Whether such a procedure can be operated in practice in a way that provides the claimant with a fair hearing and achieves compliance with Article 5(4) can in our view be assessed only in retrospect by reference to the specific facts of an actual case. It cannot be said in advance that a breach of Article 5(4) is inevitable. The same applies in relation to the other procedural concerns raised by the claimant.

That view is supported by the speeches in Roberts. Lord Bingham, although in the minority on the question whether the Parole Board had the power to appoint a special advocate, said this at paragraph 19 in relation to the issue of principle under Article 5(4):

“… But I would decline the appellant’s invitation to rule, at this stage, that the adoption of the proposed procedure is necessarily incompatible with article 5(4). The practice of the European Court is to consider the proceedings in question as a whole, including the decisions of the appellate courts: Edwards v. United Kingdom, above, para 34. Thus its judgment is almost necessarily made in retrospect, when there is evidence of what actually happened. This reflects the acute sensitivity of the Court to the facts of a given case. Save where an issue of compatibility turns on a pure question of statutory construction, the House should in my opinion be similarly reluctant to rule without knowing what has actually happened. This seems to me important because there are some outcomes which would not in my opinion offend article 5(4) despite the employment of a specially appointed advocate ….”

Lord Woolf CJ picked up those observations, stating at paragraph 77:

“… So far as article 5(4) is concerned the need to examine the facts as a whole, including any appellate process, before coming to a decision is critical as Lord Bingham points out in his speech (at para 19). The same is true in domestic law. … The position has to be looked at as a whole with hindsight and taking into account the task of the Board ….”

Lord Rodger stated at paragraph 112 that, substantially for the reasons given by Lord Bingham, in his view the House could not decide in advance whether the full hearing involving a specially appointed advocate met the requirements of Article 5(4). Lord Carswell expressed general agreement with Lord Woolf on the relevant issues (see paragraph 129; see also paragraph 144).

Applying that approach to the circumstances of this case, in our judgment the claimant cannot succeed in the present claim under Article 5(4) even if Article 5 does apply to his detention in Iraq.

On the other hand, as we have already said, if Article 5 does so apply, the detention is in breach of Article 5(1); and in that event the court is able to grant a remedy directed towards securing his release. That makes it necessary for us to turn to the central issue in the case, namely whether Article 5 does apply to the claimant’s detention or is displaced by the effect of UNSCR 1546.

The submission, to which Mr Giffin QC devoted the fullest force of his advocacy, was that, whatever its effect on the European Convention on Human Rights, UNSCR 1546 cannot affect the rights set out in the Human Rights Act 1998. An international treaty, let alone a resolution of the Security Council, not part of English law, cannot displace rights conferred by the English statute. It is that statute the court must construe and apply. Arguments as to the effect of the resolution on the Convention are simply irrelevant.

It is not surprising that this submission, which assumes that the court has rejected all of the claimant’s other contentions as to the interpretation and application of the relevant international treaties and instruments, was at the forefront of his argument. The notion that so fundamental a right as that which is enshrined and protected in Article 5, namely the right to liberty, can, in an area within the jurisdictional scope of the 1998 Act, be removed, is startling; not least because it has been achieved without any express warning in the resolution itself and without any announcement by the Executive, still less the opportunity for scrutiny by Parliament.

But so dramatic an impact does not remove the need for close interpretation of the 1998 Act, since it is the proper construction of that statute which provides the key. The Secretary of State accepts that he must demonstrate that, on a proper construction of the statute, the right under Article 5 has been displaced in relation to Shaibah Divisional Temporary Detention Facility or to any other detention centre operated by British Forces in Basra. The Secretary of State’s task must be regarded as heavy. In the process of construction, we must be fully conscious of how fundamental the right to liberty has always been and remains. The importance of the right to freedom from arbitrary arrest, recognised in any general instrument of human rights, requires no authority but found recent expression in R (A) v. Secretary of State for the Home Department [2005] 2 WLR 87(e.g. at paragraph 36). The right should not be discarded save for the most compelling and clear reasons.

The starting point must be recognition that the right to liberty in Article 5 as set out in Schedule 1 to the 1998 Act is a domestic right, conferred by the United Kingdom’s statute. It is a right which derives from the Convention but it is created by the Act. Its scope, and any limitations to its effect, depend upon a proper construction of the Act. As Lord Nicholls said in re McKerr [2004] 1 WLR 807 at paragraph 25:

“[The rights arising under the Convention] are not as such part of this country’s law because the Convention does not form part of this country’s law. That is still the position. These rights, arising under the Convention are to be contrasted with rights created by the 1998 Act. The latter … are part of this country’s law. The extent of these rights, created as they were by the 1998 Act, depends upon the proper interpretation of that Act.”

In a similar vein, Lord Hoffman emphasised (at paragraphs 63 and 66) that the rights under the 1998 Act were domestic rights created by the Act. That Act did not “transmute international law obligations into domestic ones”.

The indisputable and undisputed proposition that the right protected by Article 5, set out in the Act, is a domestic right, derives, in part, from the uncontroversial principle that international treaties do not form part of domestic law. As Lord Hoffman said in R v. Lyons [2003] 1 AC 976 (at paragraph 27):

“The metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law.”

However familiar the proposition, it renders even more surprising the suggestion that an international resolution can remove a right enshrined in a United Kingdom statute. If a citizen cannot rely upon an international treaty, still less an international instrument, to assert a right, it is difficult to see why a government should be allowed to rely upon such a measure to remove a right conferred by United Kingdom statute.

With those minatory principles in mind, we turn to the construction of the statute. Its purpose was to render rights which existed at an international level enforceable in domestic courts. The objective is made clear in the title to, and content of, the White Paper, “Rights Brought Home: the Human Rights Bill” (Cm 3782). It was further explained by Lord Nicholls, in relation to Section 6(1) of the Act, in Aston Cantlow PCC v. Wallbank [2004] 1 AC 546, at paragraph 6:

“The purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatibly with Convention rights. If they act in breach of this legal obligation victims may henceforth obtain redress from the courts of this country. In future victims should not need to travel to Strasbourg.”

Moreover, that purpose is to enable victims to enforce the same rights within the United Kingdom as would be enforceable in Strasbourg. Its purpose is not to enable victims to enforce rights of a wider scope than those which could be relied upon in Strasbourg.

In R (S) v. Chief Constable of the Yorkshire Police [2004] 1 WLR 2196, the House of Lords rejected the Court of Appeal’s view that the scope of Article 8 could be determined by reference to domestic cultural traditions. Lord Steyn drew a distinction, which is important support to the present proposition, between the relevance of cultural traditions to justification under Article 8(2) and their irrelevance to the scope of the right expressed in Article 8(1). The meaning and scope of the Articles of the Convention should be uniform within all forty five signatories. The very notion of giving the separate articles an autonomous Strasbourg meaning suggests a need for that approach. Domestic courts should keep pace with Strasbourg jurisprudence as to their meaning and scope and not, absent domestic legislation to the contrary, confer rights of either a greater or lesser effect. (See paragraph 27, endorsing the view of Lord Bingham in R (Ullah) v. Special Adjudicator [2004] 3 WLR 23at paragraph 20; paragraph 66 in Lord Rodger’s speech; and paragraph 78 in Baroness Hale’s speech.)

It is, of course, correct that Section 2 of the 1998 Act does not require domestic courts to follow Strasbourg jurisprudence. Section 2 of the European Communities Act 1972 provides a contrast. But Section 2 of the 1998 Act is expressed as an obligation. The less than imperative terms in which the duty is described are necessary to allow a distinction to be drawn between the ECtHR’s approach to the decisions of the High Contracting Parties and the approach of a domestic court. The latter may well recognise a narrower arena of discretion that that which falls within the margin of appreciation recognised in Strasbourg. Besides, a domestic court may well wish to follow a more recent Strasbourg authority than one which has lost relevance through age. But it is plain that Section 2 of the 1998 Act lends support to the proposition that the purpose of the Act was to allow the same rights to be enforced within domestic courts as would be enforceable in Strasbourg. Parliament clearly intended that there should be a close correspondence between the Convention rights as understood in Strasbourg and as understood in the United Kingdom. The width of the rights recognised in the United Kingdom courts should be consistent with the scope of the relevant rights accepted in Strasbourg.

