Published: Wed, 07 Mar 2018
A and others v Secretary of State for the Home Department  UKHL 56 (Belmarsh Case)
Human Rights Act – Judicial Power – Compatibility – Rule of Law – Declaration of incompatibility – Derogation – Human Rights
The case concerned the indefinite detention of foreign prisoners in the United Kingdom prison ‘Belmarsh’. The prisoners were held without trial under section 23 of the Anti-Terrorism, Crime and Security Act 2001. This decision and the subsequent detentions were challenged at court in terms of their compatibility with the aims of the European Convention on Human Rights.
The original case was brought by 9 individuals who were threatened with deportation without trial on the basis that there was some evidence that the individuals posed a national security threat. The 9 challenged this deportation decision of the Special Immigration Appeals Commission. All 9 were later detained under the Anti-Terrorism, Crime and Security Act 2001 pending deportation. Section 4 of this act enabled the individuals to be held indefinitely, without trial or deportation.
The case is so important because it shows a direct challenge, in the courts, of the extent to which legislation confers powers to the executive in the way in which they deal with a presumed threat to national security. The judges had to weigh up considerations of the power conferred by such legislation, the limitation on such powers of the executive, and a balance of necessity to limit personal liberty in order to protect national security. This was all to be considered against the backdrop of the 9/11 attacks in America and the international ‘war on terror’.
The ruling in this case was a landmark decision. The House of Lords held that the provisions under which detainees were being held at Belmarsh prison (section 23) were incompatible with Article 5 of the European Convention of Human Rights – however the Home Secretary was not required to release the prisoners. The provision had the effect of discriminating between foreign nationals and nationals of the state. As a result of the Lords finding, they made a declaration of incompatibility under Section 4 of the Human Rights Act 1998.
“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. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.” 
“The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.” 
Lord Nicholls of Birkenhead
“The duty of the court is to check that legislation and ministerial decisions do not overlook the human rights of persons adversely effected.” 
The case decision is so ground-breaking because it shows a willingness of the judiciary to check the powers and exercise of the executive in matters concerning national security. It is important to note, however, that the Lords ruling and subsequent declaration of incompatibility did not render the acts of detention or application of section 23 invalid, nor did it bind the actions of the Home Secretary. As such the 9 individuals remained in detention and took their case to the European Court of Human rights, culminating in the 2009 appeals case A and others v UK Application No.3455/05.
This case has been cited in the following case:
A and others v UK Application No.3455/05.
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