Law Weblog

Belmarsh detainees: decision by the House of Lords. A, X & Ors v Secretary of State for the Home Department [2004] HL

Monday 27 December 2004 at 8:10 pm | In News | 1 Comment

The “Rule of Law” operates to protect citizens from arbitrary government decisions; it is part of the delicate balance of our constitution and this has been brought into sharp focus by the decisions of the law lords in the Belmarsh detainees’ case, and the resignation of Ian Macdonald QC from the Belmarsh prisoners’ defence team. We are reminded by the law lords that the courts are a restraint on executive arrogance and stand alone against the Government.

The Belmarsh detainees are not UK subjects and they are strongly suspected of terrorist activity. They can not be repatriated because they face torture at home, and no friendly country will receive them. The Home Office allowed them to choose to leave this country or face indefinite detention; their detention has been described as being in a prison with three walls. By a majority of eight to one, the House of Lords concluded that the Government was wrong to detain them without trial; the rights of the detainees had been overridden.

The detainees successfully argued that their detention infringed the right to liberty which is found in Article 5 of the European Convention on Human Rights. Although the state can derogate (withdraw) from Article 5 “In time of war or other emergency threatening the life of the nation … ” it may not go beyond what is “… strictly required … “. Indefinite detention of suspects without charge or trial exceeds what is “… strictly required …” and so infringes the convention. Lord Hoffmann said that the real threat to the life of the nation and its collective values comes “not from terrorism but from laws such as these”.

Charles Clarke – backed by Tony Blair – responded by saying that he would go back to the Commons in the New Year and extend the law to detain the suspects and perhaps to make changes to get round the ruling of the law lords. Until the Human Rights Act 1998, the question of whether the threat to the nation was sufficient to justify suspension of habeas corpus or the introduction of powers of detention could not have been the subject of judicial decision. There could be no basis for questioning an Act of Parliament by court proceedings.

The problem which Lord Hoffman identifies is that the government’s attitude leaves the “Rule of Law” without the bulwark of the Human Rights Act and subject to an arbitrary executive supported by a compliant House of Commons.