On Human Rights Day (10^th of December), Aidan Flynn, Senior Lecturer in Law, recollects the famous ‘Belmarsh case’ on the twentieth anniversary of the detentions that led to the case.

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 19^th 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 2^nd of October 2000.

The first session of this year’s LLB Book Club was held on the afternoon of Wednesday the 6^th of October. 

The book club is part of a range of activities the Law department are implementing for our students outside of teaching.

Students are reading and talking about Fake Law: The Truth About Justice in an Age of Lies, which was published in 2020. 

They are enjoying the opportunity to converse in a very convivial setting about the range of issues that the author explores, issues that deserve the attention of not just law students but everyone.

G7 Speakers recently met face-to-face at their annual conference which was held in Chorley in Lancashire. Aidan Flynn, Senior Lecturer in Law, reflects on the role of Speaker of the House of Commons.

The G7 Speakers’ Conference took place in Lancashire from the 17^th to the 19^th of September.  It was hosted by Sir Lindsay Hoyle MP, the Speaker of the House of Commons, and the theme was ‘Secure versus Open Parliaments?’  Sir Lindsay welcomed Speakers and Presiding Officers representing Canada, France, Germany, Italy, Japan, the USA and the European Parliament. 

The Speaker of the House of Commons chairs debates in the Commons Chamber.  The holder of this office is an MP who is elected to be Speaker by other Members of Parliament.  Baroness Boothroyd, the first female speaker (1992 to 2000), referred to the office as “the top insider’s job in the Mother of Parliaments”

Sir Lindsay’s immediate predecessor has stated that the role involves “a duty to stand up for MPs individually, to champion Parliament institutionally and to try to make Parliament look more like the country we are charged to represent”  In the words of other former speakers, the holder of the office “should be the servant of the House and not of the executive” and must “exercise a firm hand and throw out the people who break the rules.”

Richard Onslow, speaker from 1527/8 to 1571, is buried in Shrewsbury, the county town of Shropshire.  The Onslow Monument is inside Shrewsbury Abbey, a Parish Church in the Church of England Diocese of Lichfield.

The 30th June is the International Day of Parlimentarism. Established by the United Nations and celebrated on this day every year, the day ‘is a time to review the progress that parliaments have made in achieving some key goals to be more representative and move with the times, including carrying out self-assessments, working to include more women and young MPs, and adapting to new technologies (un.org).’ In relation to this, Dr John McGarry, Senior Law Lecturer, discusses the UK Parliament.

On International Day of Parliamentarism it is appropriate to recognise the central and preeminent role that the UK Parliament plays in the legal and political landscape of the country. Parliament comprises three bodies: the House of Commons, the House of Lords and the Monarch. It is sometimes, more formally known as the Queen in Parliament. The House of Commons is made up of 650 directly elected MPs. The House of Lords consists of 700-800 peers which include appointed Life Peers, up to 92 hereditary peers and up to 26 Bishops of the Church of England.

Parliament has a number of roles. First and foremost, it is the UK’s primary legislature which means that it legislates, it creates law. Its powers here are unusual (though not unique) in that it is sovereign which means, in this context, that it may make any law whatsoever. That is, there are no restraints on the legislative power of Parliament. If an Act of Parliament is enacted in the correct way then, regardless of how improper, immoral or unconstitutional it is considered to be, the courts cannot overrule it or strike it out. As I say, this is unusual. In many countries, the law-making competence of the legislature is constrained by the constitution. For instance, in the US, an Act of Congress (roughly the equivalent of an Act of Parliament) may be struck down by the courts if it breaches the Constitution.

Another important role of Parliament is holding the Government to account – obliging the Government to explain and defend its actions and respond appropriately to any criticisms. It is worth emphasising here that Parliament and the Government are two distinct bodies exercising distinct functions. This fact is sometimes lost because it is a rule of the UK constitution that all Ministers – the main political actors of Government – must be a member of either the House of Commons or the House of Lords. Moreover, the Prime Minister must be a member of the House of Commons (rather than the House of Lords) and is the person who commands – and must maintain – the majority of support in the House of Commons.

This requirement – that the Government is formed from Parliament and must maintain the confidence (the majority of support) of the Commons – is why the UK system of government is parliamentary in nature. It may be contrasted with a presidential system where the head of government is directly elected by voters.

The importance of Parliament’s role in holding the Government to account is demonstrated by it being one of the bases of the Supreme Court’s decision in 2019 that the Government’s attempt to prorogue Parliament for five weeks was unlawful. The Court held that parliamentary accountability – Parliament holding the Government to account –is a fundamental constitutional principle and that this principle would be frustrated by such a lengthy prorogation. So, unless there was a reasonable justification for the five week prorogation, it was unlawful.

