Following the Al-Qaeda terrorist attacks in the USA in September 2001, the UK Parliament swiftly passed the Anti-terrorism, Crime and Security Act 2001. In exercise of his power under section 14 of the Human Rights Act 1998, David Blunkett, the then Home Secretary, made the Human Rights Act 1998 (Designated Derogation) Order 2001. The derogation related to article 5(1) of the European Convention on Human Rights. Article 5 of the Convention is concerned with the “right to liberty and security of person.”
The appellants in the ‘Belmarsh case’ were certified by the Home Secretary under section 21 of the 2001 Act. This led to their detention under section 23 of the Act. Eight of the nine appellants were detained on the 19th of December 2001. They were held in high security conditions at Belmarsh prison. They challenged the lawfulness of their detention, and the case reached the Appellate Committee of the House of Lords, which was the highest court in the land until replaced in 2009 by the Supreme Court of the UK.
Giving the leading judgment, Lord Bingham described the circumstances in which the appellants found themselves in December 2001, “the appellants share certain common characteristics which are central to their appeals. All are foreign (non-UK) nationals. None has been the subject of any criminal charge. In none of their cases is a criminal trial in prospect”
In the Appellate Committee, the case was heard by a panel of nine Law Lords rather than the usual panel size of five. It had to decide two main issues. Firstly, were the conditions for derogating from Article 5 met. Secondly, if they were met and the Derogation Order was lawful, were the provisions of the 2001 Act relating to powers of indefinite executive detention without trial “strictly required by the exigencies of the situation.” These words are from Article 15 (‘Derogation in time of emergency’) of the Convention, paragraph one of which reads as follows “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”
On the first issue the Appellate Committee decided that the question involved a political judgment with which it should not interfere. Lord Bingham said “I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre-eminently political judgment.” However, Lord Hoffmann dissented, taking the view that the events of ‘9/11’ did not constitute a public emergency threatening the life of the British nation. He commented that “whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda.”
On the second issue, the decision of the Appellate Committee has been summarised by Lord Bingham in his well-known book ‘The Rule of Law.’ The provisions of the 2001 Act were “incompatible with the UK’s obligations under the Convention ………… the measure did not rationally address the threat to security, was not a proportionate response, was not strictly required by the exigencies of the situation and unjustifiably discriminated against foreign nationals on grounds of their nationality.” The 2001 Act was discriminatory because it differentiated between non-UK citizens and UK citizens. UK citizens could not be detained in the same way under the terms of the Act. This was one of the strong arguments advanced by the appellants which led the Appellate Committee to reverse the decision of the Court of Appeal. The Committee issued a declaration of incompatibility under section 4 of the Human Rights Act. Section 23 of the 2001 Act was incompatible with Articles 5 and 14 (‘Prohibition of discrimination’) of the European Convention.
In his recently published book, Sir Jack Beatson identifies the ‘Belmarsh case’ and Ghaidan, from the same year, as examples of the principle of non-discrimination. This principle is a requirement of the European Convention on Human Rights. Most provisions of the Convention were given effect in UK law by the Human Rights Act 1998 which came into force on the 2nd of October 2000.