A and Others v Secretary of State for the Home Department [2004] UKHL 56

Full Name of the Case: A and Others v Secretary of State for the Home Department

Citation: [2004] UKHL 56

Court: House of Lords (Appellate Committee)

Judges: Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe.

Bench Type: Appellate Committee of the House of Lords

Date of Judgment: 16 December 2004 

Parties Involved 

Appellants: A and Others

Respondent: Secretary of State for the Home Department

Facts of the Case

The UK Parliament enacted the Anti-terrorism, Crime and Security Act 2001 as a result of the 9/11 attacks, which raised global issues surrounding terrorism. Part 4 of the Act was created to allow the ‘indefinite detention without trial of foreign nationals suspected of terrorism who could not be deported’. The UK government, in the hopes of justifying this, deviated from Article 5 of the European Convention on Human Rights (right to liberty) under Article 15, which allows derogation in times of ‘public emergency threatening the life of the nation’. 

As a result of the act, nine men, who were identified only as A, B, C, D, E, F, G, H, and I (A and others), were arrested and detained in Belmarsh high-security under the belief that that they were a risk to national security. They were never put on trial and were unable to see the evidence used against them, on the basis that the information was discovered under secret intelligence. 

Issues 

The case raised several critical legal questions: 

1. Did any such ‘public emergency threatening the life of the nation’ exist to lawfully justify the UK’s derogation from its obligations under Article 5(1) of the European Convention on Human Rights (ECHR), as permitted by Article 15 ECHR? 

2. Were the measures of indefinite detention without trial taken by the government strictly necessary in order to meet the emergency of the situation, and thus proportionate to the threat? 
3. Were the provisions of the Anti-Terrorism, Crime and Security Act 2001, capable of constituting unlawful discrimination against foreign nationals, contrary to Article 14 of the European Convention on Human Rights (ECHR). 

Arguments of the Parties 

Appellants

The appellants argued that the government’s use of indefinite detention without trial was a violation of Article 5 of the European Convention on Human Rights (ECHR), which breached their right to liberty and security of person as a result. They contended that the government’s derogation under Article 15 was unlawful because the situation at hand did not amount to a ‘public emergency threatening the life of the nation’. The appellants emphasised their view that the government had not demonstrated the fact that other less intrusive, lawful alternatives had failed and instead enforced an extreme measure. They argued that the mechanisms that were already in place within ordinary criminal law and existing counter-terrorism measures could have been used instead of creating a new regime consisting of indefinite detention without trial. 

Their argument also focused on discrimination. The Anti-terrorism, Crime and Security Act 2001 applied only to foreign nationals, regardless of the fact that terrorism was not confined to non-citizens. British citizens suspected of terrorism under the act could not be detained under the same provisions that non-citizens would be, thus, creating a divide of justice. The appellants argued that this violated Article 14 of the European Convention on Human Rights (ECHR), which ‘prohibits discrimination in the enjoyment of the rights and freedoms set forth in the Convention’. They argued that by singling out foreign nationals, the legislation embedded itself within xenophobic and discriminatory assumptions, focusing mainly on immigrant communities, particularly Muslims, as key suspects. 

The appellants stressed the importance of the right to a fair trial. Indefinite detention without trial removed all aspects of fairness, which is embedded deep within the fundamental principles of justice. They argued that a fair government must always act within the bounds of legality and proportionality. 

Respondent

The Secretary of State for the Home Department argued that the UK faced a ‘public emergency threatening the life of the nation’ following the 9/11 attacks, thus satisfying the meaning within Article 15 ECHR. They argued that as a result, the threat of international terrorism was unpredictable and potentially catastrophic. The government argued that in such circumstances, it was just to use extraordinary measures to protect national security and the lives of their citizens. 

The government argued that indefinite detention without trial was necessary because deportation was essentially impossible. Many of the detainees were at a real risk of torture or ill-harm if returned to their home countries, meaning deportation in these situations would violate Article 3 of the European Convention on Human Rights (ECHR), ‘prohibition of torture’. As deportation was not an option, the only other viable means was detention in order to neutralise any threats posed by suspected terrorists. The government emphasised that the detainees were not ordinary criminal suspects but individuals who were believed to be linked to present international terrorist networks, thus requiring a more extreme approach. 

