The ECrtHR has yet to address the question of whether the post-9/11 threat of terrorism may constitute a ‘public emergency threatening the life of the nation’ as well as the issue of what domestic measures might be necessary and proportionate to counter it. Both issues, however, were addressed by the House of Lords in the recent Belmarsh Detainees decision. From an international human rights perspective, the case is of particular interest as it deals with both the designation and interference issues in the context of the Human Rights Act 1998 (UK), which incorporates the ECHR into domestic British law.
The case was brought by nine foreign (non-UK) nationals who had been certified by Britain’s Home Secretary under s 21 of the Anti-Terrorism, Crime and Security Act 2001 (‘ATCSA’) as suspected international terrorists and who had been detained under s 23 of the Act which allowed for detention without charge.[40] Section 23(1) ATCSA reads as follows:
a suspected international terrorist may be detained under a provision specified in subsection (2) 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.[41]
The claimants challenged the legality of both these provisions and the Government’s decision to derogate from Article 5 ECHR in respect of the detention provision.[42] The challenge had previously been unsuccessful before the Court of Appeal.
The Lords essentially had to address two central issues. The first was whether the Government’s derogation from the ECHR in respect of the detention measures was lawful. The second was whether the statutory provisions under which the appellants had been detained were incompatible with the ECHR. The Lords thus addressed the designation issue as well as the interference issue. By an eight-to-one majority, the derogation by the UK Government from the ECHR was quashed and a declaration issued to the extent that s 23 ATCSA was incompatible with the Human Rights Act 1998 (UK).[43]
The House of Lords judgments can be divided into three camps. Seven members of the Court — Lords Bingham, Nicholls, Hope, Scott, Rodger, Carswell, and Baroness Hale — held that, while a ‘public emergency threatening the life of the nation’ could be said to exist, the detention provision could not be said to be ‘strictly required’ by that emergency. It was disproportionate and discriminatory and hence unlawful. One judge — Lord Walker — dissented. He held both that there was a public emergency threatening the life of the nation and that the detention provision of s 23 ATCSA was neither discriminatory nor disproportionate to the aim the measure sought to achieve. Lord Hoffmann agreed with the majority that the provisions in question were incompatible with the ECHR. However, he was the only judge who held the derogation unlawful on the ground that there was no ‘war or other public emergency threatening the life of the nation’ within the meaning of Article 15 ECHR.
[40] A Tomkins, ‘Legislating against Terror: the Anti-Terrorism, Crime and Security Act 2001’ (2002) (Summer) Public Law 205; H Fenwick, ‘The Anti-Terrorism, Crime and Security Act 2001: A Proportionate Response to September 11?’ (2002) 65 Modern Law Review 724.
[41] Section 23 has been repealed in the wake of the House of Lord’s decision in Belmarsh Detainees [2005] 2 AC 68.
[42] In asserting the existence of a public emergency in the UK, the British Government stated that: ‘There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.’ See the Human Rights Act 1998 (Designated Derogation) Order 2001, No 3644, which came into force on 13 November 2001.
[43] Belmarsh Detainees [2005] 2 AC 68, [73] (Lord Bingham). See also the judgments of Lords Nicholls, Hope, Scott, Rodger, Carswell, and Baroness Hale at [85], [139], [160], [190], [240] and [239] respectively.