Such coincidence does no more than recognise the principle that when a treaty obligation is incorporated into domestic law, that obligation will be construed by reference to the principles of international law governing the interpretation and application of treaties, rather than by any domestic principle of construction (see In re H [1998] AC 72at 87d-g).

We conclude that the purpose of the statute is not merely to permit victims to enforce in domestic courts rights enforceable in Strasbourg, but that those rights should be of the same scope and not a greater ambit.

The question then arises as to the extent to which the Act has achieved that aim. The claimant pointed out that there are examples of divergence between the Strasbourg jurisprudence and domestic law as to the impact of those Convention rights to which the Act refers.

In reMcKerr (q.v. supra) the House of Lords ruled that Section 6 and Article 2 of the Convention had no retrospective effect in relation to a death occurring before the Act came into force. But that case is merely an instance of the principle that domestic statutes do not, absent clearly expressed provisions, have retrospective effect. The Act is designed to render enforceable, from 2 October 2000, rights already enforceable in Strasbourg. That conclusion is of no assistance in demonstrating that the Act did not confer rights of the same scope as that which would be recognised in Strasbourg.

In R (Al Skeini and others) v. Secretary of State for Defence (q.v. supra), the Divisional Court admitted the possibility that the territorial jurisdiction afforded to the High Contracting Parties by the Convention may be more extensive than that of the 1998 Act (see paragraph 304). But both in that case and in R (B) v. Secretary of State for Foreign and Commonwealth Affairs (q.v. supra), the conclusion was that the jurisdiction relevant to those cases was that which was identified by the Strasbourg court (see generally paragraphs 18-23 above). B itself provides strong support for the proposition that the Act was, at least, designed to secure the same rights as those enshrined in Convention. Neither it nor Al Skeini supports the view that any greater right is conferred by the 1998 Act than that which is provided in the Convention.

Further support for the view that the rights under the 1998 Act were not intended to diverge is to be found in Section 7. That is not to say that one who asserted a right of greater scope than that which would be afforded to him in Strasbourg would not be “a victim” within the meaning of Section 7, but rather that alignment of the concept of victim within both jurisdictions suggests the intention to confer rights of an identical scope.

The Secretary of State cannot rely upon Section 3 in the way the courts have done in relation to questions concerning the territorial jurisdiction of the Act. To do so would merely be circular. But Section 3 is a powerful indication of the intention of the Act to afford co-extensive but not greater rights to those who seek to enforce them in domestic courts.

We conclude, therefore, that the intention of the statute was to enable victims within the United Kingdom to enforce the same rights within domestic courts as those which they could enforce in Strasbourg. That, of course, is not to say that the objective has been achieved within the operative parts of the Act. It is to those that we now turn.

Section 1(1) is the operative provision which is crucial to the determination of the meaning of the rights which the Act refers. But it is necessary to set out the whole of Section 1, which provides:-

“(1)

In this Act ‘the Convention rights’ means the rights and fundamental freedoms set out in

(a)

Articles 2 to 12 and 14 of the Convention,

(b)

Articles 1 to 3 of the First Protocol, and

(c)

Articles 1 and 2 of the Sixth Protocol,

as read with Articles 16 to 18 of the Convention.

(2)

Those articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15).

(3)

The articles are set out in Schedule 1.

(4)

The Secretary of State may by order make such amendments to this Act as he considers appropriate to reflect the effect, in relation to the United Kingdom, of a protocol.

(5)

In subsection (4) ‘protocol’ means a protocol to the Convention –

(a)

which the United Kingdom has ratified, or

(b)

which the United Kingdom has signed with a view to ratification.

(6)

No amendment may be made by an order under subsection (4) so as to come into force before the protocol concerned is in force in relation to the United Kingdom.”

The essential question is whether, as Mr Giffin submits, by virtue of Section 1(1) and Section 1(3) rights enforceable under the Act have an autonomous meaning within the United Kingdom or whether they are identical to those which are enforceable in Strasbourg. The claimant says that, although Section 1(1) identifies the rights set out in particular articles of the Convention, it is concerned with the text of the articles and not with their substantive effect. The substantive rights conferred by the Act are those contained in the articles set out in Schedule 1, to which Section 1(3) refers, and not those contained in the Convention. The key to construction lies in the use of the participle “set out”.

Section 1(3) has, in our view, no interpretative impact; it is merely a provision identifying the location of the text of the Articles for convenience.

Section 1(1) must be read with Section 21 defining the meaning of “the Convention”:

“'The Convention' means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4^th November 1950 as it has effect for the time being in relation to the United Kingdom.”

That definition is of importance. Contrary to the submissions of Mr Giffin, it is a powerful indication that the rights to which the Act refers are the same rights as would be enforceable in Strasbourg. Consistent with the weight he attaches to the words “set out”, he suggests that Section 21 is of no assistance. On the claimant’s case, Article 5 has not ceased to be set out in the Convention as it currently has effect in relation to the United Kingdom. That is true, but it fails properly to acknowledge the force of the words effect for the time being in relation to. The definition of “the Convention” focuses attention on the impact of the Convention on the United Kingdom. It requires recognition of the scope of the rights as they would be perceived in Strasbourg.

Those words cannot by themselves carry the Secretary of State home. But they are consistent with the context in which they are found, namely Sections 2, 3, 6 and 7. All of those sections, for the reasons which we have already advanced in identifying the purpose of Act, provide an indication that the scope of the rights is the same as that which would be recognised in Strasbourg, no less but no more.

Mr Giffin submitted that Section 2 was, at best, irrelevant to this question of construction. The obligation to take into account Strasbourg jurisprudence only arises when that court is asking the same question as that which is posed in a United Kingdom court. The question whether the Act has any mechanism whereby domestic rights cease to apply when inconsistent with a UNSCR is not a question with which Strasbourg would ever be concerned.

We agree that the solution to the problem will not be found in Strasbourg jurisprudence, but the obligation in Section 2 is, as we have said, more consistent with the notion that the same meaning is to be given to the rights in question in both jurisdictions.

Section 7 seems to us to give a similar indication. We accept that if the statutory assumption was that the same result would be achieved in domestic courts as in Strasbourg, Section 7(7) would be unnecessary. But the Secretary of State does not suggest the same result will always be reached in Strasbourg as in the United Kingdom. His submission is more limited; that the scope of the relevant Articles should be the same, not their application. The application of those rights will not always coincide, depending upon the evaluation of the courts in the two jurisdictions. The requirement in Section 7 is more consistent with an assumption that the scope of each relevant right would be the same. The question under Section 7(7) is most frequently whether an alleged victim has been directly affected by the right in issue. If that question must, by virtue of Section 7(7), be answered the same way, it would be odd if the scope of the right, the impact of which is in issue, varied between the two jurisdictions.

Sections 2 and 7 taken together, when read with Section 1(1) and Section 21, show that there is no domestically autonomous meaning to be attached to the rights set out in Schedule 1. They have the same meaning as within the Convention.

Mr Giffin suggested if that was the correct construction, then the reference in Section 1(1) to Articles 16 to 18 is otiose. The reference is more consistent with the proposition that the Act is setting out the text of the rights enforceable in the United Kingdom.

We do not find it surprising that the Act should draw attention specifically to the qualifications in Articles 16 to 18, but such, possibly unnecessary, emphasis does not, in our view, undermine the force of Section 21. On the contrary, the full-out words at the end of Section 1(1) suggest that that section is not identifying a text but, on the contrary, is providing a dictionary according to which the section is to be read. Section 21 is part of that dictionary.