The government further argued that any decisions about national security and public emergencies belonged to Parliament and the executive to review, not the courts. They maintained that the courts could not assess the gravity of these threats and the necessity of the measures required better than Parliament.

Finally, the government rejected any claims of discrimination, as it argued that distinction between citizens and non-citizens was rational and justified. Citizens could not be deported, whereas foreign nationals could. They argued that the detention regime was vital in addressing the specific problem of non-deportable foreign suspects. Therefore, in the government’s eyes this was a legitimate differentiation, needed to ensure the safety of all citizens, as opposed to unlawful discrimination. 

Judgment 

The House of Lords delivered a decisive ruling in favour of the appellants. By a majority, it was declared that Section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the Human Rights Act 1998. This was held because the measures adopted from Article 5 of the European Convention on Human Rights (ECHR) was deemed as unlawful due to the lack of proportionality and strict requirements present within the situation at hand, as demanded by Article 15. The detention regime was deemed to be discriminatory and at fault of targeting only foreign nationals despite the fact that UK nationals could also commit terrorist acts. 

Lord Bingham emphasised that proportionality ‘is the cornerstone of lawful derogation’ and in this, the government had failed to demonstrate why present existing measures were inadequate. Lord Hoffman went further declaring that ‘the real threat to life of the nation…comes not from terrorism, but from laws such as these’, emphasising the danger of sacrificing liberty in the name of security. Lord Hope argued for the irrationality of singling out foreign nationals and stressed that such discrimination was capable of undermining the universality of human rights. Collectively, the Lords rejected the government’s plea for judicial deference. 

Legal Reasoning/ Ratio Decidendi 

The reasoning behind the Lords’ decisions rested on several key pillars. Proportionality was a crucial aspect of the judgment, arguing that the detention regime used within the case was too disproportionate. It was seen as too extreme and not necessary within the context of the situation. The matter at hand did not constitute an issue of ‘public emergency threatening the life of the nation’. Discrimination was another key issue. The emphasis of targeting only foreign nationals under the legislation at hand was unjustified, making the measure irrational and discriminatory, regardless of any attempted justifications. There is also the presence of the courts responsibility of upholding fundamental rights through the rule of law, regardless of any emergencies. 

In reaching their decision, the House of Lords relied heavily on any present jurisprudence within European Court of Human Rights (ECtHR) cases, especially within Lawless v Ireland (1961). The case defined the scope of ‘public emergency’ under Article 15 of the European Convention on Human Rights (ECHR). The Courts accepted that the IRA’s campaign of violence constituted a ‘public emergency threatening the life of the nation’. The Lords also drew on subsequent jurisdictions, including Brannigan and McBride v United Kingdom (1993), where the Court upheld extended detention without trial in Northern Ireland but emphasised proportionality and necessity if used. 

Conclusion

In conclusion, the Belmarsh case remains a landmark decision rooted within UK constitutional law and human rights jurisprudence. The case illustrates the tension between upholding liberty, protecting security and the dangers of the use discriminatory legislation. Questions regarding the scope of judicial review and how far it extends within matters of national security are also raised. The Lords’ insistence on proportionality and non-discrimination highlights the commitment to upholding universal human rights without giving into any temptations being made in order to sacrifice these key morals in the name of security. This is further shown through the direct action to repeal Part 4 of the 2001 Act and its replacement within the Prevention of Terrorism Act 2005. The courts could now no longer rely on indefinite detention of foreign nationals, and were thus replaced by ‘control orders’, thus, reducing the extremity of treatment towards non-citizens. 

Bibliography 

Table of Cases 

A and Others v Secretary of State for the Home Department [2004] UKHL 56

Brannigan and McBride v United Kingdom (1993) 17 EHRR 539.

Lawless v Ireland (No 3) (1961) 1 EHRR 15. 

Table of Legislation

Anti-terrorism, Crime and Security Act 2001

Human Rights Act 1998 

Prevention of Terrorism Act 2005

Treaties and International Instruments 

European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953).