A v Secretary of State for the Home Department [2004] UKHL 56

Introduction

A v Secretary of State for the Home Department [2004] UKHL 56 (the Belmarsh case) is one of the most important human rights cases in UK constitutional law. The House of Lords held that the detention of foreign nationals suspected of international terrorism without charge or trial under the Anti-terrorism, Crime and Security Act 2001 was unlawful because it discriminated on the ground of nationality in violation of Article 14 of the European Convention on Human Rights, and that the government’s derogation from Article 5 (right to liberty) was disproportionate.

The Facts

Following the attacks of 11 September 2001, the government enacted the Anti-terrorism, Crime and Security Act 2001, which provided for the indefinite detention without trial of foreign nationals suspected of involvement in international terrorism who could not be deported. The government derogated from Article 5 of the European Convention under Article 15. British citizens suspected of terrorism could not be detained under the Act.

The Judgment

The House of Lords held by an 8 to 1 majority that the detention provisions were unlawful. The court held that the derogation from Article 5 was disproportionate because it was not strictly required by the exigencies of the situation — the threat from terrorism applied equally to British citizens and foreign nationals, and there was no rational basis for detaining only foreign nationals.