• In the case of A v Secretary of State for the Home Department [2004] U.K.H.L 56, it was held that the Crime and Security Act 2001 sections 21 and 23 was disproportionate to the Human Rights Act 1998 and permitted the detention of people who did not represent a threat to UK security. Section 23 was incompatible with the 1998 Act as it allowed detention of suspects in a way that discriminated on the grounds of nationality. 

Facts of the Case

  • Following the September 11 attacks, Parliament introduced Part 4 of the Anti-terrorism, Crime and Security Act 2001.
  • Section 21 allowed D to issue certificates in respect of peoples they reasonably suspected to be terrorists.
  • Section 23 allowed for suspected terrorists to be detained, even if their departure from the UK is prevented by a point of law or practical considerations.
  • As such, detainments under the 2001 Act could go on indefinitely, and only applied to non-British nationals.
  • C consisted of 9 men who were detained without trial under the 2001 Act from December 2001 to April 2002. All 9 men were to be removed from the UK.
  • C appealed to the Special Immigration Appeals Commission (SIAC) and the Court of Appeal as the 2001 Act was incompatible with the Human Rights 1998, but neither court allowed the appeal.

Issues

  • Was section 21 disproportionate, meaning the aim of the 2001 Act could be achieved without restricting a person’s fundamental right to freedom?
  • Was section 23 discriminatory because it only allowed for the detention of non-UK nationals?

Held by the House of Lords

  • Finding for C, whilst C’s detention was lawful under the 2001 Act, section 23 of the Act was incompatible with the European Convention on Human Rights. Section 21 was disproportionate because it did not address the threat UK nationals posed. The Court made a declaration of incompatibility under the 1998 Act.

Lord Bingham

  • C argued that there had been no public emergency threatening the life of the nation that would justify their detainment. The emergency was not actual or imminent, nor was it of a temporary nature. The practice of other European states strongly suggested there was no public emergency calling for derogation.
  • Great weight should be given to the judgment of the Home Secretary and Parliament because they were called on to exercise a pre-eminently political judgment. This involved a factual prediction of what various people around the world might do. Any prediction about the future behaviour of human beings is necessarily problematic.
  • It is the function of political and not judicial bodies to resolve political questions. The greater the legal content of any issue, the greater the potential role of the court, because it is the function of the courts and not of political bodies to resolve legal questions.
  • After analysis, it appears that the derogating measures of section 21 allows both for the detention of those presenting no direct threat to the UK and for the release of those of whom it is alleged that they do. Such a paradoxical conclusion is hard to reconcile with the strict urgent demands of the situation.
  • “It follows from this analysis that C are in my opinion entitled to invite the courts to review, on proportionality grounds, the Derogation Order and the compatibility with the Convention of section 23 and the courts are not effectively precluded by any doctrine of deference from scrutinising the issues raised…It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts to take account of relevant Strasbourg jurisprudence, has required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected and the remedy lies with the appropriate minister, who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate” [42].