Belmarsh and the UK constitution #1: Setting the scene

I have been recording some short videos for the new admissions website that we are developing at the Cambridge Law Faculty. In the videos, I discuss the Belmarsh Prison case, decided by the Appellate Committee of the House of Lords in 2004. Belmarsh is one of the most significant public law decisions of recent years, and (I think) it provides an accessible and interesting way of starting to understand how the UK’s constitution works. I will post the videos in due course. In the meantime, however, I’ll be posting the text of these mini-lectures over the next week or two. This is the first instalment (of three). 

Public law

People often assume that public law – constitutional law – is about very big picture questions. How are laws made? How does devolution work? What is the UK’s legal relationship with the European Union? Public law is about those things. But it is also about how that big picture relates to – and impacts upon, sometimes in very stark ways – real people.

Sometimes those people are marginalised and unpopular. And the question arises whether the majority in society are – and should be – free to treat such people as they wish. Or does – should – law prevent the majority from advancing their own interests at the expense of the weaker and the more vulnerable? Those are the questions that lie at the heart of the Belmarsh Prison case – more formally known as A v Secretary of State for the Home Department

Our story begins, however, thousands of miles from Belmarsh Prison in London. It begins in the north-eastern United States. As everyone knows, events in that part of the world on September 11th 2001 – and, most iconcally, at the World Trade Center in New York – changed the course of recent history. The fall of the Twin Towers precipated the decade long war in Afghanistan, and, only slightly less directly, the war in Iraq.

The events of 9/11 also gave rise to a climate of fear unparalleled in comfortable, secure Western societies in recent decades. That was certainly the case in the UK. As a key strategic ally of the United States, it was perfectly reasonable to suppose that if Al-Qaeda could strike in Washington DC and New York City, then London might be next.

The Anti-terrorism, Crime and Security Act 2001

Against that background, legislation – which became the Anti-terrorism, Crime and Security Act 2001 – was rushed at top speed through the UK Parliament in the days and weeks following 9/11. The Act was very long and complicated, covering a sweep of terrorism-related matters ranging from police powers to nuclear and aviation security. But of all the provisions contained in the Act, one set – known as Part 4 – was especially striking.

Here’s how Part 4 worked. The Home Secretary – a member of the Government – could issue a “certificate” against somebody if certain conditions were met. So, what were those conditions? First, she had to reasonably believe that the person’s presence in the UK was a risk to national security. Second, she had to reasonably suspect the person of being an international terrorist. And, third, the person concerned had to be a foreigner – in other words, not a British citizen.

If someone met those conditions, then a certificate could be issued. And then what? If it was not possible to deport the person then they could be detained instead. In other words, people who had certificates issued against them but who couldn’t be removed from the country could instead be imprisoned. And that didn’t mean imprisoned after having been convicted of a criminal offence following a fair trial before an independent court of law. It meant imprisoned, for an indefinite, open-ended period, on the say-so of a Government Minister.

The European Convention on Human Rights

Of course, people – including terror suspects, and even foreign terror suspects – have human rights. And one of the most fundamental human rights is the right to liberty. That right has been recognised in UK law for centuries, and is now enshrined in the European Convention on Human Rights.

Article 5 of the Convention says that everyone has the right to liberty, and that a person’s liberty can only be restricted in very limited circumstances – for example, when an independent court of law has found someone guilty of a criminal offence and sentenced them to a term of imprisonment. But it is very clearly a breach of the right to liberty to imprison someone indefinitely without a fair trial at the direction not of an independent judge but of a Government Minister.

So how could this happen? How could the UK make a law so clearly in breach of fundamental human rights? The Government, of course, had anticipated all of this. And it had a card up its sleeve. That card was another part of the European Convention – a sort-of “get-out clause”.

Article 15 of the Convention says that in certain very grave circumstances, it is lawful to, in effect, suspend some human rights, including the right to liberty. (But Article 15 doesn’t allow some other rights to be suspended. One right that cannot be suspended is the right not to be tortured – which includes the right not to be deported to countries where there is a real risk of torture. That is why the Government could not deport some foreign terror suspects – they came from countries known to practice torture – and therefore sought to imprison them in the UK instead.)

The Government’s case, then, was that following 9/11, the security situation was so severe that Article 15 allowed the right to liberty to be suspended. The suspects who were being held in Belmarsh Prison disagreed. And that disagreement was what the courts had to resolve in the Belmarsh Prison case. In doing so, the courts had to address some difficult and delicate questions about the extent to which individuals’ rights can be sacrificed or qualified in the pursuit of the (perceived) interests of the majority. And the courts also had to confront questions about their own role, and the extent to which the views of elected politicians expressed through an Act of Parliament – should take priority in such circumstances. Looked at in this way, the case was not only about how to strike the balance between individual liberty and (the perceived demands of) public safety, but also concerned the balance of power between Parliament and the courts.

In the second post, I’ll examine the decision of the House of Lords in the Belmarsh Prison case itself. A third post will follow, concerning the wider implications of the case—and the lessons we can learn from it about the nature of the UK’s constitution today. If you would like to read more about this case and related issues, you might like to look at chapter 1 of the textbook, Public Law, which I published in 2011 with Professor Robert Thomas. Chapter 1 can be read, free-of-charge, via this link on the Oxford University Press website.  

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