Lord Bingham’s lead judgment represents the ratio decidendi as it had the agreement of six of the Lords. Unlike Lord Hoffmann, Lord Bingham was not prepared to hold that no public emergency threatening the life of the nation existed. Nevertheless, he upheld the appeal on the grounds that the detention powers were disproportionate and discriminatory. In relation to the designation issue, Lord Bingham’s approach essentially absolved the Government from advancing clear and convincing evidence to Parliament (and the courts) to demonstrate that a public emergency threatening the life of the nation actually existed.

Lord Bingham approved and applied the case law of the ECrtHR on Article 15 ECHR granting a wide margin of appreciation. He found that to hold that there was no public emergency in cases where, ‘a response beyond that provided by the ordinary course of law was required, would have been perverse’.^[44] This reasoning, however, is illogical as it essentially bases the determination of the question of whether a public emergency exists on the measures taken to address it. As Tom Hickman has observed, ‘if one is to infer from the fact that exceptional measures have been taken that such measures are legitimate then the criteria of legitimacy (ie, public emergency) is relieved of substance’.^[45]

Lord Bingham went on to hold that it was for the appellants to demonstrate that the Government’s claim that there was an emergency that required derogation from the ECHR was ‘wrong and unreasonable’.^[46] The appellants, however, had ‘shown no ground strong enough to warrant displacing the Secretary of State’s decision on this important threshold question’.^[47] Lord Bingham’s reasoning is highly problematic. This reversal of the burden of proof in relation to the existence of a public emergency threatening the life of the nation raises serious concerns from a purely practical perspective. It is difficult to see how individuals will ever be able to disprove the government’s view that an emergency exists, not least because the relevant evidence will be in the hands of the government.^[48] Lord Bingham’s view also runs contrary to the approach taken by the ECrtHR. As indicated earlier, the Strasbourg authorities have repeatedly confirmed that the burden is not upon the individual, but upon the government to demonstrate that there exists a national emergency that requires derogation from international human rights obligations.^[49] It is noteworthy that the Human Rights Committee in its General Comment 29 has taken a similar view.^[50]

With regard to the interference issue, Lord Bingham held that the detention power was not rationally connected to the objective of addressing the imminent threat of terrorism as it did not correspond to that objective in several respects. First, and assuming that the terrorist threat constituting a national emergency stemmed from Al Qa’ida, the detention power set forth in s 23 ATCSA powers applied to non-Al Qa’ida terrorists as well. Second, it applied to Al Qa’ida supporters who posed no direct threat to the national security of the UK. Third, it did not apply to the threat from terrorists who were UK nationals. And fourth, it allowed any ‘suspected international terrorist to leave our shores and depart to another country, perhaps a country as close as France, there to pursue his criminal designs’.^[51] This, said Lord Bingham, was ‘hard to reconcile with a belief in [the terrorists’] capacity to inflict serious injury to the people and interests of this country’.^[52] As a result, the measure taken (ie, s 23 ATCSA) was not strictly required by the exigencies of the situation and the derogation was hence unlawful.

From a purely logical perspective, Lord Bingham’s reasoning with regard to the interference issue is not entirely consistent, especially in light of his findings in relation to the designation issue. He essentially held that it was not for the Court but for government to assess whether the threat of terrorism constituted a public emergency. Nonetheless, Lord Bingham then went on to hold that s 23 ATCSA was not rationally connected to the emergency and thus not suitable to reduce the imminent threat. He failed to explain, however, how he was able to conclude that a measure was not connected to the national emergency, or not suitable to reduce the imminent threat, when the nature and quality of the threat itself was not something that the Court was able to examine or determine. I would argue that this is a logical gap in the majority decision of the House of Lords in Belmarsh Detainees and also in the case law of the ECrtHR in the area of emergency derogations more generally. From a logical standpoint, it is simply impossible to determine whether an emergency measure is suitable to address a threat or a crisis without establishing what the nature or quality of the threat or crisis is in the first place.^[53]