Following the attacks of 9 September 2001 in the United States, the British government hastily passed the Anti-terrorism, Crime and Security Act 2001[1]: the Bill was laid before Parliament on 19 November and it received Royal Assent on 14 December 2001.  The powers it conferred were wide-ranging and its measures were draconian.  The need for statutory measures to enhance national security in the face of the very real threat from Al-Qaeda and others was almost universally acknowledged; but there was widespread criticism and profound concern about the way this was being done, undermining fundamental freedoms and vesting extraordinary power in the executive.

This was particularly the case with Part 4 of the 2001 Act, which allowed the Home Secretary to certify an individual as a ‘suspected international terrorist’ if (s)he suspected the person to be a terrorist (including the vague status of having links with an international terrorist group) and believed their presence in the UK to be threat to national security.  If it were then impossible to remove that person from the UK, the certified individual could be detained.

 

Indefinite detention without charge or trial, let alone conviction of a criminal offence? Detainees enjoying none of the protections a criminal trial is intended to afford? Detained on the suspicion of a government minister?  No right to see the evidence on which basis the suspicion was made? Surely this was not in keeping with the fundamental rights and freedoms accorded to individuals in the UK?

 

The government, of course, knew that detentions under s23 would breach Article 5 of the European Convention on Human Rights (ECHR), which prohibits arbitrary detention. So when they passed the legislation, they made a declaration under Article 15 of the ECHR, which allows a Party to the convention to opt out of certain convention rights ‘in time of war or other public emergency threatening the life of the nation…to the extent strictly required by the exigencies of the situation’.

 

So when nine men detained in Belmarsh Prison under s23 of the 2001 Act and, like many others, faced an unknown period of time in prison, they appealed that detention under the Human Rights Act (HRA). Their case, A v SSHD [2004] UKHL 56, which started in 2002, was one of the early cases in which convention rights were argued directly in the UK courts. In 2004 by the House of Lords (whose appellate function as the UK’s highest domestic court has since been transferred to the Supreme Court) decided the case. The case was particularly testing, as it required a balancing of fundamental rights and freedoms and the exigencies of national security and required analysis of the government’s assertion that the ‘life of the nation’ was threatened.

 

A v SSHD was considered by a panel of nine Law Lords (a constitution of the court reserved for only the most important constitutional questions) and eight of those nine judges found in favour of the detained men. A v SSHD set important foundations in the UK for the way in which the courts would approach HRA cases, how human rights and national security concerns would be balanced and how the relationship between government and the judiciary would be viewed.  

 

Firstly, the House of Lords had to decide whether there was an emergency for the purposes of Article 15.  Eight of the Law Lords decided that there did exist a public emergency which threatened the life of the nation.  Lord Hoffmann, however, did not consider this to be the case, concluding that ‘terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.’ He, therefore, decided in favour of the detainees along with the majority of eight, but for different reasons.

 

Secondly, they had to decide whether the violation of Article 5 was proportionate in the circumstances. On that point the majority decided that it was not: the government had not shown that other less extreme measures would not have sufficed. Furthermore, the men could not take steps to free themselves (ie be deported). The decision also pointed out that the measures were only applicable to non-UK nationals, although it had been shown similar alleged threats came from UK nationals.  On this basis, the Lords also decided that there was a breach of Article 14, which prohibits discrimination under the HRA, in this case on the basis of nationality or immigration status.

 

The outcome of the case was to quash the derogation which the government made under s15 (the Human Rights Act 1998 (Designated Derogation) Order 2001 and to declare s23 of the 2001 incompatible with the HRA, on the basis that detentions were disproportionate and discriminated on the ground of nationality or immigration status.

 

Although the House of Lords could not, under the HRA, order the release of the detainees or quash the legislation in question, eventually they detainees were released and the relevant Part 4 of the Anti-terrorism, Crime and Security Act 2001 was repealed.

 

Part 4 was replaced by a regime of control orders in the Terrorism Act 2005, which imposed house arrests and other incredibly restrictive conditions on the lives of terrorism suspects. That was also subject to appeals under the HRA and was eventually repealed. More of that another day, though…

 

Those and later challenges owed a great debt A v SSHD, which drew a mark in the sand in terms of how the judiciary could and would use the HRA to uphold the fundamental rights and freedoms of individuals even in the most challenging of circumstances in the realm of National Security.

This Blog was writen as part of 15 Days of Action by Victoria Vasey, Senior Human Rights Officer at Rights Watch (UK)