The House of Lords has ruled that the UK
Government is in breach of the European Convention on Human Rights
(ECHR) by holding nine “suspected international terrorists” in
indefinite detention without trial.
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
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.