The Belmarsh Prison case — which arose from the UK’s treatment of foreign terror suspects following the 9/11 attacks in the USA — illustrates a series of fundamental points about how the UK constitution works, and provides an excellent starting-point for anyone who is interested in public law.
In three short videos on the Belmarsh Prison case — links to which can be found below — I aim to provide a brief and accessible introduction to public law in the UK, and to explain some of features of the British constitution that make studying it interesting and important. The Belmarsh case is used as a vehicle for exploring these issues.
The case is more formally known as A v Secretary of State for the Home Department. It was decided in 2004 by the Appellate Committee of the House of Lords (the forerunner of today’s United Kingdom Supreme Court). The case was brought by a number of foreign nationals who were held indefinitely in Belmarsh Prison in London because the British Government suspected them of being international terrorists. However, they had not been charged with — far less convicted of — any relevant criminal offence. Rather, they were imprisoned under special powers granted to the Government by the Anti-terrorism, Crime and Security Act 2001, which was enacted in the immediate aftermath of the events of September 11th 2001 in the United States.
Video 1: Setting the scene
The first of the videos sets the scene by explaining the background to and the effect of Part 4 of the Anti-terrorism, Crime and Security Act 2001 (which has since been repealed). The legislation was enacted at speed, in the immediate aftermath of the 9/11 attacks, and provided for the indefinite detention, without charge or trial, of suspected foreign terrorists who could not lawfully be deported. Although imprisoning people in such circumstances breaches the right to liberty in Article 5 of the European Convention on Human Rights, the UK Government argued that the right to liberty could, in effect, be suspended under Article 15 of the Convention, on the ground that there was a “public emergency threatening the life of the nation”.
Video 2: The House of Lords’ decision
In the second video, the judgment of the Appellate Committee of the House of Lords in the Belmarsh Prison case is considered. The issue for the House of Lords was whether Article 15 of the European Convention on Human Rights could be invoked so as to (in effect) suspend the right to liberty normally granted by Article 5 of the Convention, thereby avoiding any clash between that right and the Government’s powers under Part 4 of the Anti-terrorism, Crime and Security Act 2001 to detain certain foreign terror suspects. The House of Lords had to confront two key questions: whether there was a “public emergency threatening the life of the nation”, and, if so, whether indefinite detention of foreign suspects was a necessary and lawful response to it. While eight of the nine judges in the House of Lords acknowledged that there were a public emergency, a clear majority refused to accept that the steps taken in response to it had been shown to be necessary.
Video 3: The bigger picture
The final video considers the effect of the judgment of the Appellate Committee of the House of Lords in the Belmarsh Prison case. The Law Lords concluded that the right to liberty remained effective and that the powers to detain foreign terror suspects under Part 4 of the Anti-terrorism, Crime and Security Act 2001 breached that right. The Law Lords therefore issued a “declaration of incompatibility” under section 4 of the Human Rights Act 1998. Although that did not require Parliament to repeal (i.e. get rid of) the incompatible legislation, Parliament did in fact repeal it. It did so partly because the House of Lords’ judgment had placed Parliament under political pressure to bring UK law into line with the rights recognized in the ECHR, and partly because there was the possibility of litigation in the European Court of Human Rights that might ultimately have compelled the UK, under international law, to amend British law. This highlights the fact that that understanding UK public law involves grappling with the relationships between national and international law, and between law and politics.