Public Law Analysis: A v Secretary of State for the Home Department

This report provides a detailed analysis of the case A v Secretary of State for the Home Department, also known as the Belmarsh case, focusing on the legal issues, facts, and judgment. The case involved the detention of foreign nationals under the Anti-Terrorism, Crime and Security Act 2001, challenging its compatibility with the European Convention on Human Rights (ECHR). The report examines the legal rules and provisions, including Articles 5, 14, and 15 of the ECHR, and the International Covenant on Civil and Political Rights. It discusses the House of Lords' judgment, which found the detention provisions incompatible with Article 5, highlighting the discriminatory impact and the importance of proportionality. The report also explores extra-legal reasons, related changes, and the impact of the decision, emphasizing its significance in protecting equality, liberty, and the proportionate use of governmental powers. The decision led to the replacement of the challenged statute with the Prevention of Terrorism Act 2005, and it underscored the importance of judicial review in upholding human rights and ensuring the welfare of the community.

Running head: PUBLIC LAW
Public law
Name of the Student
Name of the University
Author Note

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Table of Contents
Name of the case..............................................................................................................................2
Courts...............................................................................................................................................2
Material Facts of the case................................................................................................................2
Legal Issues to be decided...............................................................................................................3
Legal rules and provisions...............................................................................................................3
Judgment (Conclusion)....................................................................................................................4
Reasons of Judgment.......................................................................................................................4
Extra-legal reasons...........................................................................................................................7
Related Changes..............................................................................................................................7
Impact of the decision......................................................................................................................7
Reference List..................................................................................................................................8

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Name of the case
A v Secretary of State for the Home Department [2004] UKHL 56 First Belmarsh case, [2005] 2
AC 68
Courts
The case was initially head before the Special Immigration Appeals Commission (SIAC)
where the defendants challenged the legality of the Anti-Terrorism, Crime and Security Act
2001 (ATCSA) and the Human Rights Act 1998 (Designated Derogation) Order 2001. The
Belmarsh Case involved court proceedings at several levels of the court system1. It included The
SIAC, Court of Appeal, the European Court of Human Rights and the Appellate Committee of
the House of Lords. The Belmarsh case was decided before 2004 that is, prior to the judicial
functions of the House of Lords was transferred to, now, the United Kingdom Supreme Court.
Material Facts of the case
A number of foreign nationals initiated the legal proceeding who were held in Belmarsh
prison for an indefinite period on the ground that they were detected to have links with
international terrorists. Nevertheless, they were not even charged with any relevant criminal
offence, instead, they were sentenced imprisonment under special powers conferred upon the
government by Crime and Security Act 2001 and Anti-terrorism that was enacted after the
incident of 9/11/2001 in the USA. Part 4 of the Anti-terrorism, Crime and security Act 2001
empowered government to detain non-nationals if it reasonably believes that they posed a threat
to the national security and cannot be deported for practical and safety reasons2.
1 [2004] UKHL 56 First Belmarsh case, [2005] 2 AC 68.
2 Crime, Anti-Terrorism. "Security Act 2001." Pt. IV (2013).

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The nine appellants who were detained under the 2001 Act challenged the legality of the
detention by claiming that such detention was inconsistent with the ECHR3. They claimed that
the government did not fulfill the statutory basis for derogation under Article 15 of the statute4.
They further claimed that even if they were statutorily entitled to be derogated, the legal
provisions were not only incompatible with the remaining Articles and international law but
were also ineffective to justify such detention.
Legal Issues to be decided
The main legal principles that were to be decided in this case were (1) was there an
existence of state of emergency (2) if such an emergency situation existed, were proper measures
taken to deal with the situation (3) were such measures applied in a non-discriminatory fashion5.
The case directly challenged the courts with respect to the extent to which legislation confers
powers upon the executive to deal with any situation that poses a threat to the national security.
The judges had to weigh up the considerations of the power that has been conferred by such
legislation, the limitation of the executive to use such power and the balance of necessity to
restrict the personal liberty for safeguarding national security6.
Legal rules and provisions
The specific rules and provisions that were in issue in this case include the following
provisions of Convention for the Protection of Human Rights and Fundamental freedoms 1950,
Council of Europe:
3 Grabenwarter, Christoph. "European Convention on Human Rights." European Convention on Human Rights.
Nomos Verlagsgesellschaft mbH & Co. KG, 2014.
4 Greene, Alan. "The UK Government’s Proposed ‘Presumption to Derogate’from the ECHR: Submission to the
Joint Committee on Human Rights." (2017).
5Shelton, Dinah. Remedies in international human rights law. Oxford University Press, USA, 2015.
6 Harris, David, et al. Law of the European Convention on Human Rights. Oxford University Press, 2014.