The powers to delegate and reserve, contained in Sections 14 and 15, were also deployed by the claimant in resisting the displacement of Article 5 in the Act. They do, of course, provide a statutory mechanism whereby the United Kingdom may derogate, in the full glare of Parliamentary scrutiny, from Articles in the Convention. But those provisions tell one nothing as to the circumstances in which it will be necessary to do so. Derogations are unilateral acts. If the Secretary of State’s construction of the Charter and of the Convention is correct, no such unilateral act is necessary because, as a matter of international law, applicable to all signatories, the UNSCR overrides Article 5 in the Convention. If the rights needed to be changed from those in the Convention, then the sections provide the statutory mechanism. But the essential issue is whether on the proper construction of the Act derogation is necessary. Derogation is, after all, not an apt word to describe the process of applying the same rights in the United Kingdom as those applied in Strasbourg. Whether they are the same rights is a question of construction of the 1998 Act which is not solved by Sections 14 and 15.

We conclude that analysis of the provisions of Section 1(1), when read with Section 21 and in the context of Sections 2, 3, 6, and 7, does establish that the rights to which that section refers are the same rights as those which will be recognised in Strasbourg. There is no basis for construing the Act as providing rights with an autonomous United Kingdom meaning of greater scope than those in Strasbourg.

Mr Sales sought further to support his submissions by suggesting that there was binding Court of Appeal authority in favour of the Secretary of State to be found in R (Quark Fishing Limited) v. Secretary of State for Foreign and Commonwealth Affairs [2005] 1 QB 93. The decision of the court that Article 1 of the First Protocol did not extend over the territory of South Georgia is not relevant to this issue. But, submits Mr Sales, the reasoning of the court necessarily involved rejection of a proposition that the rights set out within Schedule 1 were autonomous and not the same as those in the Convention.

In Quark counsel for the claimant argued that the fish licensing instruction under challenge was an act of a public authority and, as such, prohibited by Section 6 of the Act. That submission required the claimant to establish two propositions. Firstly, that the instruction was in right of the United Kingdom not in right of South Georgia, and secondly, once that proposition was established, that as an act of a public authority within the United Kingdom it was irrelevant that the 1998 Act had no territorial application in South Georgia. The decision of the Court of Appeal records the submission in this way:

“29 What transforms the situation in this case, it was submitted, is the intervention of the United Kingdom Secretary of State as a public authority under Section 6 of the Act. That is the critical factor. The public authority is within the jurisdiction where the First Protocol applies. The fact that it does not apply in South Georgia, where the victim resides is irrelevant; the damage is caused by an act, the instruction, in the United Kingdom.”

Those submissions were answered by the Secretary of State by contending firstly, that the instruction was given by the Secretary of State acting in right of South Georgia and secondly that because the First Protocol had not been extended to South Georgia, the claimant had no Convention rights capable of being infringed for the purposes of Section 7 (see paragraph 30).

The court found against the claimant. As to territorial jurisdiction it considered the matter on the assumption that the instruction was given in right of the United Kingdom (see paragraph 52). It concluded that the Convention only applied if there had been notification under Article 4 of the Protocol in relation to the territory of South Georgia (see paragraph 56). The court continued:

“58.

… In respect of the Protocol, South Georgia does not fall within its legal space on the ground that the Convention applies there, or for any other reason, or because the June instruction was unlawful as contrary to the law of England and Wales. ….

59.

… The intervention of the United Kingdom government in the affairs of South Georgia, by way of the June instruction, does not create there a right which would not otherwise exist.”

It appears that the Court of Appeal, following Gillow 11 EHRR 335, examined the issue at an international or Convention level. The court must have rejected the argument that the territorial scope of Article 1 of the First Protocol was irrelevant. It must have rejected the view that it is sufficient merely to consider the rights set out within the 1998 Act. The court, as the words we have cited from paragraphs 58 and 59 demonstrate, did not agree that once a domestic public authority had been identified it was only necessary to examine whether it had infringed a right to which Section 1(1)(b) referred.

In short, it does appear that the Court of Appeal rejected the distinction drawn between the rights set out in the Act and the territorial jurisdiction of the rights in the Convention. However, the Court of Appeal did not need, in that case, to emphasise the principle that the Act confers rights of the same scope as those within the Convention. It appears that the court was content to follow the reasoning in Gillow. The argument that there was no need to consider whether there had been an extension of jurisdiction under Article 4 of the First Protocol was no more than a forlorn attempt to escape from the consequences of that decision.

We are prepared, therefore, to regard Quark as supporting the Secretary of State’s submissions. But we do not regard it as authority which binds us on the question in this case. The principle for which the Secretary of State contends finds no clear exposition in Quark.

Before reaching any final conclusion, there is one further consequence of the Secretary of State’s submissions which it is important to consider. If the Secretary of State is correct, then this court will be compelled to analyse the meaning and effect of international treaties and resolutions. The reluctance of the courts to undertake so unfamiliar a task is not a matter of judicial ennui. In R (Campaign for Nuclear Disarmament) v. Prime Minister of the United Kingdom [2002] EWHC 2759 QB,the Divisional Court reviewed those authorities which established that the interpretation of treaties which have not been incorporated in domestic law is not a matter falling within the interpretative jurisdiction of an English court. Simon Brown LJ concluded (at paragraph 47(i)):

“The court has no jurisdiction to declare the true interpretation of an international instrument which has not been incorporated into English domestic law and which it is unnecessary to interpret for the purposes of determining a person’s rights or duties under domestic law.”

As Mr Giffin asserted, it can hardly have been the intention of Parliament that the court should embark upon this exercise in examining the meaning and effect of a right set out in the Act. The court should not allow itself to be forced into a position of considering the meaning and effect of international treaties unless the construction of the Act required it.

We should recall that in CND the court was asked to determine the meaning of an international measure for reasons which the court found were not related to any issue of domestic law (see paragraph 37). In this case we are required to construe the meaning and scope of Article 5 as a matter of English law. If the domestic statute compels us to examine the effect on the Convention of a Security Council resolution when read with the United Nations Charter, then we must do so.

On the hypothesis that UNSCR 1546, read with the United Nations Charter, does have the meaning and effect for which the Secretary of State contends, we remain conscious of the stark effect on our domestic law. Enforceable rights will have been displaced by a resolution unconsidered by Parliament, the effect of which might well have passed unnoticed until long after the resolution was promulgated. The court must grapple with unfamiliar principles of international law to ascertain whether, indeed, the resolution has the effect suggested. But we also bear in mind that the issue only arises in a particular situation where the United Nations has called upon its members to assist in stabilising Iraq and bringing the peace so essential for any protection of human rights to be secured. If the claimant is correct, then the Secretary of State could be found guilty of a breach of Article 5 in United Kingdom courts whereas, on the hypothesis necessary in this argument, the United Kingdom would be acquitted of any such infringement in Strasbourg. Such a result would, in our view be wholly inconsistent with the purpose and meaning of the 1998 Act. We conclude that, by virtue of Section 1(1) and Section 21, the rights to which Section 6 applies are rights of the same scope as those enforceable under the Convention. Such a construction achieves the purpose of the statute, namely to allow victims to enforce those rights to which the Act refers in the United Kingdom and not be compelled to vindicate them in Strasbourg.

We turn to consider whether UNSCR 1546 does have the effect of displacing Article 5 as a matter of international law, as the Secretary of State contends. For that purpose we consider first its specific context and its natural meaning when read in that context. We then go on to look at a submission by the claimant that it should not be interpreted so as to override or depart from fundamental human rights. Finally, we consider the applicability and effect of Article 103 of the UN Charter.

UNSCR 1546 was adopted on 8 June 2004 in anticipation of the transfer of the authority of the Coalition Provisional Authority (CPA) to the Iraqi interim government. This was expected to take place by 30 June 2004 but the actual transfer of authority took place on 28 June 2004.

The purpose of the resolution was to continue the mandate of the multinational force (MNF) and to establish the framework within which that force was to operate.

