The case A v Secretary of State for the Home Department [2004] UKHL 56¹ was a landmark decision by the House of Lords, which held that the indefinite detention of foreign suspects of terrorism without trial under section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the European Convention on Human Rights (ECHR).
The case involved nine appellants who were detained under the 2001 Act as suspected terrorists, but could not be deported because they faced a risk of torture in their home countries. They challenged their detention on the grounds that it violated their rights under article 5 (right to liberty) and article 14 (prohibition of discrimination) of the ECHR.
The House of Lords, by a majority of eight to one, allowed their appeals and made a declaration of incompatibility under section 4 of the Human Rights Act 1998, which incorporated the ECHR into UK law. The majority reasoned that section 23 of the 2001 Act was disproportionate and discriminatory, as it only applied to foreign nationals and not to British citizens who posed the same threat. The majority also rejected the argument that the courts should defer to the executive and the parliament on matters of national security, and affirmed their duty to uphold the rule of law and protect human rights.
The case was significant for several reasons:
- It was the first time that the House of Lords made a declaration of incompatibility under the Human Rights Act 1998, which showed the limits of parliamentary sovereignty and the strength of judicial review.
- It was a rare instance of judicial dissent by Lord Hoffmann, who went further than the majority and argued that section 23 of the 2001 Act was not only incompatible with the ECHR, but also with the UK constitution and its commitment to human rights.
- It sparked a public debate on the balance between security and liberty, and prompted the government to replace section 23 of the 2001 Act with a new regime of control orders under the Prevention of Terrorism Act 2005, which applied to both British and foreign suspects.
- A v Secretary of State for the Home Department [2004] UKHL 56 – Case Summary
- A v Secretary of State for the Home Department – Wikipedia
- A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department
- A v Secretary of State for the Home Department – Wikiwand
- A and Others v UK – Belmarsh Case – LawTeacher.net
(1) A v Secretary of State for the Home Department [2004] UKHL 56. https://lawprof.co/public-law/proportionality-review-cases/a-v-secretary-of-state-for-the-home-department-2004-ukhl-56/.
(2) A v Secretary of State for the Home Department [2004] UKHL 56. https://lawprof.co/public-law/proportionality-review-cases/a-v-secretary-of-state-for-the-home-department-2004-ukhl-56/.
(3) A v Secretary of State for the Home Department – Wikipedia. https://en.wikipedia.org/wiki/A_v_Secretary_of_State_for_the_Home_Department.
(4) A (FC) and others (FC) (Appellants) v. Secretary of State for the Home …. https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand-1.htm.
(5) A v Secretary of State for the Home Department – Wikiwand. https://www.wikiwand.com/en/A_v_Secretary_of_State_for_the_Home_Department.
(6) A and Others v UK – Belmarsh Case – LawTeacher.net. https://www.lawteacher.net/cases/a-and-others-v-uk.php.
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