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A and others v Secretary of State for the Home Department [2004] UKHL 56 is a UK human rights case heard before the House of Lords. It held that the indefinite detention of foreign prisoners in Belmarsh without trial under the section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the European Convention on Human Rights. The case should not be confused with the case A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, which relates to the use of evidence obtained by torture in British courts.
Facts The case began with 10 men who challenged a decision of the Special Immigration Appeals Commission to eject them from the country on the basis that there was evidence that they threatened national security. Of the 10 appellants, all except 2 were detained in December 2001; the others were detained in February and April 2002 respectively. All were detained under the Anti-terrorism, Crime and Security Act 2001.[1] Part 4 of the Act provided for their indefinite detention without trial and deportation. However, the power was only applied to non-British nationals. Under section 25 of this Act, they had the right to appeal to the Special Immigration Appeals Commission against their detention.[2] Judgment The House of Lords held by a majority (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Carswell) that, whilst their detention was lawful under the ATCSA 2001, section 23 was incompatible with the articles of the European Convention on Human Rights. As a consequence, the House of Lords made a declaration of incompatibility under section 4 of the Human Rights Act 1998, and allowed the appeals. Lord Hoffmann dissented in strong terms, but agreed that the appeals should be allowed. Whereas the majority argued that the 2001 Act was contrary to the ECHR because it discriminated between nationals and foreign nationals (Art.14 ECHR), Lord Hoffmann stated that the whole scheme was incompatible with the United Kingdom's constitution, and its commitment to human rights (especially Art.5 and Art.6). He dismissed the government's argument that under the ECHR and HRA it was possible to derogate from the ECHR's general provisions. His view was that the test, that there is a "threat to the life of the nation" was not fulfilled. Lord Walker of Gestingthorpe also dissented, but would have dismissed the appeal. In his opinion, the discrimination was justified due to "sound, rational grounds for different treatment". While the indefinite detention provisions were a "grave concern", they were "necessary" and accompanied by "several important safeguards against oppression". He therefore held that Part 4 of the 2001 Act was "proportionate, rational and non-discriminatory". Significance Parliament decided to replace Part 4 of ATCSA 2001 with the Prevention of Terrorism Act 2005.[1] This allows anyone of any nationality to be subjected to a control order. See also - A v Secretary of State for the Home Department [2005] UKHL 71, on the admissibility of evidence obtained by torture.
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