The ECrtHR as well as the House of Lords in the Belmarsh Detainees decision have taken a deferential approach in relation to the designation issue in the context of Article 15 ECHR and have granted national authorities a ‘wide margin of appreciation’ or ‘discretionary area of judgment’ with regard to the existence and analysis of the threat of terrorism that constituted a public emergency threatening the life of the nation. Leaving this discretion to national authorities absolved the courts from examining in greater detail the nature and quality of the threat that justified derogating from international (or domestic) human rights obligations. However, a closer analysis of the rationale behind the margin of appreciation doctrine reveals that several arguments that have been advanced to justify granting national governments a ‘wide’ margin are outdated as well as inapplicable in the context of the threat of international terrorism. Developments in soft law such as the Paris Minimum Standards of Human Rights Norms in a State of Emergency or the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, which in some cases find their origins in dissenting opinions by judges of the Strasbourg authorities, as well as observations by the Human Rights Committee, suggest that the discretion left to governments should be re-considered and adjusted. This is particularly the case in circumstances where the emergency becomes ‘entrenched’ with the threat of terrorism likely to remain present for several years.

In addition, I would argue that granting government a wide discretionary power (with little judicial supervision) in relation to the existence of a public emergency is problematic in light of a further requirement of lawful derogation, that is, that the measures taken pursuant to such derogation need to be ‘strictly required by the exigencies of the situation’ (the interference issue). From a logical perspective, it is difficult to see how it is possible to assess whether measures are ‘strictly required’ to address an emergency effectively when an analysis of the nature and scope of the threat that constitutes such emergency is not undertaken. This is a logical gap which is evident particularly in Lord Bingham’s judgment in Belmarsh Detainees.

An analysis of the nature and size of the terrorist threat that may constitute a public emergency does not necessarily require the courts to have access to specific or classified intelligence that governments are understandably reluctant to release. Lord Hoffmann’s opinion in the Belmarsh Detainees decision is a case in point. While not questioning the existence of a serious terrorist threat to the UK, he nonetheless remained to be convinced that atrocities like the 9/11 attacks or the Madrid train bombings of March 2003 threatened the ‘life of the nation’.^[55] As a result, Lord Hoffmann did not see a need to examine whether the UK Government’s counter-measures (ie, s 23 ATCSA) were ‘strictly required by the exigencies of the situation’. Lord Hoffmann’s approach is refreshingly progressive. It remains to be seen, though, what impact it will have on future decisions of national courts as well as of the European Court of Human Rights.