74
A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT
domestic level. As the House of Lords held, the question of proportionality
is ultimately a judicial decision, particularly in a case such as the present
where the applicants were deprived of their fundamental right to liberty over
a long period of time. In any event, having regard to the careful way in
which the House of Lords approached the issues, it cannot be said that
inadequate weight was given to the views of the executive or of Parliament.
185. The Government also submitted that the House of Lords erred in
examining the legislation in the abstract rather than considering the
applicants’ concrete cases. However, in the Court’s view, the approach
under Article 15 is necessarily focused on the general situation pertaining in
the country concerned, in the sense that the court – whether national or
international – is required to examine the measures that have been adopted
in derogation of the Convention rights in question and to weigh them
against the nature of the threat to the nation posed by the emergency.
Where, as here, the measures are found to be disproportionate to that threat
and to be discriminatory in their effect, there is no need to go further and
examine their application in the concrete case of each applicant.
186. The Government’s third ground of challenge to the House of Lords’
decision was directed principally at the approach taken towards the
comparison between non-national and national suspected terrorists. The
Court, however, considers that the House of Lords was correct in holding
that the impugned powers were not to be seen as immigration measures,
where a distinction between nationals and non-nationals would be
legitimate, but instead as concerned with national security. Part 4 of the
2001 Act was designed to avert a real and imminent threat of terrorist attack
which, on the evidence, was posed by both nationals and non-nationals. The
choice by the Government and Parliament of an immigration measure to
address what was essentially a security issue had the result of failing
adequately to address the problem, while imposing a disproportionate and
discriminatory burden of indefinite detention on one group of suspected
terrorists. As the House of Lords found, there was no significant difference
in the potential adverse impact of detention without charge on a national or
on a non-national who in practice could not leave the country because of
fear of torture abroad.
187. Finally, the Government advanced two arguments which the
applicants claimed had not been relied on before the national courts.
Certainly, there does not appear to be any reference to them in the national
courts’ judgments or in the open material which has been put before the
Court. In these circumstances, even assuming that the principle of
subsidiarity does not prevent the Court from examining new grounds, it
would require persuasive evidence in support of them.
188. The first of the allegedly new arguments was that it was legitimate
for the State, in confining the measures to non-nationals, to take into
account the sensitivities of the British Muslim population in order to reduce
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