A v Secretary of State for the Home Department [2004] UKHL 56

Facts

• Following the 9/11 terrorist attacks, the UK Parliament enacted the Anti-Terrorism, Crime and Security Act 2001.
• Section 23 of this Act permitted the indefinite detention, without trial, of foreign nationals suspected of terrorism who could not be deported, primarily due to risks of mistreatment in their home countries.
• Nine foreign nationals were detained under this regime after being threatened with deportation on grounds of national security.
• The detainees challenged their detention, arguing that it contravened Article 5 (right to liberty and security) and Article 6 (right to a fair hearing) of the European Convention on Human Rights (ECHR).
• The case was brought before the House of Lords, which at the time was the UK’s highest court.

Issues

1. Whether the indefinite detention of non-deportable foreign nationals without trial under section 23 of the Anti-Terrorism, Crime and Security Act 2001 was compatible with Article 5 of the ECHR.
2. Whether the discrimination between foreign nationals and UK citizens under section 23 was lawful.
3. What powers the court held under the Human Rights Act 1998 (HRA) to address incompatibility between primary legislation and Convention rights.
4. Whether the courts should issue a declaration of incompatibility under the HRA when interpretation in line with Convention rights was not possible.

Decision

• The House of Lords held that section 23 of the Anti-Terrorism, Crime and Security Act 2001 was incompatible with Article 5 of the ECHR.
• The provision was found discriminatory, as it applied only to foreign nationals and not to UK citizens suspected of terrorism.
• The court determined that interpreting section 23 in a manner consistent with Convention rights under section 3 of the HRA was not possible.
• The House of Lords issued a declaration of incompatibility under section 4 of the HRA, indicating that section 23 breached ECHR rights, but did not invalidate the law.
• The decision prompted Parliament to replace the indefinite detention regime with new legislation introducing control orders.

Legal Principles

• The courts, while respecting Parliament’s legislative supremacy, have a duty under the HRA to ensure legislation complies with ECHR standards.
• Section 3 of the HRA requires courts to interpret legislation compatibly with Convention rights “so far as possible,” but not to modify legislation contrary to clear Parliamentary intent.
• Section 4 of the HRA empowers courts to issue a declaration of incompatibility where interpretation is not possible, signaling that the legislation breaches human rights but leaving its amendment to Parliament.
• The separation of powers is maintained: courts cannot invalidate primary legislation, but can prompt political and legislative correction through declarations.
• Fundamental human rights protections continue to apply even where national security is invoked, and executive powers remain subject to judicial oversight.

Conclusion

The Belmarsh Case established that indefinite detention of foreign terrorism suspects without trial under section 23 of the Anti-Terrorism, Crime and Security Act 2001 was incompatible with the right to liberty under Article 5 ECHR. The House of Lords issued a declaration of incompatibility, reinforcing judicial oversight even in matters of national security while underlining that correction lies within the political domain. This judgment marked a significant affirmation of the judiciary’s role in upholding fundamental rights against executive and legislative measures, particularly under the Human Rights Act 1998.