The relevant parts of the recitals to the resolution provide:

“[1] Welcoming the beginning of a new phase in Iraq’s transition to a democratically elected government, and looking forward to the end of the occupation …

[5] Recognising the importance of international support…for the people of Iraq in their efforts to achieve security and prosperity, and noting that the successful implementation of this resolution will contribute to regional stability …

[12] Recognising that international support for restoration of stability and security is essential to the well being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming Member State contributions in this regard under resolution 1483 (2003) of 22 May 2003 and resolution 1511 (2003),

[13] Recalling the report provided by the United States to the Security Council on 18 April 2004 on the efforts and progress made by the multinational force,

[14] Recognising the request conveyed in the letter of 5 June 2004 from the Prime Minister of the Interim Government of Iraq to the President of the Council, which is annexed to this resolution, to retain the presence of the multinational force,

[15] Recognising also the importance of the consent of the sovereign Government of Iraq for the presence of the multinational force and that government,

[16] Welcoming the willingness of the multinational force to continue efforts to contribute to the maintenance of security and stability in Iraq in support of the political transition, especially for upcoming elections, and to provide security for the United Nations presence in Iraq, as described in the letter of 5 June 2004 from the United States Secretary of State to the President of the Council, which is annexed to this resolution,

[17] Noting the commitment of all forces promoting the maintenance of the security and stability in Iraq to act in accordance with international law. Including obligations under international humanitarian law, and to co-operate with relevant international organisations ….”

The operative part of the resolution provides:

“9.

Notes that the presence of the multinational force in Iraq is at the request of the incoming interim Government of Iraq and therefore reaffirms the authorization for the multinational force under unified command established under resolution 1511 (2003) having regard to the letters annexed to this resolution;

10.

Decides that the multinational force shall have all the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph seven above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities; ….

12.

Decides further that the mandate for the multinational force shall be reviewed at the request of the Government of Iraq or twelve months from the date of this resolution, and that this mandate shall expire upon the completion of the political process set out in paragraph four above, and declares that it will terminate this mandate earlier if requested by the Government of Iraq.”

Paragraph 10 of the resolution specifically confers power on the MNF to take all necessary measures in accordance with the letters annexed to the resolution. The letter from Prime Minister Allawi, the head of the interim government which was to assume authority in Iraq at the end of the occupation, pointed out that security and stability were essential to the political transition. It asked for the support of the Security Council and the international community in that endeavour “until we are able to provide security for ourselves”. It continued:

“We seek a new resolution on the Multinational Force (MNF) mandate to contribute to maintaining security in Iraq, including through the tasks and arrangements set out in the letter from the Secretary of State Colin Powell to the President of the United Nations Security Council.”

The letter from Secretary of State Powell annexed to the resolution contained the following :

“Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure forces protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include … internment where this is necessary for imperative reasons of security in Iraq….

In order to continue to contribute to security, the MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel and which will ensure arrangements for, and use of assets by, the MNF. The existing framework governing these matters is sufficient for these purposes. In addition, the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions” (emphasis added).

The terms of the resolution make it clear that it must be interpreted in the context of that which went before. From May 2003 United Kingdom armed forces had formed part of the multinational forces responsible for security and stabilisation. Amongst its obligations, by virtue of its status as a belligerent occupant, there was conferred upon the United Kingdom the power pursuant to Article 78 of the Fourth Geneva Convention relative to the protection of civilian persons in a time of war, of 12 August 1949 (“Geneva IV”). Article 78 provides:

“If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.

Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay, In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power …. ”

As a belligerent occupant the force was also under obligations under the Hague Regulations (“The Regulations Respecting the Laws and Customs of War on Land annexed to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land”) which included the obligation under Article 43 to take all measures within its power to restore and ensure so far as possible public safety, and a similar obligation under Article 27 of Geneva IV in relation to the protection of the civilian population.

Those powers and obligations were recognised in Security Council Resolution 1483 (2003) adopted on 22 May 2003 which noted the responsibilities and obligations under applicable international law of those States acting as Occupying Powers under unified command (known as “the Authority”). That resolution spoke (at paragraph 4) of working towards conditions of security and stability and called upon all concerned to comply with the Geneva Convention of 1949 and the Hague Regulations of 1907.

Security Council Resolution 1483 was re-affirmed by Resolution 1511 adopted by the Security Council on 16 October 2003. That resolution reiterated that the provision of security and stability was essential to the successful completion of the political process of drafting a new constitution and holding elections. It continued authorisation of the MNF to take all necessary measures to contribute towards the maintenance of security and stability in Iraq (see paragraph 13).

In a useful and important article by Sir Michael Wood on the interpretation of Security Council resolutions ((1998) 2 Max Plank Yearbook of United Nations Law 73), he suggests that the terms of a resolution should be interpreted in the light of its object and purpose and in its context. As he observed, such resolutions are often not self-contained but may incorporate by reference other documents (see page 87).

With that advice in mind the letter of Secretary of State Powell, to which Prime Minister Allawi referred, is important. That letter spoke of “internment where this is necessary for imperative reasons of security”. That was a specific power afforded to the MNF while it was a belligerent occupant. It is right to infer that the use of those words was not accidental. It provides a clear indication of the intention that the powers previously derived from Article 78 of Geneva IV were to be continued.

Further, the essential purpose of UNSCR 1546 was that the MNF should continue its existing efforts to maintain peace and security within Iraq, without which the Iraqi interim government would not be able to fulfil its purpose of providing democratic institutions for the people of Iraq.

Mr Giffin asserted that it was not open to the United Kingdom to pretend that it was in occupation and rely on powers appropriate only to those of a belligerent occupant in order to displace more favourable human rights provisions. In our view, the consequences of such a submission contradict the plain purpose and meaning of UNSCR 1546. If the claimant was correct the only way in which the MNF could fulfil the task identified in the resolution would be by derogation either under the Convention, if those participating in the force were signatories to it, or from the equivalent to Article 5 contained within Article 9 of the International Covenant on Civil and Political Rights 1996. There are a number of difficulties with this argument.

Firstly, UNSCR 1546 is silent as to the need for those participating States to derogate from their existing international obligations. The plain purpose of the resolution was to continue the pre-existing authorisation granted to the MNF. There is no suggestion whatever that, once the Iraqi interim government had assumed authority, the legality of the continuing powers conferred on the MNF would change. Secondly, and to the contrary, the Security Council was well aware of the powers previously authorised. The preamble to UNSCR 1546 makes specific reference to the report provided by the United States to the Security Council on 16 April 2004 (see paragraph 13). That report, in referring to the conduct of the full spectrum of military operations specifically drew attention “to detention of those who are threats to security”.

Thirdly, UNSCR 1546 provides a uniform framework for all States participating in the MNF. It would be absurd if that single regime was intended to be dependent upon unilateral action by way of derogation by individual member States subject to their own differing international obligations. Fourthly, the individual situation of the United Kingdom provides a powerful example of the difficulties which follow from the claimant’s argument. Article 15 of the ECHR provides that a high contracting party may take measures derogating from an obligation under the Convention “in time of war or other public emergency threatening the life of the nation” (an important feature of R(A) v the Secretary of State for the Home Department (q.v.supra)). Whilst the defendant had to reserve his position as to whether it would be open to the United Kingdom to derogate from the Convention in respect of participation in the MNF in Iraq, the notion that those participating in the MNF would be left in a state of legal uncertainty is surprising. Participating states need to know where they stand when faced with making decisions at very short notice, without being left in uncertainty. We are also told that no state has derogated in relation to actions abroad at the invitation of the Security Council since 1951.

