A v Secretary of State for the Home Department (Belmarsh)
[2004] UKHL 56
Ratio Decidendi
The indefinite detention without charge or trial of foreign nationals suspected of involvement in international terrorism, purportedly justified by a derogation from Article 5 ECHR, was incompatible with Articles 5 and 14 of the Convention. The derogation was not strictly required by the exigencies of the situation (Article 15 ECHR) because the power applied only to foreign nationals — British nationals suspected of the same activity were not detained — demonstrating that the measure was disproportionate. It also discriminated unlawfully on the ground of nationality. The courts have a constitutional function in scrutinising whether executive emergency powers are proportionate, even in matters of national security, though they afford the executive an appropriate margin of appreciation.
ข้อเท็จจริง
Following the September 2001 terrorist attacks in the United States, the UK Home Secretary declared a public emergency under Article 15 ECHR and derogated from Article 5 (right to liberty). Section 23 of the Anti-terrorism, Crime and Security Act 2001 empowered the Secretary of State to certify a person as a suspected international terrorist and to detain them indefinitely without charge or trial if their removal from the UK was impossible (typically because removal would breach Article 3 ECHR). The power applied only to foreign nationals. Nine individuals detained at HMP Belmarsh under s.23 — all foreign nationals — challenged the lawfulness of their detention. The Special Immigration Appeals Commission held the derogation was incompatible with the Convention. The Court of Appeal reversed this decision. The detainees appealed to the House of Lords.
สรุปคำพิพากษา
The House of Lords allowed the appeal by a majority of 8 to 1 (Lord Walker dissenting). Lord Bingham of Cornhill gave the leading opinion, joined by Lords Nicholls, Hope, Scott, Rodger, Carswell, and Baroness Hale. They held that the derogation was not strictly required because the threat from terrorism could not rationally justify detaining only foreign nationals — British nationals who posed the same terrorist threat were not subjected to detention without trial. The measure was therefore disproportionate and discriminatory on grounds of nationality contrary to Article 14. The House declined to detain from reviewing the executive's assessment of necessity, holding that the courts retained their constitutional function even in times of emergency. Lord Hoffmann, concurring in the result, gave the most striking opinion, arguing that the real threat to the life of the nation came not from terrorism but from laws of this kind. A declaration of incompatibility under s.4 Human Rights Act 1998 was made. The House emphasised it could not order the detainees' release — that remained a matter for the executive — but declared the legislative provision incompatible.
คำกล่าวสำคัญ
"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."
— Lord Hoffmann at [97]
"I do not accept the argument that it is always for the executive, and never for the courts, to judge what the exigencies of the situation require."
— Lord Bingham at [29]
"The detention of persons suspected of involvement in terrorism is not rationally connected to the perceived threat if the threat from British terrorists is not similarly countered by detention."
— Lord Bingham at [43]
การอ้างอิงภายหลัง
Prompted the repeal of s.23 ATCSA 2001 and the enactment of the Prevention of Terrorism Act 2005, which introduced control orders applicable to both UK nationals and foreign nationals, followed by TPIMs under the Terrorism Prevention and Investigation Measures Act 2011.
Applied in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, where the House of Lords held that closed-material procedures in SIAC appeals must give detainees sufficient information to challenge the case against them — drawing on the Belmarsh principle of adequate judicial scrutiny.
Considered in Bank Mellat v HM Treasury [2013] UKSC 38, where the Supreme Court applied proportionality review in a national security financial sanctions case, citing Belmarsh for the proposition that courts must scrutinise emergency measures for disproportionality.
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