Belmarsh and the UK constitution #2: The House of Lords’ judgment

This is the second in a series of three posts on the Belmarsh Prison case. The posts originate from some videos that I have been recording for the Cambridge Law Faculty’s new admissions website. In the videos, I aim to introduce some fundamental ideas about the nature of UK constitutional law using the decision in Belmarsh as a case study. The first post, setting out the background to the case, can be found here. In this second post, I examine the judgment of the Appellate Committee of the House of Lords.  

The Belmarsh Prison case was looked at at several levels of the court system: the Special Immigration Appeals Commission, the Court of Appeal, the Appellate Committee of the House of Lords, and the European Court of Human Rights. I want to focus on the decision of only one of those courts: the Appellate Committee of the House of Lords. (The Belmarsh case was decided in 2004, well before the judicial functions of the House of Lords were transferred to what is now the United Kingdom Supreme Court. At that time, then, the Appellate Committee of the House of Lords was the UK’s apex court – that is, its highest court – albeit that beyond the UK, further claims could, as they still can, be brought in the European Court of Human Rights.)

Article 15 of the European Convention on Human Rights

What, then, was the issue that the House of Lords had to resolve in the Belmarsh case? The Government argued that the foreign terror suspects’ right to liberty could, in effect, be suspended – and suspended lawfully – because the “get-out” clause in the European Convention on Human Rights, Article 15, applied. The key question was whether that was the case. Could the right to liberty – which is normally protected by Article 5 of the European Convention – be suspended by using Article 15, thereby avoiding any incompatibility between the Convention and the legislation – the Anti-terrorism, Crime and Security Act 2001 – providing for the detention of the suspects?

Article 15 does not allow Governments to suspend human rights just because they feel like it. Quite the reverse. Preventing people from exercising their fundamental rights is a very serious step – and Article 15 rightly sets out some very strict conditions that have to be met before that step can be taken. So, what are those conditions? First, there has to be a “war or other public emergency threatening the life of the nation”. Second, if there is, then a State – like the UK – can “derogate“ from the Convention “to the extent strictly required by the exigencies of the situation”. In other words, human rights can be suspended as long as there is a war or emergency, but only to the extent that the suspension of human rights is made strictly necessary by the nature and severity of that emergency.

Was there a “war” or “public emergency threatening the life of the nation”?

So, in Belmarsh, the House of Lords had to decide whether those two conditions were met. First, then, was there a “war” or a “public emergency threatening the life of the nation”? Of the nine judges – or Law Lords, as House of Lords judges were known – who decided the Belmarsh case, eight thought that there was. None of those eight thought there was a “war” – notwithstanding the rhetoric of the “war on terror”. But eight Law Lords were prepared to accept the Government’s argument that the 9/11 attacks amounted to evidence of a global terror threat that was sufficiently likely to affect the UK – and, if it did, sufficiently likely to be sufficiently catastrophic – as to amount to a “public emergency threatening the life of the nation”.

One of the nine Law Lords, however, did not think there was a war or a public emergency. Lord Hoffmann argued that the others had misunderstood what Article 15 of the Convention means when it refers to an emergency that threatens “the life of the nation”. He agreed that Al-Qaeda might well have been a threat to the lives of individual people. But, he went on: “Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.”

This disagreement between Lord Hoffmann and the other eight judges reflects more than a dry, technical difference of opinion about the precise meaning of Article 15 of the Convention. Rather, Lord Hoffmann’s position was informed by his view about just how fundamental human rights are, and, therefore, about how easily they should give way to other considerations (such as a terror threat). Of course, this does not mean that the other Law Lords thought human rights were unimportant. Far from it. But they did disagree about the relative importance of individuals’ rights, on the one hand, and extent to – and circumstances in – which those rights should be capable of being sacrificed, or at least qualified, in order to secure other interests.

Was indefinite detention without trial necessary?

What about the second question, then? Was indefinite detention without charge or trial a necessary response to the “emergency” that the majority was prepared to acknowledge? The eight judges who thought there was a public emergency had to go on to decide whether the nature and seriousness of the emergency was sufficient to justify the particular step that had been taken – that is, indefinitely detaining foreign terror suspects without charge or trial. Seven of the eight judges said it was not. The Government had failed to show that such drastic steps were necessary. In particular, the Government had failed to show that lesser steps – such as surveillance, monitoring, and electronic tagging of suspects – would not have sufficed.

And, crucially, the Government had not adequately shown why the detention regime applied only to foreign terror suspects. As Lady Hale, one of the judges, pointed out, the logical inference was that some other – less drastic – way had been found of managing the threat posed by British suspects. And if it was not necessary to detain British suspects, it was hard to see why it was necessary to detain foreign – but equivalently dangerous – foreign suspects. The majority therefore concluded that the extra-judicial detention of foreign terror suspects had not been shown to be a necessary response to public emergency evidenced by the 9/11 attacks. It followed that the conditions for derogation set out in Article 15 of the Convention were not met – and that detainees’ right to liberty, under Article 5, remained in effect. And of course the provisions in the Anti-terrorism Act allowing for detention without trial were plainly inconsistent with that right.

The Human Rights Act 1998

To many people, the House of Lords’ conclusion in Belmarsh came as a real surprise. Not because the Government’s argument wasn’t weak – it clearly was. But because the court was prepared to recognise that weakness and condemn the Government’s position.Why was this surprising? Because previously, courts had almost invariably been extremely deferential to the Government on matters of national security. In other words, they had been generally unwilling to second-guess the Government when it asserted that some step or other had to be taken in order to uphold national security. And yet in the Belmarsh case, the House of Lords adopted quite a different approach.

The explanation (or at least a large part of it) for that change in attitude lies in the Human Rights Act 1998. That Act equips – indeed, requires – the courts to examine Government decisions and Acts of Parliament for compliance with human rights standards. And where the courts find that those standards have not been met, the Act entitles them to say as much. So when, in the Belmarsh case, the Government argued that the court should (in effect) mind its own business, and leave the Government to get on with protecting national security, the court had a clear and straightforward response. Things had changed. As Lord Bingham put it, the Human Rights Act “gives the courts a very specific, wholly democratic, mandate” to uphold human rights. In other words, courts will no longer accede to the argument that national security is none of their business – at least not when human rights are at stake. The Human Rights Act makes this the courts’ business.

Here, then, we see a shifting in the tectonic plates of the constitution, as power shifts from Parliament and the Government, on the one hand, to the courts, on the other. And that change in the bigger picture has profound consequences for ordinary people like the Belmarsh detainees. They found themselves, for the first time, able to challenge the balance struck by Parliament between the rights of individuals and the perceived interests of wider society. That, in turn, carves out a new role for law and for courts as a means of calling into question the choices that politicians have made, and raises some fundamental questions about the sort of constitution we have today.

In the third and final post, I will explain what the consequences of the Belmarsh judgment were, bearing in mind the fact that the UK Parliament is “sovereign”, meaning that, as a matter of domestic law, there is no limit upon the legislation it can enact. We will see that although this prevented the court from invalidating the legislation under which the detainees were held, the court was able to take steps that ultimately precipitated the repeal of that legislation. 

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