The accountability of Government to Parliament occurs in many ways. Undoubtedly, the most well known is Prime Minister’s Question time when the Prime Minister answers questions from MPs about the Government’s actions and decisions. This accountability is facilitated by a number of non-legal rules governing how members of the Government ought to behave. One of the most important is that Ministers must be honest with Parliament. The Ministerial Code – which sets basic standards of ministerial behaviour – states: ‘It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity’. Without this obligation of honesty, Parliament would be seriously hampered in its ability to hold the Government to account.

This, though, raises questions which I will state but not answer. As I have indicated, many of the most important obligations under the UK constitution are non-legal in nature. As such, they rely on those in power knowing, and adhering to, the rules of the game. This is sometimes known as the ‘Good Chaps’ theory of Government – that those in power will act like good chaps (or chapesses) and comply with the non-legal rules. Yet, what happens when those in power no longer feel obliged to comply with these rules? Can Parliament exercise its function of holding the Government to account if the Government no longer feels obliged to, for instance, give accurate and truthful information to Parliament? As I say, this is not a question which I will attempt to answer here. It is, however, an important question and it is one that my colleague Donna Graham, Staffordshire University lecturer, is currently looking at as part of her PhD.

Keep up to date with the latest from Staffordshire University’s Law School Newsletter (academic year 2020-2021).

Law Newsletter – December 2020

The first newsletter of the academic year was introduced by Paul Allen, Head of Law, and contained information on student well-being over the Christmas break.

Law Newsletter – March 2021

The spring newsletter included an interview with the Dean, Dr Helen Poole, and exciting news about students from APIIT Law School (one of our partners) becoming the first Sr Lankan team to compete in the ICC Paris Commercial Mediation Competition.

Law Newsletter – June 2021

The final newsletter of the academic year shares exciting news from a few of our students, as well as advice and information for getting work experience

Are you a student at Staffordshire University and considering taking SULAC (Staffordshire University Legal Advice Clinic) as a module during your final year? Emma, a final year Law student shares how choosing the SULAC module has helped develop her confidence and enhance her skills.

I have just completed my final year on the LLB Law at Staffordshire University. During my final year, I undertook SULAC as a module. At the [start] I was very quiet and shy.  

If you are considering a career in practice, whether that be a solicitor or barrister, I would highly recommend SULAC as a module.  

As you already know, in practice you need to communicate with clients, other solicitors, colleagues, judges, barristers and – depending on your field of preference – the jury. You also need to carry out research and draft legal letters. 

During your time in the clinic, you are required to: 

• Hold interviews with clients,
• Interact and engage with other students, Tracey, clients and other solicitors and partner organisations. I had an amazing opportunity to work with Woman’s Aid and Lewis Rogers Solicitors.
• Type up a three day letter and letter of advice
• Research the area of law relevant to the matter. 

As you can see, you gain and expand upon the skills you need to work in the legal sector, all of which can be mentioned on your CV to make you stand out.  

As previously mentioned, when I first started SULAC I was shy, I hated public speaking and I had no self-[appreciation].  Five or six weeks of clinic [changed that]. Once I put my suit on I felt on top of the world; I spoke publicly, I carried out conflict of interest searches and research tasks confidently and, within a short period of time, I was speaking out in classes. I didn’t fear expressing my opinion or engaging in debates.  

I have an awful lot to thank the clinic and Tracey for. Tracey is so supportive and amazing to work with. It is scary to think that, if I hadn’t participated in clinic, I would have walked out with a degree but no confidence. The clinic will help you in your studies [as well]! I took Family Law as an option module, which is one of the areas of law that clinic helps with. There were times where I had a case for clinic regarding a family law matter and soon afterwards I had a lecture that matched my client’s request.  

As well as working with Lewis Rogers and Woman’s Aid, SULAC gave me [an experience] that I will never forget: the awards evening with the chair of Law Works and the Attorney-General.   

[In] your final year, what you do really does matter, so just remember: 

• Stay calm
• Deep breaths
• The public are turning to you for help, advice and support. People are already looking up to you
• What you do counts, you are helping the public gain access to legal advice and justice. 
• Be yourself.
• Congratulate yourself!
• Reflect on yourself – I frequently compare how I was in the first year to final year. You will see a huge difference and, believe me, that never goes unnoticed by staff.  
• Do what feels right for you. 

Finally, I just wanted to say to enjoy your final year: relax (but study) and do what is right for you and your future. A huge well done from me for making it this far.  

Good luck to Emma who is returning in September to complete the LLM in Legal Practice.