For all these reasons we conclude that UNSCR 1546 has the meaning and effect which are plain, particularly from paragraph 10 of the Resolution. The resolution is designed to authorise the MNF to exercise the powers it previously exercised when in belligerent occupation. They include the power identified in Secretary of State Powell’s letter of internment where this is necessary for imperative reasons of security. The meaning and intention of the resolution is to continue the powers exercisable in accordance with Article 78 of Geneva IV but inconsistent with Article 5 of the ECHR. In so ruling we must record that our attention was drawn to the evidence of Vivien Rose, at that time deputy legal adviser in the Ministry of Defence. Her statement speaks of the specific purpose of the use of the words in the Secretary of State’s letter to mirror the language used in Article 78. We have reached our conclusions independently of her assertion.

We conclude that by UNSCR 1546, read in the context of the earlier resolutions, the Security Council conferred on the MNF the power which that force had previously held as a belligerent occupant to intern those suspected of conduct creating a serious threat to security in Iraq.

Although we regard the meaning and effect of the resolution, in the context of other resolutions in relation to Iraq, as plain, we must, nevertheless, consider a further and more fundamental submission made by the claimant. He contends that the resolution must be read in a way which does not override or depart from the fundamental human rights as reflected in the Charter. UNSCR 1546 must not be read in a way which infringes the prohibition against detention without charge and trial which, as he rightly says, is “one of the most deeply entrenched norms of international human rights law”.

In support of that proposition the claimant draws attention to the preamble to the United Nations Charter which states that the peoples of the United Nations are determined “to reaffirm faith in fundamental human rights …”. In Article 1(3) the Charter itself refers to one of the purposes being “to achieve international co-operation … in promoting and encouraging respect for human rights and for fundamental freedoms …”. Article 2(2) requires members to fulfil in good faith obligations assumed in accordance with the Charter. Article 55(c) requires the United Nations to promote universal respect for observance of human rights and fundamental freedoms. The Security Council are required by Article 24(2) to “… act in accordance with the Purpose and Principles of the United Nations”.

Mr Giffin in addition drew attention to the separate opinion of Judge adhoc Lauterpacht in the Bosnia Genocide Convention Case (ICJ Reports 1993, page 325, paragraphs 101-102), in which he said :-

“It is not to be contemplated that the Security Council would ever deliberately adopt a resolution clearly and deliberately flouting the rule of jus cogens or requiring a violation of human rights.”

In the Advisory Opinion on Namibia (ICJ Reports 1971, page 16, paragraph 52) the Court cited with approval the opinion of the UN Secretary General that:

“members of the United Nations have conferred upon the Security Council powers commensurate with its responsibility for the maintenance of peace and security. The only limitations are the fundamental principles and purposes to be found in chapter 1 of the Charter.”

In the light of those principles it is not to be supposed, argues Mr Giffin, that the Security Council displaced one of the most fundamental rights without any expressed intention to override fundamental human rights. He contrasts other resolutions where an intention to depart from international treaties was made explicit.

These submissions seek to draw an analogy with the interpretative principle under domestic law that courts must assume that Parliament will not lightly override fundamental rights (see e.g. R v. Secretary of State for the Home Department, ex parte Simms [2002] AC 115 at 131e–g and per Lord Steyn in Roberts v. Parole Board (q.v. supra, at paragraph 93).

These submissions would strike a chord with any United Kingdom judge. But in our view the interpretative principle for which the claimant contends can find no place in the analysis of the meaning and effect of UNSCR 1546. As that resolution and its predecessors make clear, it is made pursuant to chapter VII of the Charter. Chapter VII of the Charter confers extensive powers upon the Security Council, as the heading foreshadows, “… with respect to threats to the peace, breaches of the peace and acts of aggression”.

By Article 39 the Security Council is charged with the maintenance and restoration of international peace and security. By Article 42, if Article 41 measures not involving the use of armed force are inadequate, the Security Council is empowered to take such action “… as may be necessary to maintain or restore international peace and security”, including operations by the forces of members of the United Nations”.

Those powers fulfil a principal purpose of the United Nations referred to in Article 1:

“The Purposes of the United Nations are :-

1)

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”

As UNSCR 1546 makes clear, the serious absence of security in Iraq provokes the need for the United Nations to call for assistance from its members to restore security, absent which human rights are undermined. The United Nations has no forces of its own. In those circumstances it is bound to call upon its members to assist in securing the stability without which no human right can be maintained or protected.

Mr Giffin relied upon Article 24(2) of the Charter; it imposes an obligation upon the Security Council not to override fundamental human rights:

“2)

In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations ….”

But that Article must be read in the light of the obligation in Article 24(1):

“1)

In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security ….”

In such circumstances there is, in our view, no room for any requirement to interpret the resolution in accordance with principles analogous to Simms. The Security Council, charged as it is with primary responsibility for maintaining international peace and security, has itself determined that a multinational force is required. Its objective is to restore such security as will provide effective protection for human rights for those within Iraq. Those who choose to assist the Security Council in that purpose are authorised to take those steps, which include detention, necessary for its achievement.

We do not find Namibia of assistance. The ICJ’s advisory opinion was sought in relation to a continued presence of the government of South Africa in Namibia contrary to Security Council Resolution 276. In paragraph 114 the Court referred to the need to consider all the circumstances in determining the legal consequences of a Security Council resolution. The Court drew attention to the importance of the obligation under Article 25 of the Charter to which we shall shortly return. The Court had to consider the issue of member States continuing to deal with the Government of South Africa in a manner inconsistent with the Security Council Resolution 276. It concluded that member States were under an obligation to abstain from entering into treaty relations with South Africa in circumstances where South Africa purported to act on behalf of Namibia. It continued:

“with respect to existing bilateral treaties, member States must abstain from invoking or applying those treaties or provisions of treaties concluded by South Africa on behalf of or concerning Namibia which involve active inter-governmental cooperation. With respect to multi-lateral treaties, however, the same rule cannot be applied to certain general conventions such as those of a humanitarian character, the non performance of which may adversely affect the people of Namibia.”

Later in its opinion the Court said of the actions of the Government of South Africa that they constituted a denial of fundamental human rights which was “a flagrant violation of the purposes and principles of the Charter” (see paragraph 131).

It is plain that the court was not adopting an approach similar to that of the United Kingdom courts which interpret a statute in accordance with the principle in Simms. It was merely pointing out that since the object of Resolution 276 was to promote and not to undermine human rights in Namibia, member states, in abstaining from reliance on bilateral treaties, were enjoined not to do so in a way which would undermine the restoration of human rights within Namibia.

We conclude that there is no basis for reading UNSCR 1546 in a way which preserves an equivalent right to that protected by Article 5 in the Convention. For the purposes of restoring and maintaining that peace and security without which there can be no human rights within Iraq, the Security Council has authorised such detention as is necessary for imperative reasons of security in accordance with Article 78 of Geneva IV.

The claimant advances two arguments in contending that Article 103 does not apply to UNSCR 1546. Firstly, he contends that Article 103 applies only to resolutions which impose obligations. No such obligation is imposed by 1546. Secondly, he contends that Article 103 does not apply in a way which overrides fundamental human rights protected in international treaties.

As to the first argument, it is clear that UNSCR 1546 imposes no obligation; it merely authorises. Mr Giffin rightly points out that the issue whether Article 103 applies to authorisations adopted by the Security Council is a matter of controversy between respected authors. Article 103 provides:

“In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

The starting point for consideration of the submission that Article 103 has no application to a Security Council resolution which merely confers authorisations must be Article 25 of the Charter. This provides:

“The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

Obligations arising from Security Council resolutions override obligations under other international treaties (see e.g. the Lockerbie case, ICJ Reports 1992, page 3). There was no dissent from that proposition. But once it is accepted that those Security Council resolutions, made under Chapter VII, which impose obligations supersede other treaty commitments, there is no sensible line to be drawn between those resolutions and resolutions which confer authorisations.

The Security Council, as we have observed, has the primary responsibility of maintaining and restoring international peace and security. To that end, it has the specific powers to which we have referred under Articles 39 to 42. Absent agreement under Article 43, the Security Council has only been able to discharge its primary responsibility by authorising military action by states or organisations such as NATO. It can only, absent such agreement, pursue its purposes by way of authorisation. Without Article 103, military action taken in pursuance of a resolution which merely authorised such action would breach the prohibition in Article 2(4) of the Charter. Unless Article 103 was engaged, the Security Council would be powerless to protect international peace and security by calling on states to assist in providing force to achieve that objective. There would be no means of authorising and regulating military action.

