Should the rights of terrorists be as valued as the rights of society?
Public law and constitutional law is commonly misconstrued as being just about the grander scheme of things, the workings of the nation and its interactions with other entities for example. But it is also equally about how that grand scheme of things affects real people and on occasion, these individuals happen to not be the majority but instead the marginalized and the unpopular. Should the law in such cases, therefore, allow the majority to subject these individuals to their whims, or is the duty of the law rather to prevent a tyranny of the majority at the expense of those who are disadvantaged and vulnerable? These were the questions at the core of A v Secretary of State for the Home Department, more popularly referred to as the Belmarsh Case.
The Belmarsh case was a notable UK human rights case heard before the House of Lords in 2004. It held that the indefinite detention of foreign prisoners in Belmarsh Prison without trial under section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the European Convention on Human Rights. The case – though an English one – had its roots in the terrorist attacks of September the 11th which induced widespread panic in the UK for it being a close strategic ally of the US meant that an attack on London of a similar scale was just as plausible as the attack on New York. This fear was what pushed the UK government in the weeks following the 9/11 attacks to speed up the passing of the Anti-terrorism crime and security act 2001, the provisions of which covered a number of things from covered police power to nuclear security. The relevant part of the act was part 4 (Immigration and Asylum) which provided for the Home Secretary to certify any non-British citizen whom he had reasonable suspicion of being terrorist to detain them indefinitely, pending deportation, even if and when such a deportation would be otherwise prohibited by law. A fair trial was not a requirement.
Unintuitive as it may have seemed to the UK government in the aftermath of the horror of the 9/11 attacks, the incontrovertible fact of the matter is that terror suspects and even terrorists are still human, and being human gives one certain fundamental rights, in this case, the right to liberty which has long been recognized by British law as well as European convention of human rights. Article 5 of the European Convention of Human Rights establishes clearly that "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law" and sets out certain extenuating circumstances in which this may be breached such as after 'lawful arrest' or 'conviction by a competent court' and criticisms of the Anti-Terrorism Crime and Security act was its blatant contravention of this. The response of the government was essentially the 'get out' clause in Article 15 of the European Convention of human rights - derogation in time of emergency which provided that "in time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation".
The UK government argued this in the climate after 9/11 and the very real possibility that a similar event could take place in London was equivalent to a public emergency that threatened the life of the nation and therefore justified the actions under the Anti-Terrorism Crime and Security act. The Belmarsh detainees obviously disagreed.
The case was decided by the Appellate Committee of the House of Lords in 2004. The right to liberty, as argued by the UK government, could be lawfully suspended as Article 15 of the European Convention on Human Rights was applicable. However, the crux of the matter was if this was indeed the case. Article 15 doesn't allow for arbitrary suspension of human rights by governments, and as mentioned has strict conditions. Although 8 of 9 of the law lords were of the opinion that given the rise of terrorism globally that was reasonably likely to affect the UK and in the case that it did it would be sufficiently catastrophic to amount to a public emergency that threatened the life of the nation, Lord Hoffman dissented. He posited that terrorist groups were a threat to individual lives, but not the life of the nation as he claimed, "I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda."
The eight Lords who did agree that there was a public emergency then had to decide if the steps taken by the government were in accordance with the severity of the situation or if they had overstepped the boundaries by implementing measures such as indefinite detention without charge or trial. Out of the eight Lords, seven disagreed that the steps taken by the government were in accordance with the severity of the 'threat'. The consensus was that the government had effectively failed to prove that that less extreme steps, for instance the increased monitoring and tagging of suspects, would not be effective. The greatest point of condemnation was as to why the act applied only to foreign suspects for if it wasn't necessary to detain equally dangerous British suspects in such a manner, why was this treatment applicable to foreigners?
The reason the outcome of the Belmarsh case was so notable was due to the fact that it was a deviation from the traditional behavior of the courts in the UK. In its judgment in Belmarsh, the court had shown it was more than willing to condemn the government's position when previously they had been typically deferential to the government when it came to issues national security. This was largely due to the implementation of the Human Rights Act in 1998 which required the court to evaluate and speak up if government acts and provisions were in accordance with the human rights statute and provide them with the democratic mandate to uphold human rights, making national security a part of their business, especially if human rights is concerned. The case marked the shifting of the degree of constitutional power from parliament and the executive to the courts.
Changes in the grand scheme of things that is covered by constitutional law has notable effects for real people, like the sixteen Belmarsh detainees, whom, because of this shift in constitutional power were able to decide to challenge the bargain the UK parliament had decided to strike between their rights, the rights of the disadvantaged, vulnerable individual and the rights of wider society.