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 Rights to security and liberty ( Article 5(1)(f));
 Derogation in time of emergency (Article 15);
 Prohibition of Discrimination (Article 14);
It further includes provisions of the International Covenant on Civil and Political Rights 1966,
UN General Assembly:
 Right to life (Article 6);
 Equality before law (article 26);
The case also includes issue related to detention stipulated under section 23(1) of the Anti-
Terrorism, Crime and Security Act 2001, UK7.
Judgment (Conclusion)
The House of Lords held that the legal provisions (section 23) under which the claimants
were detained at Belmarsh prison were not compatible with Article 5 of the European
Convention of Human Rights8. Such statutory provisions had a discriminating impact on the
nationals and foreign nationals of the state. The Lords held that the declaration made was
incompatible under section 4 of the Human Rights Act 19989.
Reasons of Judgment
The vital legal provisions applicable to this case include Article 5(1) (f) ECHR that states
that no person shall be deprived of his liberty except when the detention is legal. Further, such
7Anti-Terrorism, Crime. "Security Act 2001." The Parliament of the United Kingdom, London (2013).
8Rainey, Bernadette, Elizabeth Wicks, and Clare Ovey. The European Convention on human rights. Oxford
University Press (UK), 2014.
9 Greene, Alan. "The UK Government’s Proposed ‘Presumption to Derogate’from the ECHR: Submission to the
Joint Committee on Human Rights." (2017).

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arrest or detention should be legal for which such person shall be deported from the country.
Such a person shall be subjected to detention only during the period of his deportation process.
Derogation from the provision is permissible although during war or other public emergency that
poses a threat to the national security under Article ECHR. However, it is permissible only if the
Secretary General of the Council of Europe is informed about the measures undertaken and the
reasons for undertaking such measures.
The Derogation Order 2001, Human Rights Act 1998 considers that if foreign nations
present in UK are suspected of being involved in the preparation, commission or provocation of
conduct that amounts to international terrorism, it shall amount to a threat to the national security
of the United Kingdom10. According to Lord Bingham, where the Court had ruled that the phrase
‘other public emergency threatening the life of the nation’ signifies an exceptional situation of
emergency or crisis that affects the entire population and poses a threat to the organized life of
the society which forms the state as stipulated under Para 8 of the ECHR decision.
He further held that such threat should be imminent and temporal. Initially, it is up to the
national government to decide whether such emergency state exists, though there is a scope of
judicial review as well. However, in case the issue involved is more political and less legal in
nature, the scope of judicial review shall reduce. Alternatively, in case any issue has greater legal
content, it expands the role of the courts to deal with such issue because the Constitution of the
country and the sovereign power conferred upon the Parliament stipulates that it is the function
of a court to resolve any legal issue and not the political bodies.
10 Greene, Alan. "The UK Government’s Proposed ‘Presumption to Derogate’from the ECHR: Submission to the
Joint Committee on Human Rights." (2017).