Although there is no unanimity of opinion, there is ample authority from leading academic commentators that resolutions which authorise can override international conventional obligations pursuant to Article 103. As Professor Frowein (the former president of the European Commission on Human Rights) says in the commentary on the UN Charter edited by Simma (second edition, 2002, at page 729):

“Otherwise the Charter would not reach its goal of allowing the Security Council to take the action it deems most appropriate to deal with the threats to the peace – it would force the Security Council to act either by way of binding measures or by way of recommendations but would not permit intermediate forms of action. This would deprive the Security Council of much of the flexibility it is supposed to enjoy. It seems therefore preferable to apply the rule of article 103 to all action under articles 421 and 422 and not only to mandatory measures.”

We conclude, therefore, that UNSCR 1546 does engage Article 103 and that actions taken in pursuance of UNSCR 1546 prevail over other treaty obligations such as Article 5 of the ECHR.

Mr Giffin’s second argument, that Article 103 cannot set aside fundamental human rights, owes much to the material to which we have already referred in relation to a similar argument concerning Security Council resolutions. No such limitation on the effect of Article 103 can be found in the commentaries of any respected author. On the contrary, as Professor Bernhardt, a former president of the European Court of Human Rights, states in Simma’s commentary (page 1302, paragraph 37):

“Article 103 is essential if the Charter is to be recognised as the constitution of the international community, and if this recognition is to be respected in practice. World peace itself may depend on respect for the higher rank and binding force of the Charter as emphasised by article 103.”

Although Mr Giffin referred to a suggestion that Article 103 did not bite on customary international law, of which freedom from arbitrary detention forms part (though it is not jus cogens), he accepted that the commentators are split on the issue and he did not pursue the point with any vigour.

However, he did draw attention to the absence of reliance upon Article 103 in decisions of the European Court of Human Rights. In Bosphorous Hava Yollari v. Ireland (application number 45036/98) the Court treated Ireland’s international law obligations as justification for the interference with the applicant’s property rights, but did not rely upon Article 103 of the Charter as providing a complete answer to the claim. Pursuant to Security Council Resolution 820, States were required to impound all aircraft in their territories in respect of which a majority or controlling interest was held by persons and undertakings in or operating from FRY. When the Irish government acted in accordance with that resolution, the applicant complained of a breach of Article 1 of the First Protocol.

Article 103 should have been, if the Secretary of State is correct, a complete answer to the claim. But the court said (at paragraph 153):

“A contracting party is responsible under Article 1 of the Convention for all acts and omissions of its organs, regardless of whether the act or omission in question is a consequence of domestic law or the necessity to comply with international legal obligations.”

However, Ireland’s international law obligations were relevant to whether there was sufficient justification for interference. The Irish judge had apparently held that the resolution could not, since it was not part of Irish domestic law, constitute the legal basis for the impoundment (see paragraph 145).

We were told by Mr Sales that the United Kingdom government had contended that Article 103 provided a complete answer. The Court does not appear to have considered it necessary to deal with it and, in the light of its views as to justification, did not need to.

In Waite and Kennedy v. Germany (application no. 26083/94), employees of an international space agency claimed an infringement of Article 6 of the Convention by reason of the agency’s claim to immunity. The Court commented that where states attributed immunities to international organisations:

“It would be incompatible with the purpose and object of the Convention … if the contracting states were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution.”

We do not regard this decision as touching upon the effect of Article 103.

More relevant is the decision in Loizidou v. Turkey (1996) 23 EHRR 513 concerning claims to property against Turkey in respect of northern Cyprus. The Turkish government contended that the applicant had lost ownership pursuant to an article in the constitution of the so-called TRNC. The Court said (at paragraph 43, page 526):

“The principles underlying the Convention cannot be interpreted and applied in a vacuum. Mindful of the Convention’s special character as a human rights treaty, it must also take into account any relevant rules of international law when deciding on disputes concerning its jurisdiction pursuant to Article 49 of the Convention.”

Security Council Resolution 541 declared the proclamation of the establishment of the TRNC as legally invalid, and against that background the court declined to attribute any legal validity to the provisions removing ownership (see paragraph 44, page 527). Although no reference was made to Article 103, it is clear that the effect of the decision was to accord primacy to Security Council Resolution 541.

Bankovic v. Belgium (2001) 11 BHRC 435 also stresses the importance of interpreting the Convention in the light of relevant rules of international law whilst remaining mindful of its “special character” as a human rights treaty (see paragraph 57).

None of these cases are authority for the proposition that Article 103 cannot override the Convention.

In those circumstances we conclude that Article 103 is not merely engaged by UNSCR 1546 but that the resolution does indeed, by virtue of Articles 25 and 103 of the Charter, in principle override Article 5 of the Convention in relation to the claimant’s detention in Basra.

On the basis that UNSCR 1546 is capable of displacing Article 5, it appears to be common ground that it can have that effect only if and in so far as the claimant’s detention is lawful under the regime established by the resolution. As already mentioned, the claimant’s case is that his detention is unlawful under that regime for two reasons. One reason is that the detention is not “necessary for imperative reasons of security”. That issue is considered separately below. The other reason, which we consider here, is that the detention is in breach of the procedural requirements of Article 78 of Geneva IV.

As explained above in the section on the meaning and effect of UNSCR 1546, the resolution draws upon the framework that existed prior to the end of the occupation of Iraq on 28 June 2004. That framework included Article 78 of Geneva IV, which it is convenient to set out again:

“If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.

Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power ….”

It is accepted by the defendant that the claimant’s detention must comply with the requirements of Article 78.

In summary, the claimant’s case is that the detention does not comply with the procedural requirements of Article 78 and that such non-compliance renders the detention unlawful and takes it outside the scope of the authorisation conferred by UNSCR 1546; alternatively, it means that the defendant cannot rely on UNSCR 1546 as displacing the procedural obligation under Article 5(4) ECHR, upon which the claimant can therefore continue to rely. The defendant’s response is that the claimant’s detention does comply with Article 78, but that non-compliance with the procedural requirements of Article 78 would in any event not affect the lawfulness of the claimant’s detention or take it outside the scope of the authorisation conferred by UNSCR 1546; at most, it would cause the procedural obligation under Article 5(4) ECHR to revive.

Before considering the respective arguments in greater detail, we need to summarise the facts relevant to this aspect of the case.

At the time of the claimant’s original detention, and until 1 December 2004, Major General William Rollo CBE was Commander of Multi-National Division forces in South Eastern Iraq (“Comd MND(SE)”) and Commander of British Forces in MND(SE). In his witness statement he sets out the procedures governing detention and internment during that period. The initial decision to intern was taken by the Commanding Officer of the detaining unit and resulted in the internee receiving a Notice of Internment explaining his rights. Thereafter:

“(i)

within 7 days of internment the grounds for the initial decision to intern were reviewed by the Divisional Internment Review Committee (DIRC);

(ii)

the DIRC comprised various British MND(SE) personnel including the Officer Commanding (OC) of the DTDF [Divisional Temporary Detention Facility], together with legal, military intelligence and operational Staff Officers, and MOD and FCO policy advisers (Polads);

(iii)

the role of the DIRC was to review all available evidence, intelligence and other paperwork associated with the internee’s original apprehension as well as information obtained after that time in order to assess whether the internee’s continued internment was necessary for imperative reasons of security in Iraq. The DIRC would then make recommendations to Comd MND(SE) as to whether or not the internment should continue;

(iv)

the DIRC recommendation would be passed to Comd MND(SE) to decide whether the internee should remain in internment, be transferred to the Iraqi criminal justice system, or released. It was open to Comd MND(SE), in addition to considering the DIRC recommendation, to review the relevant intelligence material before reaching his decision;

(v)

if Comd MND(SE) authorised internment, further reviews (in accordance with (iv) and (v) [sic] above) took place: (a) 28 days after the date of internment commenced; (b) at 3 months from the date of internment; and (c) thereafter at 3 monthly intervals. If between any fixed review date new information came to light that indicated that the criteria for internment were no longer met, an additional review would be undertaken as soon as possible;

(vi)

at any stage, the person interned was entitled to make written representations to the DIRC. This entitlement was set out in the Notice of Internment. Any such representations would be considered by the DIRC and the Comd MND(SE) on the review. An opportunity to appeal against internment (also by way of written representations) existed at the stage of the 28 day review, the 3 month review, and the 3 monthly reviews thereafter. In substance if written representations were received, the review process would incorporate the appeal procedure.”

