A and Others v. Secretary of State for the Home Department

"A and others v. Secretary of State for the Home Department; X and another v. Secretary of State for the Home Department" [2004] UKHL 56 was a case heard before the Appellate Committee of the House of Lords in the United Kingdom regarding the indefinite detention of the so-called Belmarsh detainees. The ruling also issued a Declaration of Incompatibility with the Human Rights Act 1998 in regards to section 23 of the Anti-terrorism, Crime and Security Act 2001. [http://www.lawbore.net/articles/pil1.pdf]

The case should not be confused with the "A v. Secretary of State for the Home Department" [2005] UKHL 71 case which relates to the use of evidence obtained by torture in British courts.

Facts of the case

The case began with 10 men who challenged a decision of the Special Immigration Appeals Commission to eject them from the country on the basis that there was evidence of them being a threat to national security.

Of the 10 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.http://216.239.59.104/search?q=cache:xC5MN5V8BK0J:www.lawbore.net/gotosite.php%3Fid%3D1009+A+and+Others+v.+Secretary+of+State+for+the+Home+Department&hl=en&ct=clnk&cd=5&gl=uk&safe=vss] Part 4 of the Act allowed this procedure and their deportation only for non-British nationals. Under section 25 of this Act, they had the legal right to appeal to the Special Immigration Appeals Commission against their detention. [ [http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand-1.htm House of Lords - A and others (Appellants) v. Secretary of State for the Home Department (Respondent) (2004)A and others (Appellants) and others v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals) ] ]

The ruling

The House of Lords held by a majority (Lord Bingham, Lord Nicholls, Lord Hope, Lord Scott, Lord Rodger, Lord Walker, Baroness Hale and Lord Carswell) that, whilst the detention was legal under the ACSA 2001, this act was incompatible with the articles of the European Convention on Human Rights. Their Lordships issued a declaration of incompatibility, under section 4 of the Human Rights Act 1998.

Lord Hoffmann dissented in strong terms. The difference between them was that the majority thought that the 2001 Act was contrary to the ECHR because it discriminated between nationals and foreign nationals (Art.14 ECHR), and Lord Hoffmann said directly 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.

cquote|96. This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.

97. For these reasons I think that the Special Immigration Appeals Commission made an error of law and that the appeal ought to be allowed. Others of your Lordships who are also in favour of allowing the appeal would do so, not because there is no emergency threatening the life of the nation, but on the ground that a power of detention confined to foreigners is irrational anddiscriminatory. I would prefer not to express a view on this point. I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

Epilogue

Parliament decided to replace the ACSA 2001 with the Prevention of Terrorism Act 2005. This allows anyone of any nationality to be detained.

Parliament is currently in the process of ratifying 42 day detention without trial for suspected terrorists, over which David Davis MP resigned to fight a by-election, which he subsequently won.

ee also

*"A v. Secretary of State for the Home Department" [2005] UKHL 71, on the admissibility of evidence for torture.

References

External links

* [http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&others.pdf full text of decision]