Liberty v. Security - UK anti-terrorism legislation, the ECHR and the House of Lords

AuthorNiamh Hayes
PositionLL.B. Trinity College, Dublin
Pages106-129
LIBERTY
V.
SECURITY
-
UK
ANTI-TERRORISM
LEGISLATION,
THE
AND
THE
HOUSE
OF
LORDS
NIAMH HAYES*
In
a
landmark decision
handed
down
in
London
on
16th December
2004,
the
House
of
Lords found
in
favour
of
a
legal
challenge
against
a
provision
of
the
UK
Government's
anti-terrorism
legislation,
on
the
grounds that
it
was
in
breach
of
both
national
and
international
human
rights
obligations.t
The
case
of
A(FC)
&
Others
v.
Secretary
of
State
for
the
Home
Department'
involved
a
challenge to
the
statutory
power
granted
to the
Home
Secretary
to
order
the indefinite
detention without
trial
of
foreign
nationals
suspected
of
involvement
in
international terrorism.
An
unprecedented,
specially
commissioned
panel
of
nine
Law
Lords
heard
the
case,
due to
the
striking
significance not only
of
the
issues
to
be
decided,
but
also
the
constitutional
and
political
implications
of
any
such decision.
In
an
8-1
majority
judgment,
the
Court
found
that
the
impugned
power
was
in
breach
of
both
the
European
Convention
of
Human
Rights
(ECHR)
and
the
Human
Rights
Act
1998.
That
power,
arising under
Section
23
of
the
Anti-Terrorism,
Crime
and Security Act
2001
(the
ATCSA), was
touted
by
the
Government
and
Home
Department
as
a
necessary
weapon
in
the
fight
against
international
terrorism, which
in
the aftermath
of
September
1 th was
a
matter
of
urgent
priority. However,
despite
the
Government's
seemingly
lawful
derogation
from the
relevant
provisions
of
the
the
spectre
of
suspects
being
held
in
indefinite detention
on
British soil,
without having
been charged
with
any
criminal
offence,
seemed
destined
to give
rise
to legal
challenge.
Human rights
groups
immediately lobbied
against the
measures,
and
both
international
authorities
and
two
subsequent parliamentary
review
"
LL.B.
Trinity
College,
Dublin.
I
would
like
to
thank
Ms.
Cliodhna
Murphy
and
Ms.
Moya
Moore
for
their helpful
suggestions
on
an
earlier
draft
of
this
article.
Any
errors
or omissions
are
entirely
my
own.
t
At
the
time
this
article
went
to
print,
proposed
changes
were
still
being considered
to
the
UK
anti-terrorism
legislation to
reflect
the
Court's
decision
in this
case.
While
every
effort
was
made
to
provide
the
most
current information
possible,
some
developments may
have
occurred
since
the
time
of
writing
which
are
not
reflected
in
this
article.
[2004]
UKHL
56
(hereinafter
(A)FC).
Q 2005
Niamh
Hayes
and
Dublin
University
Law
Society
House
of
Lords
Anti-Terror
Ruling
committees
had
expressed
the
gravest
of
reservations
about
the legality
of
the
legislation
and
advised
immediate
repeal.
2
Inevitably,
the
case
came
before
the
House
of
Lords
from
the
Court
of
Appeal,
who
in
October 2002
had
reversed
a
previous ruling
by
the
Special
Immigration
Appeals
Commission,
finding the legislative
provisions
on
indefinite
detention
to be
fully
compatible
with
the
UK's
human
rights legislation
and
obligations.
After
hearing
weeks
of
submissions
and
a
full
review
of
the
factual and
legislative background
to
the
case,
a
majority
of
the
House
of
Lords found
they
were
unable
to
agree
with
this
finding
and issued
a declaration
of
incompatibility
against the
ATCSA
legislation.
This
decision, although the only
available
remedy
to
the
Court,
has
brought
about
a
controversial
and deeply
unsatisfactory
situation,
whereby
a
statutory
provision
has
been
found
incompatible
with
Convention
law
but
cannot
forcibly
be
declared
invalid.
The
ATCSA
legislation
will
therefore
remain
in
force
and
in
continuing
breach
of
human
rights
law
until
the
Government
and
the
Home
Office
reverse
their
present
stance
and
choose
to
amend
or repeal
the
Act
in
order
to
satisfy
the
concerns
of
the Court.
The
outcome
of
the
case was
long
awaited, raptly
observed
and
eagerly
dissected.
For
some,
the
judgment
of
the
House
of
Lords was
a
triumphant
affirmation
of
the
inalienable
nature
of
fundamental rights,
such
as
the
rights
to
liberty,
to
fair
procedures,
and
to
not
be
discriminated
against
on
the
grounds
of
nationality.
To
others,
it
seemed
an
ill-advised
attempt
to
curb
an
unpleasant
but
crucial
security policy
at
a
time
of
national
emergency,
by
a
court
acting
outside
their
constitutional mandate.
Still
others
found
the
decision
a
hamstrung
judiciary
to
be
a
damning
indictment
of
the
ineffective and
perfunctory
nature
of
the
Court's
powers
to
enforce
Convention
rights,
even
after
their
incorporation
by
the
Human
Rights
Act
1998.
However,
irrespective
of
the
varying opinions
on its
exact
implications,
it
was
uniformly
apparent
that the
A(FC)
judgment
was
"one
of
the
most
important
decisions
from
Britain's
highest court
in 50
years".'
In
this article,b I
intend.
to
fully
explore
both
the
legal
issues
and
jurisprudential
reasoning
within
this
decision;
to
assess
its
wider
implications
for
the
separation
of
powers,
security
policy
and
human
rights
2
These
groups
included
the
United
Nations
Committee
Against Torture
and
the
Council of
Europe
Commissioner
for
Human
Rights.
Within
the
UK
both
the
Privy
Counsellor
Review
Committee
(referred
to in
the
judgment
as
the
'Newton
Committee')
and
the
Joint
Human
Rights
Committee
of
the
Parliament
produced reports which were
highly
critical
of
the
2001
legislation.
3
Dyer,
White
and Travis, "Judges'
Verdict
on
Terror
Laws
Provokes Constitutional
Crisis"
The
Guardian,
17
December
2004.
2005]

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT