The case was initially head before the Special Immigration Appeals Commission (SIAC) where the defendants challenged the legality of the Anti-Terrorism, Crime and Security Act 2001 (ATCSA) and the Human Rights Act 1998 (Designated Derogation) Order 2001. The Belmarsh Case involved court proceedings at several levels of the court system. It included The SIAC, Court of Appeal, the European Court of Human Rights and the Appellate Committee of the House of Lords. The Belmarsh case was decided before 2004 that is, prior to the judicial functions of the House of Lords was transferred to, now, the United Kingdom Supreme Court.
A number of foreign nationals initiated the legal proceeding who were held in Belmarsh prison for an indefinite period on the ground that they were detected to have links with international terrorists. Nevertheless, they were not even charged with any relevant criminal offence, instead, they were sentenced imprisonment under special powers conferred upon the government by Crime and Security Act 2001 and Anti-terrorism that was enacted after the incident of 9/11/2001 in the USA. Part 4 of the Anti-terrorism, Crime and security Act 2001 empowered government to detain non-nationals if it reasonably believes that they posed a threat to the national security and cannot be deported for practical and safety reasons.
The nine appellants who were detained under the 2001 Act challenged the legality of the detention by claiming that such detention was inconsistent with the ECHR. They claimed that the government did not fulfill the statutory basis for derogation under Article 15 of the statute. They further claimed that even if they were statutorily entitled to be derogated, the legal provisions were not only incompatible with the remaining Articles and international law but were also ineffective to justify such detention.
The main legal principles that were to be decided in this case were (1) was there an existence of state of emergency (2) if such an emergency situation existed, were proper measures taken to deal with the situation (3) were such measures applied in a non-discriminatory fashion. The case directly challenged the courts with respect to the extent to which legislation confers powers upon the executive to deal with any situation that poses a threat to the national security. The judges had to weigh up the considerations of the power that has been conferred by such legislation, the limitation of the executive to use such power and the balance of necessity to restrict the personal liberty for safeguarding national security.
The specific rules and provisions that were in issue in this case include the following provisions of Convention for the Protection of Human Rights and Fundamental freedoms 1950, Council of Europe:
It further includes provisions of the International Covenant on Civil and Political Rights 1966, UN General Assembly:
The case also includes issue related to detention stipulated under section 23(1) of the Anti-Terrorism, Crime and Security Act 2001, UK.
Judgment (Conclusion)
The House of Lords held that the legal provisions (section 23) under which the claimants were detained at Belmarsh prison were not compatible with Article 5 of the European Convention of Human Rights. Such statutory provisions had a discriminating impact on the nationals and foreign nationals of the state. The Lords held that the declaration made was incompatible under section 4 of the Human Rights Act 1998.
The vital legal provisions applicable to this case include Article 5(1) (f) ECHR that states that no person shall be deprived of his liberty except when the detention is legal. Further, such arrest or detention should be legal for which such person shall be deported from the country. Such a person shall be subjected to detention only during the period of his deportation process. Derogation from the provision is permissible although during war or other public emergency that poses a threat to the national security under Article ECHR. However, it is permissible only if the Secretary General of the Council of Europe is informed about the measures undertaken and the reasons for undertaking such measures.
The Derogation Order 2001, Human Rights Act 1998 considers that if foreign nations present in UK are suspected of being involved in the preparation, commission or provocation of conduct that amounts to international terrorism, it shall amount to a threat to the national security of the United Kingdom. According to Lord Bingham, where the Court had ruled that the phrase ‘other public emergency threatening the life of the nation’ signifies an exceptional situation of emergency or crisis that affects the entire population and poses a threat to the organized life of the society which forms the state as stipulated under Para 8 of the ECHR decision.
He further held that such threat should be imminent and temporal. Initially, it is up to the national government to decide whether such emergency state exists, though there is a scope of judicial review as well. However, in case the issue involved is more political and less legal in nature, the scope of judicial review shall reduce. Alternatively, in case any issue has greater legal content, it expands the role of the courts to deal with such issue because the Constitution of the country and the sovereign power conferred upon the Parliament stipulates that it is the function of a court to resolve any legal issue and not the political bodies.
