07/10/2025
Written by: Jack Boswell
Introduction
In December 2004, the House of Lords handed down its landmark decision in A v Secretary of State for the Home Department [2004] UKHL 56. Set against the backdrop of the post-9/11 “war on terror”, the case confronted a fundamental question of constitutional law: how far would a democracy bend its commitment to individual liberty in the face of a terrorist threat and acute political pressure?
Background
The case concerned 16 suspected terrorists, all of whom were foreign nationals, whom the UK government was detaining at HMP Belmarsh. None had been charged or tried. They were held under section 23 of the Anti-terrorism, Crime and Security Act 2001, which provided that “a suspected international terrorist may be detained … despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by (a) a point of law which wholly or partly relates to an international agreement, or (b) a practical consideration.”
The detainees argued that their indefinite detention violated Article 5 (the right to liberty) and Article 14 (the prohibition on discrimination) of the European Convention on Human Rights (the “ECHR”).
The government invoked Article 15 of the ECHR, which allows contracting states to suspend certain rights “in time of war or other public emergency threatening the life of the nation … to the extent strictly required by the exigencies of the situation.” It had made the Human Rights Act 1998 (Designated Derogation) Order 2001 (the “Derogation Order”), derogating from Article 5, in response to the 9/11 attacks. On this basis, the government argued that indefinite detention under section 23 was compatible with the ECHR.
Judgment
The majority of the House of Lords (Lord Hoffman dissenting – see below) accepted that there was a public emergency in the wake of 9/11. But that was only the first hurdle.
The key issue was whether the detention of foreign nationals without trial was “strictly required by the exigencies of the situation.” The majority (Lord Walker dissenting) found that it was not, so the derogation was not permissible. As Lord Bingham held in his leading judgment, section 23 was disproportionate because it was not rationally connected to the threat from Al-Qaeda: it applied only to foreigners, even though British nationals posed similar risks; it allowed suspects to leave the country, where (if they were indeed terrorists) they could continue to threaten the UK; and it was not narrowly tailored to the specific threat posed by al-Qaeda. There had therefore been a breach of Article 5.
The House of Lords also held that the suspects’ detention breached Article 14, from which the government had not derogated, because there was no justification for detaining only those suspected terrorists who were foreign nationals. In so holding, Baroness Hale stated that: “Democracy values each person equally. In most respects, this means that the will of the majority must prevail. But valuing each person equally also means that the will of the majority cannot prevail if it is inconsistent with the equal rights of minorities.” [237]
Lord Hoffmann went further still, rejecting the government’s claim that there was a public emergency: “The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.” [97]
The House of Lords therefore quashed the Derogation Order and declared that section 23 was incompatible with Articles 5 and 14.
Immediate consequences
The government responded by rushing the Terrorism Act 2005 through Parliament in 17 days, which repealed section 23 and created the Control Order regime for dealing with suspected terrorists. This regime made provision for severe restrictions on liberty – such as house arrest, curfews, and bans on communication – and was subject to subsequent litigation in Secretary of State for the Home Department v JJ [2007] UKHL 45.
Legacy
The Belmarsh case is remembered not only for its immediate outcome but for its deeper constitutional significance. It showed that the Human Rights Act could be a meaningful constraint on executive power, even in areas such as national security, which have traditionally been marked by judicial deference.
Lord Bingham’s judgment is also notable for its structured proportionality analysis: he asked himself “whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.” [30] Later, in Huang v Secretary of State for the Home Department [2007] UKHL 11, [19], he added a fourth question: whether the measure strikes “a fair balance between the rights of the individual and the interests of the community”. This four-stage test was then formulated authoritatively by Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39, [20].
After his retirement, Lord Bingham selected the Belmarsh case as the most important he had decided, citing Benjamin Franklin’s admonition that “he who would put security before liberty deserves neither.” Lord Steyn – who was forced by the government to recuse himself from the case, owing to his previous criticism of the “legal black hole” of Guantanamo Bay – was more effusive. He described Lord Bingham’s judgment as “the most eloquent and magisterial rebuke” to an Attorney General since Lord Denning quoted the words of Thomas Fuller: “Be you ever so high, the law is above you.”
The detainees were represented by Ben Emmerson KC, Phillipe Sands KC (then members of Matrix) and Raza Husain KC (then and current member of Matrix).
Liberty, who intervened in the case, were represented by Rabinder Singh KC (then a member of Matrix, now a Lord Justice of Appeal) and Alex Bailin KC (then and current member).