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A v Secretary of State for the Home Department

January 01, 1970

A and others v Secretary of State for the Home Department [2004] UKHL 56 (also known as the Belmarsh 9 case) is a UK human rights case heard before the House of Lords. It held that the indefinite detention of foreign prisoners in Belmarsh without trial under section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the European Convention on Human Rights.

A v SS for Home Department
CourtHouse of Lords
Full case nameA and others v Secretary of State for the Home Department; X and another v Secretary of State for the Home Department
Citation(s)[2004] UKHL 56
Keywords
Indefinite detention, right to trial

The case should not be confused with the case A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, which relates to the use of evidence obtained by torture in British courts.

Facts edit

The case began with nine men who challenged a decision of the Special Immigration Appeals Commission to eject them from the country on the basis that there was evidence that they threatened national security.

Of the nine appellants, all except two were detained in December 2001; the others were detained in February and April 2002 respectively. All were detained under the Anti-terrorism, Crime and Security Act 2001.[1] Part 4 of the Act provided for their indefinite detention without trial and deportation. However, the power was only applied to non-British nationals. Under section 25 of this Act, they had the right to appeal to the Special Immigration Appeals Commission against their detention.[2]

Judgment edit

The House of Lords held by a majority (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Carswell) that, whilst their detention was lawful under the ATCSA 2001, section 23 was incompatible with the articles of the European Convention on Human Rights. As a consequence, the House of Lords made a declaration of incompatibility under section 4 of the Human Rights Act 1998, and allowed the appeals.

Lord Bingham said in relation to the application of Art.15 ECHR and whether there was a public emergency threatening the life of the nation:

  1. The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions.

Lord Hoffmann dissented in strong terms, but agreed that the appeals should be allowed. Whereas the majority argued that the 2001 Act was contrary to the ECHR because it discriminated between nationals and foreign nationals (Art.14 ECHR), Lord Hoffmann stated that the whole scheme was incompatible with the United Kingdom's constitution, and its commitment to human rights. He dismissed the government's argument that under the ECHR and HRA it was possible to derogate from the ECHR's general provisions. His view was that the test – that there was a "threat to the life of the nation" – was not fulfilled.

  1. This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.
  2. For these reasons I think that the Special Immigration Appeals Commission made an error of law and that the appeal ought to be allowed. Others of your Lordships who are also in favour of allowing the appeal would do so, not because there is no emergency threatening the life of the nation, but on the ground that a power of detention confined to foreigners is irrational and discriminatory. I would prefer not to express a view on this point. I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

Lord Walker of Gestingthorpe also dissented, but would have dismissed the appeal. In his opinion, the discrimination was justified due to "sound, rational grounds for different treatment". While the indefinite detention provisions were a "grave concern", they were "necessary" and accompanied by "several important safeguards against oppression". He therefore held that Part 4 of the 2001 Act was "proportionate, rational and non-discriminatory".

Significance edit

Parliament decided to replace Part 4 of ATCSA 2001 with the Prevention of Terrorism Act 2005.[1] This allows anyone of any nationality to be subjected to a control order.

This case was eventually appealed to the European Court of Human Rights. That case was also decided in favour of the applicants.

Notes edit

  1. ^ a b "A and others v Secretary of State for the Home Department: Antiterrorism". Retrieved 22 January 2020.
  2. ^ Department, Law Lords. "House of Lords - A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) (2004)A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals)". publications.parliament.uk.
  • A v Secretary of State for the Home Department [2004] UKHL 56, on whether persons can be detained indefinitely without reasons being given for that detention.

External links edit

  • full text of decision

January 01, 1970
secretary, state, home, department, others, secretary, state, home, department, 2004, ukhl, also, known, belmarsh, case, human, rights, case, heard, before, house, lords, held, that, indefinite, detention, foreign, prisoners, belmarsh, without, trial, under, s. A and others v Secretary of State for the Home Department 2004 UKHL 56 also known as the Belmarsh 9 case is a UK human rights case heard before the House of Lords It held that the indefinite detention of foreign prisoners in Belmarsh without trial under section 23 of the Anti terrorism Crime and Security Act 2001 was incompatible with the European Convention on Human Rights A v SS for Home DepartmentCourtHouse of LordsFull case nameA and others v Secretary of State for the Home Department X and another v Secretary of State for the Home DepartmentCitation s 2004 UKHL 56KeywordsIndefinite detention right to trial The case should not be confused with the case A v Secretary of State for the Home Department No 2 2005 UKHL 71 which relates to the use of evidence obtained by torture in British courts Contents 1 Facts 2 Judgment 3 Significance 4 Notes 5 External linksFacts editThe case began with nine men who challenged a decision of the Special Immigration Appeals Commission to eject them from the country on the basis that there was evidence that they threatened national security Of the nine appellants all except two were detained in December 2001 the others were detained in February and April 2002 respectively All were detained under the Anti terrorism Crime and Security Act 2001 1 Part 4 of the Act provided for their indefinite detention without trial and deportation However the power was only applied to non British nationals Under section 25 of this Act they had the right to appeal to the Special Immigration Appeals Commission against their detention 2 Judgment editThe House of Lords held by a majority Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Hope of Craighead Lord Scott of Foscote Lord Rodger of Earlsferry Baroness Hale of Richmond and Lord Carswell that whilst their detention was lawful under the ATCSA 2001 section 23 was incompatible with the articles of the European Convention on Human Rights As a consequence the House of Lords made a declaration of incompatibility under section 4 of the Human Rights Act 1998 and allowed the appeals Lord Bingham said in relation to the application of Art 15 ECHR and whether there was a public emergency threatening the life of the nation The more purely political in a broad or narrow sense a question is the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision The smaller therefore will be the potential role of the court It is the function of political and not judicial bodies to resolve political questions Lord Hoffmann dissented in strong terms but agreed that the appeals should be allowed Whereas the majority argued that the 2001 Act was contrary to the ECHR because it discriminated between nationals and foreign nationals Art 14 ECHR Lord Hoffmann stated that the whole scheme was incompatible with the United Kingdom s constitution and its commitment to human rights He dismissed the government s argument that under the ECHR and HRA it was possible to derogate from the ECHR s general provisions His view was that the test that there was a threat to the life of the nation was not fulfilled This is a nation which has been tested in adversity which has survived physical destruction and catastrophic loss of life I do not underestimate the ability of fanatical groups of terrorists to kill and destroy but they do not threaten the life of the nation Whether we would survive Hitler hung in the balance but there is no doubt that we shall survive Al Qaeda The Spanish people have not said that what happened in Madrid hideous crime as it was threatened the life of their nation Their legendary pride would not allow it Terrorist violence serious as it is does not threaten our institutions of government or our existence as a civil community For these reasons I think that the Special Immigration Appeals Commission made an error of law and that the appeal ought to be allowed Others of your Lordships who are also in favour of allowing the appeal would do so not because there is no emergency threatening the life of the nation but on the ground that a power of detention confined to foreigners is irrational and discriminatory I would prefer not to express a view on this point I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well In my opinion such a power in any form is not compatible with our constitution The real threat to the life of the nation in the sense of a people living in accordance with its traditional laws and political values comes not from terrorism but from laws such as these That is the true measure of what terrorism may achieve It is for Parliament to decide whether to give the terrorists such a victory Lord Walker of Gestingthorpe also dissented but would have dismissed the appeal In his opinion the discrimination was justified due to sound rational grounds for different treatment While the indefinite detention provisions were a grave concern they were necessary and accompanied by several important safeguards against oppression He therefore held that Part 4 of the 2001 Act was proportionate rational and non discriminatory Significance editParliament decided to replace Part 4 of ATCSA 2001 with the Prevention of Terrorism Act 2005 1 This allows anyone of any nationality to be subjected to a control order This case was eventually appealed to the European Court of Human Rights That case was also decided in favour of the applicants Notes edit a b A and others v Secretary of State for the Home Department Antiterrorism Retrieved 22 January 2020 Department Law Lords House of Lords A FC and others FC Appellants v Secretary of State for the Home Department Respondent 2004 A and others Appellants FC and others v Secretary of State for the Home Department Respondent Conjoined Appeals publications parliament uk A v Secretary of State for the Home Department 2004 UKHL 56 on whether persons can be detained indefinitely without reasons being given for that detention External links editfull text of decision Retrieved from https en wikipedia org w index php title A v Secretary of State for the Home Department amp oldid 1219272322, wikipedia, wiki, book, books, library,

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