Lord Bingham further asserted that the government could not undertake any measure to deal with public emergency; the measure must be proportional in nature. While determining such proportionality of the detained defendants, the House of Lords had taken into consideration of the fact that foreigners who were certified and detained are permitted to leave the country. Further, while deciding whether there was a state of emergency that was threatening the security of the nation, eight of the nine judges in the House of Lords acknowledged that there as a state of emergency.
However, they had to determine whether the measures undertaken to combat with the state of emergency were justifiable. Majority of the judges in the House of Lords clearly refused to accept that the measures undertaken to respond to the state of emergency was not necessary. The reason being Opinion 1/2002 of the European Commissioner for Human Rights, the review of the 2001 Act by the Newton Committee and the SIAC’s failure establishes that the measures were illogical and disproportional. The House of Lords held that the foreign terrorist suspects may leave voluntarily if they can leave but if they cannot leave voluntarily due to the risk of persecution in their own country, only then UK can detain them for an indefinite period.
In regards to the argument regarding distinct treatment towards the foreign terrorist suspects, the House of Lords held that Article 14 of ECHR prohibits discrimination on the grounds of nationality and the UK nationals were in the same situation as the foreign nationals. Therefore, a decision to detain one group of suspected international terrorist based on immigration or nationality status and not another is discriminatory and is unjustified.
The reasons provided by the House of lords demonstrates a connection between law and morality and that merits of positive law are assessed on the basis of its compatibility with moral principles. The decision signifies the fact that legal authority exists where it ensures the welfare of the community. As is perceived from the case, laws were misconstrued, as the human rights law was inconsistent with the natural law. The inconsistency between the 2001 Act and the human rights obligations required the need for judicial review to determine the use of power. According to Lord Hoffman, he considered liberty as a fundamental British right, hence, the indefinite detention without lawful ground was incompatible with the right to liberty.
The decision of this case has led the Parliament to replace the challenged statute Anti- Terrorism, Crime and Security Act 2001 with the Prevention of Terrorism Act 2005 that permits SIAC to make control order.
The decision is significant as it interferes with the equality and liberty and illegally discriminated against the foreigners who were thought to be terror suspects and were locked up without any charge or trial. The judgment does not mandate the government to release the detainees immediately but under the Human Rights Act, the government must undertake measures to resolve the situation. The legislations enacted must aim at ensuring welfare of the community and the powers vested in authorities shall be used proportionately and logically.
Reference List
A v Secretary of State for the Home Department [2004] UKHL 56 First Belmarsh case, [2005] 2 AC 68
Anti-Terrorism, Crime. “Security Act 2001.” The Parliament of the United Kingdom, London (2013).
Buergenthal, Thomas, et al. International human rights in a nutshell. West Academic, 2017.
Crime, Anti-Terrorism. “Security Act 2001.” Pt. IV (2013).
Donnelly, Jack. Universal human rights in theory and practice. Cornell University Press, 2013.
Freeman, Michael. Human rights. John Wiley & Sons, 2017.
Grabenwarter, Christoph. “European Convention on Human Rights.” European Convention on Human Rights. Nomos Verlagsgesellschaft mbH & Co. KG, 2014.
Greene, Alan. “The UK Government’s Proposed ‘Presumption to Derogate’from the ECHR: Submission to the Joint Committee on Human Rights.” (2017).
Harris, David, et al. Law of the European Convention on Human Rights. Oxford University Press, 2014.
Ip, Eric C. “The judicial review of legislation in the United Kingdom: a public choice analysis.” European Journal of Law and Economics 37.2 (2014): 221-247.
Rainey, Bernadette, Elizabeth Wicks, and Clare Ovey. The European Convention on human rights. Oxford University Press (UK), 2014.
Shelton, Dinah. Remedies in international human rights law. Oxford University Press, USA, 2015.
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