From the very first chapter of ‘Letters to a Law Student’, Nicholas J. McBride painted the concept of law as a conversation between people who have different values and opinions on what an ideal society should be. He cited The Belmarsh Case, more formally known as A v Secretary of State for Home Department (2004), as a prime example of conflicting opinions on the importance of human rights relative to national security.
A bit of background context to this case — after the events of 9/11 in the US, and the subsequent international terror and confusion that followed, the UK hastily passed the Anti-terrorism, Crime and Security Act (2001). This covered a broad spectrum of government powers in regards to terrorism, but of particular note is the following section from Part 4:
Anti-terrorism, Crime and Security Act (2001), Part 4, Section 23
(1) A suspected international terrorist may be detained despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by —
(a) a point of law which wholly or partly relates to an international agreement, or
(b) a practical consideration.
This legislation gave the UK government the power to detain non-British individuals suspected of involvement with terrorism, and detain them until they could be deported. This was the case with a group of people being kept at Belmarsh Prison in London. However, the issue with these people was that they came from countries known for practicing torture. Deporting them back to these countries would result in a real risk of them being tortured, breaching the European Convention on Human Rights. It is for this reason the UK government was unable to follow usual protocol (deportation), and seeked to detain the individuals for an indefinite period of time instead.
European Convention on Human Rights, Article 3, Prohibition of Torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
However, by respecting the terror suspects’ rights to not be tortured, and by refusing to deport them back to their respective countries, the UK government was accused of infringing on another fundamental human right — the right to liberty.
European Convention on Human Rights, Article 5, Right to Liberty and Security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.
Emphasis on “promptly” here — there is a concept of time, and one that doesn’t stretch on indefinitely. So keeping the Belmarsh terror suspects in prison forever would be a breach of their right to liberty.
The Convention did, however, allow for some rights to be suspended in extreme circumstances, namely a war or public emergency:
European Convention on Human Rights, Article 15, Derogation in Time of Emergency
1. 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.
The case brought before the House of Lords Appellate Committee (equivalent to nowadays’ Supreme Court) required them to decide whether the conditions of Article 15 had been met, which would subsequently determine whether the Belmarsh prisoners’ indefinite detainment was lawful.
8 out of 9 lords agreed that the UK was in a situation of public emergency, with only Lord Hoffmann disagreeing that the risk posed by these terror suspects to British society was so great as to threaten the life of the nation. The 8 lords who agreed then moved on to the second condition: was imprisonment of the suspects a necessary response to the emergency? Of this, all but one felt that it was not. Many argued that international terror suspects were no more dangerous than British terror suspects, who were subjected to less invasive methods such as surveillance, monitoring and tagging. Going one step further and stripping these non-nationals of their liberty was simply not necessary. So the House of Lords ruled in favour of the prisoners.
However, this did not mean that the Belmarsh prisoners could be set free. Even though the court found the Anti-terrorism, Crime and Security Act unlawful, they did not have the power to strike down or refuse to apply the legislation. This was due to the separation of powers principle unique to Great Britain: the government was — and still is — divided into executive, legislative and judicial branches, each of which have respective powers that cannot be transferred. This meant that Parliament was sovereign, and any statutes it enacted could not be overruled by the courts.
All that the House of Lords could do was issue a “declaration of incompatibility”. This signaled to the government and the public that UK law failed to adhere to EU human rights standards, putting political pressure on the government to repeal the Act. And so they did.
In conclusion, this case made me appreciate the delicate interplay between competing interests that have to be tackled by the law. On one side of the conversation, law is about necessity, as the UK government felt obligated to sacrifice the right to liberty of a handful of individuals in order to protect the wider society. On another hand, law is about strict rules to keep authorities in check, and prevent those in positions of power from oppressing the voices of the minority.
The Belmarsh Case also dealt with several interesting issues in constitutional law. It made me question whether Parliamentary sovereignty is a doctrine that causes more harm than good. Yes, it prevents governments and rulers from becoming tyrannical and dictator-like, but what happens if Parliament itself makes a mistake, or as in this case, breaches fundamental human rights? Should courts be given greater powers over Parliament in events such as these? Is there a better model to follow — an opinion in law’s conversation that is voiced out, but being silently ignored?
For additional resources and more thought-provoking questions, check out My HE+ — they explain the case much more coherently and concisely than I ever could!