In the case of the claimant, the first review took place on 12 October 2004, two days after his initial detention. Owing to the sensitivity of the intelligence material upon which his arrest and detention had been based, only two members of the DIRC were permitted to examine that material. Major General Rollo himself was aware of it and reviewed it on a number of occasions, so that he was very familiar with it. He also received briefings and advice on it. He states that there was no doubt in his mind that the claimant represented an imperative threat to the security of Iraq and that his internment was necessary.

On 9 November the DIRC considered the claimant’s internment and noted that it was being dealt with by Major General Rollo in conjunction with those members of the DIRC who were in a position to consider the relevant intelligence material. The formal 28 day review had been due on 6 November but had not taken place, apparently because of Major General Rollo’s other commitments. In fact, the internment was not formally reviewed by him until 19 November, at which point he decided that the relevant criterion for detention continued to be met.

Major General Jonathon Peter Riley DSO MA took over from Major General Rollo as Commander of MND(SE) and of British Forces in MND(SE) on 1 December 2004. In his witness statement he explains that the relevant procedures were revised in January 2005. The composition of the DIRC was reduced to four more senior members: the Chief of the Divisional HQ Staff, the Chief Divisional Polad (policy adviser), the Chief Divisional Intelligence Officer, and the Chief Divisional Legal Officer. The relevant procedures were as follows:

“(i)

the initial decision to authorise a person’s internment is made by the commanding officer of the unit detaining the person …;

(ii)

within 48 hours of the initial detention the DIRC convenes in order to undertake an initial review [of] all available evidence, intelligence and other paperwork associated with the internee’s original apprehension, and any relevant information subsequently generated, in order to assess whether internment is necessary for imperative reasons of security in Iraq. The DIRC subsequently makes a recommendation to Comd MND(SE) as to whether the internee should remain in internment, be transferred to the Iraqi criminal justice system or released;

(iii)

each month the DIRC conducts a review of the grounds for internment of each internee and makes recommendations to the GOC as to whether the internment should continue. The precise timing of these reviews depends on operational commitments. This monthly cycle is different from the process that applied under the previous arrangements (which provided for reviews after 7 days, 28 days, 3 months and thereafter at 3 monthly intervals);

(iv)

in addition, at any stage during the period of internment there may be ongoing evidential and intelligence inquiries or other issues which necessitate an ad hoc review by the DIRC outside the regular monthly cycle ….

(v)

after each DIRC review a written record is produced to the Comd MND(SE) containing a summary of the issues in each internee’s case together with recommendations and the requisite internment notices where appropriate. On reading the DIRC Record, Comd MND(SE) may question members of the DIRC on their recommendations and, if necessary, will also view the relevant evidential or intelligence material to assess the information in order to determine whether the test for internment has been met. If the Comd MND(SE) authorises continued internment, the internee will receive a copy, and Arabic translation, of the signed authorisation together with reasons for the internment and the date of the next review.”

There is also a Divisional Internee Monitoring Committee (DIMC) which meets on a weekly basis to monitor the personal, health and welfare circumstances of each internee and to consider any new information which may affect the necessity for internment and any submissions made by or on behalf of each internee. The DIMC produces a written report of each meeting, a summary of which is circulated to members of the DIRC.

The claimant’s case has been subject to regular reviews under the new procedures. For the purposes of those reviews the members of the DIRC had available to them all the intelligence material held by MND(SE) on the claimant.

Major General Riley states that he does not consider his role to be one of simply rubber-stamping the DIRC’s recommendation. On the first occasion when he was asked to authorise the claimant’s continued detention he studied the intelligence file to satisfy himself that it was necessary for imperative reasons of security. He was completely satisfied as to the basis for such continued detention. Since then there have been no material changes to cause him to alter that assessment.

We turn to consider in greater detail the submissions directed towards those facts. Mr Giffin submits that the claimant has not been afforded any “right of appeal” or “periodic review … by a competent body” as required by Article 78 of Geneva IV. As we understand his submissions, he adopts, or at least is prepared for present purposes to accept, a proposition in Mr Sales’s skeleton argument that Article 78 is intended to give persons interned in occupied territory the same procedural rights as Article 43 of Geneva IV gives to civilian internees in the territory of the belligerents. Article 43 provides that an internee is entitled to have his internment reconsidered as soon as possible “by an appropriate court or administrative board”; and the same expression is found in Article 35(2). But Mr Giffin submits that the decision must still be taken by a court or by an independent and impartial administrative board. It cannot lawfully be taken by an individual military commander. In this case, however, the sole decision-maker throughout has been the Commander of MND(SE).

Mr Giffin places reliance on the commentary on Geneva IV by Dr Jean Pictet, Director for General Affairs of the International Committee of the Red Cross. In relation to Article 43, Pictet comments (at page 260):

“The system adopted is modelled on the provision in Article 35, paragraph 2, concerning the question of permission to leave the country. The State may act either through the courts or through administrative channels. The existence of these alternatives provides sufficient flexibility to take into account the usage in different States. The Article lays down that where the decision is an administrative one, it must be made not by one official but by an administrative board offering the necessary guarantees of independence and impartiality” (emphasis added).

Pictet’s commentary on paragraph 2 of Article 78 (at page 369) is in these terms:

“The second paragraph sets forth the procedural safeguards which are designed to ensure that the principles of humanity will be borne in mind when people are interned ….

It is for the Occupying Power to decide on the procedure to be adopted; but it is not entirely free to do as it likes; it must observe the stipulations in Article 43, which contains a precise and detailed statement of the procedure to be followed when a protected person who is in the territory of a Party to the conflict when hostilities break out is interned ….

The acknowledged right of those concerned to appeal against any decision to intern them … is a further safeguard, and an important one. The details given concerning the practical application of the appeal procedure – including the recommendation that decisions which are upheld should be reviewed every six months – show that the authors of the Convention took every possible care to prevent any form of abuse. They did, however, leave it to the Occupying Power to entrust the consideration of appeals either to a ‘court’ or a ‘board’. That means that the decision will never be left to one individual. It will be a joint decision, and this offers the protected persons a better guarantee of fair treatment” (emphasis added).

Mr Sales submitted in his skeleton argument, consistently with Pictet’s commentary, that the procedural right under Article 78 is to a review by an administrative board. His oral submissions involved a significant shift of ground, in that he contended that Pictet’s view as to the need for an administrative board was unreasoned and that, having regard to the difference in wording and in context between Article 78 and Articles 35(2) and 43, it should be held that a military commander is capable of constituting by himself a “competent body” for the purposes of Article 78. As to the difference in context, he stressed that an internment decision under Article 78 must be seen as a military decision and submitted that the regime must be interpreted in such a way as to make it possible for the commander on the ground to take the ultimate decision in relation to the area for which he is ultimately responsible.

In our judgment there is no warrant for departing from the views expressed by Pictet, who does provide a reasoned basis for linking Article 78 with Articles 35(2) and 43 and for interpreting the reference to a “competent body” in Article 78 as being a reference to a court or administrative board.

