The detention by the UK Government of nine suspected terrorists was made under powers given in the Anti-Terrorism, Crime and Security Act (ATCSA). The Act, passed in the wake of the September 11 bombings allows the Secretary of State to order indefinite detention without charge on suspicion of terrorism. Detainees are not given access to the evidence against them on the grounds that to do so would threaten national security. The Act applies only to non-British nationals and not to UK nationals. The men currently detained are all Muslim immigrants and have been held in Belmarsh prison in London, some for as long as 3 years.
To pass the Act, the UK had to withdraw from part of the ECHR through a special derogation Order. It was the validity of this Order which came into question before the Lords. The Convention gives states the right to derogate:
- "in times of war or public emergency threatening the life of the nation" but only
- "to the extent strictly required by the exigencies of the situation".
- Any measures taken must not be "inconsistent with [the contracting party’s] obligations under international law."
The conclusion of the 8-1 majority of the Law Lords was that the UK Government had not acted within the constraints of the derogation right. While they did not dispute that the public emergency criterion was fulfilled, they ruled that because the Act only applied to immigrants it was not consistent with the second two requirements: it was not proportionate to the situation and it was discriminatory. The Lords quashed the Derogation Order and declared the ATCSA to be incompatible with the human rights convention.
Despite the ruling on December 16, the prisoners have not been released. The new Home Secretary, Charles Clarke, stated that the detainees would remain in Belmarsh unless and until Parliament changed the law. A senior judge has since resigned in protest and more are expected to follow.
