A and Others v Secretary of State for the Home Department [2004] UKHL 56

Facts

After the September 2001 attacks, the UK derogated from part of Article 5 of the European Convention on Human Rights. Nine foreign nationals were certified as suspected international terrorists and detained under section 23 of the Anti-terrorism, Crime and Security Act 2001. The legislation permitted their detention without trial where they could not for the time being be removed from the UK. They challenged the derogation and the detention scheme. The Special Immigration Appeals Commission accepted the discrimination challenge, but the Court of Appeal reversed its decision.

Issue

Was detention under section 23 strictly required by a public emergency within Article 15 of the Convention? Did the scheme discriminate on grounds of nationality or immigration status contrary to Article 14, read with Article 5?

Decision

The House of Lords allowed the appeals. A majority accepted that there was a public emergency threatening the life of the nation, but the detention scheme was disproportionate. It applied only to foreign nationals, although British nationals could present the same threat, and less restrictive measures were available. Lord Bingham distinguished the government’s assessment of the threat from the courts’ responsibility to decide whether the measures were proportionate.

The House quashed the Human Rights Act 1998 (Designated Derogation) Order 2001. It declared under section 4 of the Human Rights Act 1998 that section 23 was incompatible with Articles 5 and 14 insofar as it was disproportionate and permitted discriminatory detention. The declaration left the legislation in force and did not itself order anyone’s release.

Reported citations: [2005] 2 AC 68, [2005] 2 WLR 87

Source: Full judgment

Later proceedings

The European Court of Human Rights considered related claims in A and Others v United Kingdom (application no. 3455/05) in 2009.