On that basis, as it seems to us, the procedures applied to the claimant’s detention do not strictly meet the requirements of Article 78, since the decision-maker was a single individual rather than an administrative board. On the other hand, the non-compliance is in our view more technical than substantial. Although the Commander of MND(SE) has been the actual decision-maker and has not regarded himself as applying a rubber stamp, he has acted in practice on each occasion in accordance with the recommendation of the DIRC. Under the procedures in place while Major General Rollo was Commander, the DIRC was a relatively large body and only two members saw the relevant intelligence material. However, under the procedures that have been in place since January 2005, the DIRC is substantially reduced in size and all four of it members have seen the intelligence material. Although the Commander and the panel do not have the qualities of independence and impartiality sufficient to meet the requirements of Article 6 ECHR, we do not think that complaint could properly be made of them in the context of Article 78 of Geneva IV. If, therefore, the decision had been taken jointly by the Commander and the panel, rather than by the Commander on the recommendation of the panel, the procedure would in our view have complied with Article 78.

To the extent that there has been a failure to comply with the procedural requirements of Article 78, what is the consequence? In his reply, Mr Giffin drew our attention to a work by Jean-Marie Henckaerts and Louise Doswald-Beck on Customary International Humanitarian Law, which refers in paragraph 2774 of volume 1 to a judgment of 20 February 2001 of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, in the case of Delalić:

“The involuntary confinement of a civilian where the security of the Detaining Power does not make this absolutely necessary will be unlawful. Further, an initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative body as prescribed in Article 43 of Geneva Convention IV.”

Mr Giffin submitted that, by parity of reasoning, breach of the procedural requirements under Article 78 renders the detention unlawful, with the consequence for the present case that the detention is not authorised by UNSCR 1546 and the claimant is entitled to rely on the entirety of his rights under Article 5.

The alternative view put forward by Mr Sales is that, just as a detention can be substantively lawful under Article 5(1) notwithstanding breach of the procedural obligation in Article 5(4) (see, for example, Kolanis v. United Kingdom, judgment of the ECtHR dated 21 June 2005), so an otherwise lawful detention under Article 78 of Geneva IV is not rendered unlawful by breach of the procedural requirements of that article. At most, he submitted, breach of the procedural requirements of Article 78 would mean that the claimant could rely on the procedural obligation of Article 5(4), on the basis that in those circumstances Article 5(4) could be said not to have been displaced by Article 78.

We prefer Mr Sales’s submissions on this aspect of the matter. If the substantive conditions for detention are met, as must be assumed for present purposes to be true in the case of the claimant, it would be very surprising if non-compliance, however insubstantial, with the procedural requirements of Article 78 had the automatic effect of rendering the detention unlawful. We see no reason in principle why an approach broadly similar to that under Article 5 ECHR, as exemplified in Kolanis v. United Kingdom, should not also apply in relation to Article 78, so that the detention itself may be lawful even if the detainee has been denied certain procedural rights. If there has been a failure to comply with the procedural requirements of Article 78, it may be that the claimant can still rely on the procedural obligation of Article 5(4); but that can get the claimant nowhere in these proceedings, since we have already held that the claimant cannot establish a breach of Article 5(4) in the present claim. The fact that the claimant may have a right of access to the court sufficient to satisfy Article 5(4) also reinforces our view that non-compliance with the procedural requirements of Article 78 should not be held to render the detention itself unlawful.

For all those reasons we reject the case advanced on the claimant’s behalf by reference to the procedural requirements of Article 78.

This part of the claimant’s case proceeds from the premise that, since the claimant is a British citizen, the defendant has the option of repatriating him to the United Kingdom, where, even if he was not charged with an offence, he could in principle be made subject to a control order under the Prevention of Terrorism Act 2005. Control orders under section 1 of the 2005 Act can impose obligations on an individual for purposes connected with protecting members of the public from a risk of terrorism; and, by section 15(1), the public includes the public in a country or territory other than the United Kingdom. It is submitted that, if the defendant is right about the factual evidence against the claimant, the conditions for the imposition of a control order would be satisfied, and that this would be an effective means of protecting against any risk to security posed by the claimant.

Mr Giffin deploys that line of argument in two ways. First, he submits that it cannot be necessary for imperative reasons of security to detain the claimant in Iraq if effective controls could be applied to him in the United Kingdom. Detention in Iraq, involving such an extreme restriction on the claimant’s rights, should be contemplated only if no alternative exists. The test for detention in Iraq is necessity, not some lesser threshold. The detention therefore fails to comply with one of the conditions of the authorisation conferred by UNSCR 1546, with the result that the resolution cannot be relied upon as displacing Article 5.

The defendant meets that argument in a number of ways. First, Mr Sales submits that there is no power to remove the claimant from Iraq. His removal is not authorised by the resolution and would be inconsistent with the United Kingdom’s obligations under the resolution. The resolution confers powers of internment in Iraq for the purpose of maintaining security in Iraq. Their use for the collateral purpose of transferring the claimant to the United Kingdom in order to subject him to the provisions of the 2005 Act would fall outside the scope of the authorisation. Yet the removal of the claimant to the United Kingdom could not be effected without the exercise of powers of internment. He could not simply be released in Iraq and allowed to make his own way out of the country. He would have to be taken from the Shaibah facility to the airport in custody as a detainee. It follows that his removal would inevitably involve the exercise of powers of internment for the impermissible purpose of securing his return to the United Kingdom.

We are inclined to accept Mr Sales’s submission. The relevant part of UNSCR 1546 is concerned with the operations of the multi-national force within Iraq, and the power of internment conferred by the resolution is directed towards the detention of persons in Iraq, not their removal from Iraq. It seems to us that the exercise of powers of detention as a means of securing removal from Iraq would fall outside the scope of the authorisation and would involve actions inconsistent with the resolution.

We are less impressed by a second argument advanced by Mr Sales, to the effect that the claimant could not be extradited from Iraq because he is an Iraqi national (as well as a British national) and paragraph 358 of the Iraqi Law on Criminal Proceedings of 1971 prevents extradition if the extradition request is made in relation to an Iraqi national. We doubt very much whether any question of extradition arises. The claimant has made clear that he would return voluntarily to the United Kingdom and is willing to co-operate to achieve that result. It is far from clear how his removal in those circumstances could constitute an extradition even if he were taken to the airport in custody as a detainee.

But quite apart from these questions of legal power to return the claimant, we are not persuaded that the existence of an alternative and less restrictive regime in the United Kingdom under the 2005 Act can be said to render it not necessary for imperative reasons of security to detain the claimant in Iraq. The assessment made in relation to the claimant is that his detention is necessary. That assessment has not been challenged in these proceedings. In our view it is impossible in those circumstances for this court to conclude that the claimant’s detention is not in fact necessary. Mr Giffin argues that insufficient consideration has been given to the alternative regime in the United Kingdom; but that is not enough to show that the detention is not necessary. As it seems to us, the necessity for the detention can only properly be assessed in the context of a detailed consideration of the factual basis for the detention.

We therefore conclude that this further attempt by the claimant to defeat the defendant’s reliance on UNSCR 1546 must be rejected.

Leaving aside Article 5, Mr Giffin had a final and separate argument that the defendant’s failure to return the claimant to the United Kingdom is unlawful in any event, on the basis that there is a power to return the claimant and the defendant has acted unreasonably in declining to exercise the power. We have already considered the question whether the power does exist. But even assuming there is a power, we are satisfied that this separate line of argument must fail. It arises on the assumption that the detention of the claimant in Iraq is itself lawful pursuant to UNSCR 1546: if the detention were unlawful, the separate argument would not be needed. If, however, it is lawful to detain the claimant in Iraq, it cannot possibly be said to be irrational for the defendant to detain him in Iraq, as provided for by the resolution, rather than to return him to the United Kingdom. In our view this alternative submission is hopeless.

For the reasons given in this judgment, we reject the case advanced on the claimant’s behalf in these proceedings that his continued detention in Iraq and the failure to return him to the United Kingdom are unlawful. The claim must therefore be dismissed.