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Lord Bingham further asserted that the government could not undertake any measure to
deal with public emergency; the measure must be proportional in nature. While determining such
proportionality of the detained defendants, the House of Lords had taken into consideration of
the fact that foreigners who were certified and detained are permitted to leave the country.
Further, while deciding whether there was a state of emergency that was threatening the security
of the nation, eight of the nine judges in the House of Lords acknowledged that there as a state
of emergency.
However, they had to determine whether the measures undertaken to combat with the
state of emergency were justifiable. Majority of the judges in the House of Lords clearly refused
to accept that the measures undertaken to respond to the state of emergency was not necessary.
The reason being Opinion 1/2002 of the European Commissioner for Human Rights, the
review of the 2001 Act by the Newton Committee and the SIAC’s failure establishes that the
measures were illogical and disproportional11. The House of Lords held that the foreign terrorist
suspects may leave voluntarily if they can leave but if they cannot leave voluntarily due to the
risk of persecution in their own country, only then UK can detain them for an indefinite period.
In regards to the argument regarding distinct treatment towards the foreign terrorist
suspects, the House of Lords held that Article 14 of ECHR prohibits discrimination on the
grounds of nationality and the UK nationals were in the same situation as the foreign nationals.
Therefore, a decision to detain one group of suspected international terrorist based on
immigration or nationality status and not another is discriminatory and is unjustified.
11 Greene, Alan. "The UK Government’s Proposed ‘Presumption to Derogate’from the ECHR: Submission to the
Joint Committee on Human Rights." (2017).

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Extra-legal reasons
The reasons provided by the House of lords demonstrates a connection between law and
morality and that merits of positive law are assessed on the basis of its compatibility with moral
principles. The decision signifies the fact that legal authority exists where it ensures the welfare
of the community12. As is perceived from the case, laws were misconstrued, as the human rights
law was inconsistent with the natural law. The inconsistency between the 2001 Act and the
human rights obligations required the need for judicial review to determine the use of power.
According to Lord Hoffman, he considered liberty as a fundamental British right, hence, the
indefinite detention without lawful ground was incompatible with the right to liberty.
Related Changes
The decision of this case has led the Parliament to replace the challenged statute Anti-
Terrorism, Crime and Security Act 2001 with the Prevention of Terrorism Act 2005 that permits
SIAC to make control order.
Impact of the decision
The decision is significant as it interferes with the equality and liberty and illegally
discriminated against the foreigners who were thought to be terror suspects and were locked up
without any charge or trial. The judgment does not mandate the government to release the
detainees immediately but under the Human Rights Act, the government must undertake
measures to resolve the situation. The legislations enacted must aim at ensuring welfare of the
community and the powers vested in authorities shall be used proportionately and logically.
12 Ip, Eric C. "The judicial review of legislation in the United Kingdom: a public choice analysis." European Journal
of Law and Economics 37.2 (2014): 221-247.

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Reference List
A v Secretary of State for the Home Department [2004] UKHL 56 First Belmarsh case, [2005] 2
AC 68
Anti-Terrorism, Crime. "Security Act 2001." The Parliament of the United Kingdom,
London (2013).
Buergenthal, Thomas, et al. International human rights in a nutshell. West Academic, 2017.
Crime, Anti-Terrorism. "Security Act 2001." Pt. IV (2013).
Donnelly, Jack. Universal human rights in theory and practice. Cornell University Press, 2013.
Freeman, Michael. Human rights. John Wiley & Sons, 2017.
Grabenwarter, Christoph. "European Convention on Human Rights." European Convention on
Human Rights. Nomos Verlagsgesellschaft mbH & Co. KG, 2014.
Greene, Alan. "The UK Government’s Proposed ‘Presumption to Derogate’from the ECHR:
Submission to the Joint Committee on Human Rights." (2017).
Harris, David, et al. Law of the European Convention on Human Rights. Oxford University
Press, 2014.
Ip, Eric C. "The judicial review of legislation in the United Kingdom: a public choice
analysis." European Journal of Law and Economics 37.2 (2014): 221-247.
Rainey, Bernadette, Elizabeth Wicks, and Clare Ovey. The European Convention on human
rights. Oxford University Press (UK), 2014.

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Shelton, Dinah. Remedies in international human rights law. Oxford University Press, USA,
2015.