A and Others v. Secretary of State for the Home Department
Encyclopedia
A and others v Secretary of State for the Home Department [2004] UKHL 56 is a UK human rights case heard before the House of Lords. It held that the indefinite detention of foreign prisoners in Belmarsh
without trial under the section 23 of the Anti-terrorism, Crime and Security Act 2001
was incompatible
with the European Convention on Human Rights
.
The case should not be confused with the case A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, which relates to the use of evidence obtained by torture in British courts.
to eject them from the country on the basis that there was evidence that they threatened national security.
Of the 9 appellants, all except 2 were detained in December 2001; the others were detained in February and April 2002 respectively. All were detained under the Anti-terrorism, Crime and Security Act 2001
. Part 4 of the Act provided for their indefinite detention without trial and deportation. However, the power was only applied to non-British nationals. Under section 25 of this Act, they had the right to appeal to the Special Immigration Appeals Commission
against their detention.
, Lord Scott of Foscote, Lord Rodger of Earlsferry
, Baroness Hale of Richmond and Lord Carswell) that, whilst their detention was lawful under the ATCSA 2001, section 23 was incompatible with the articles of the European Convention on Human Rights
. As a consequence, the House of Lords made a declaration of incompatibility under section 4 of the Human Rights Act 1998, and allowed the appeals.
Lord Hoffmann dissented in strong terms, but agreed that the appeals should be allowed. Whereas the majority argued that the 2001 Act was contrary to the ECHR because it discriminated between nationals and foreign nationals (Art.14 ECHR), Lord Hoffmann stated that the whole scheme was incompatible with the United Kingdom's constitution, and its commitment to human rights (especially Art.5 and Art.6). He dismissed the government's argument that under the ECHR and HRA it was possible to derogate from the ECHR's general provisions. His view was that the test, that there is a "threat to the life of the nation" was not fulfilled.
Lord Walker of Gestingthorpe also dissented, but would have dismissed the appeal. In his opinion, the discrimination was justified due to "sound, rational grounds for different treatment". While the indefinite detention provisions were a "grave concern", they were "necessary" and accompanied by "several important safeguards against oppression". He therefore held that Part 4 of the 2001 Act was "proportionate, rational and non-discriminatory".
. This allows anyone of any nationality to be subjected to a control order
.
Belmarsh (HM Prison)
HM Prison Belmarsh is a Category A men's prison, located in the Thamesmead area of the London Borough of Greenwich, in south-east London, England. Belmarsh Prison is operated by Her Majesty's Prison Service...
without trial under the section 23 of the Anti-terrorism, Crime and Security Act 2001
Anti-terrorism, Crime and Security Act 2001
The Anti-Terrorism, Crime and Security Act 2001 was formally introduced into the Parliament of the United Kingdom on 19 November 2001, two months after the terrorist attacks on New York on 11 September. It received royal assent and came into force on 14 December 2001...
was incompatible
Declaration of incompatibility
A declaration of incompatibility is a declaration issued by judges in the United Kingdom that they consider that the terms of a statute to be incompatible with the UK's obligations under the Human Rights Act 1998, which incorporated the European Convention of Human Rights into the UK domestic...
with the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
.
The case should not be confused with the case A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, which relates to the use of evidence obtained by torture in British courts.
Facts
The case began with 9 men who challenged a decision of the Special Immigration Appeals CommissionSpecial Immigration Appeals Commission
The Special Immigration Appeals Commission is a superior court of record in the United Kingdom established by the Special Immigration Appeals Commission Act 1997 that deals with appeals from persons deported by the Home Secretary under various statutory powers, and usually related to matters of...
to eject them from the country on the basis that there was evidence that they threatened national security.
Of the 9 appellants, all except 2 were detained in December 2001; the others were detained in February and April 2002 respectively. All were detained under the Anti-terrorism, Crime and Security Act 2001
Anti-terrorism, Crime and Security Act 2001
The Anti-Terrorism, Crime and Security Act 2001 was formally introduced into the Parliament of the United Kingdom on 19 November 2001, two months after the terrorist attacks on New York on 11 September. It received royal assent and came into force on 14 December 2001...
. Part 4 of the Act provided for their indefinite detention without trial and deportation. However, the power was only applied to non-British nationals. Under section 25 of this Act, they had the right to appeal to the Special Immigration Appeals Commission
Special Immigration Appeals Commission
The Special Immigration Appeals Commission is a superior court of record in the United Kingdom established by the Special Immigration Appeals Commission Act 1997 that deals with appeals from persons deported by the Home Secretary under various statutory powers, and usually related to matters of...
against their detention.
Judgment
The House of Lords held by a majority (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hope of CraigheadDavid Hope, Baron Hope of Craighead
James Arthur David Hope, Baron Hope of Craighead, is a Scottish judge and Deputy President of the Supreme Court of the United Kingdom, having previously been the Second Senior Lord of Appeal in Ordinary.-Early life:...
, Lord Scott of Foscote, Lord Rodger of Earlsferry
Alan Rodger, Baron Rodger of Earlsferry
Alan Ferguson Rodger, Baron Rodger of Earlsferry, FRSE, FBA, PC was a Scottish lawyer and Justice of the Supreme Court of the United Kingdom....
, Baroness Hale of Richmond and Lord Carswell) that, whilst their detention was lawful under the ATCSA 2001, section 23 was incompatible with the articles of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
. As a consequence, the House of Lords made a declaration of incompatibility under section 4 of the Human Rights Act 1998, and allowed the appeals.
Lord Hoffmann dissented in strong terms, but agreed that the appeals should be allowed. Whereas the majority argued that the 2001 Act was contrary to the ECHR because it discriminated between nationals and foreign nationals (Art.14 ECHR), Lord Hoffmann stated that the whole scheme was incompatible with the United Kingdom's constitution, and its commitment to human rights (especially Art.5 and Art.6). He dismissed the government's argument that under the ECHR and HRA it was possible to derogate from the ECHR's general provisions. His view was that the test, that there is a "threat to the life of the nation" was not fulfilled.
Lord Walker of Gestingthorpe also dissented, but would have dismissed the appeal. In his opinion, the discrimination was justified due to "sound, rational grounds for different treatment". While the indefinite detention provisions were a "grave concern", they were "necessary" and accompanied by "several important safeguards against oppression". He therefore held that Part 4 of the 2001 Act was "proportionate, rational and non-discriminatory".
Significance
Parliament decided to replace Part 4 of ATCSA 2001 with the Prevention of Terrorism Act 2005Prevention of Terrorism Act 2005
The Prevention of Terrorism Act 2005 is an Act of the Parliament of the United Kingdom, intended to deal with the Law Lords' ruling of 16 December 2004 that the detention without trial of eight foreigners at HM Prison Belmarsh under Part 4 of the Anti-terrorism, Crime and Security Act 2001...
. This allows anyone of any nationality to be subjected to a control order
Control order
A control order is an order made by the Home Secretary of the United Kingdom to restrict an individual's liberty for the purpose of "protecting members of the public from a risk of terrorism". Its definition and power were provided by Parliament in the Prevention of Terrorism Act 2005...
.
See also
- A v Secretary of State for the Home Department [2005] UKHL 71, on the admissibility of evidence obtained by torture.