The Belmarsh Case: How it instigated a shift away from judicial deference and towards greater judicial scrutiny
For reference only
NOTE: This is an essay submitted for an assignment on public and constitutional law. The page is for reference only, as my peers and I have already received our marks for the assignment and the course has ended (your girl passed with distinction).
This assignment has been assessed and falls in the 85-100 per cent range where marking is based on:
the knowledge and understanding of:
judicial review and constitutional principles and characteristics
the content of legal and academic sources
the skill to:
find and evaluate relevant and appropriate primary and secondary sources
structure and support a legal argument
This essay evaluates how the principles of law from the selected case, A v Secretary of State for the Home Department [2004] UKHL 56, have added to or changed the law in the following aspects of the UK Constitution: parliamentary sovereignty, rule of law, separation of powers, and human rights. The primary criticisms on this essay is on editing and refining, although “ineligences were few.” This can be observed, for example, in the first paragraph, where a sentence ran 65 words long. The second thing is to also related to length: avoid long quotes.
In this version below, the referencing format is changed to streamline everything into a footnote list—as opposed to footnotes for legal sources and reference list for general academic sources. The first mention of primary sources (case laws, legistlations, etc.) are also hyperlinked to give you direct access to them.
The case of A v Secretary of State for the Home Department,1 also known as the Belmarsh case, represents a pivotal moment in the evolution of constitutional law in the United Kingdom. By examining its background and context, exploring the key constitutional principles considered in the ruling, and analysing its legislative and judicial aftermath, the Belmarsh case shows that its legal principles have instigated a notable shift away from judicial deference and towards greater judicial scrutiny of executive actions, especially in matters pertaining to rule of law, human rights, and parliamentary sovereignty where national security is concerned. This decision, concerning the indefinite detention without charge of suspected international terrorists at HM Prison Belmarsh under the Anti-terrorism, Crime and Security Act 2001 (ATCSA),2 has significantly reshaped the understanding and application of fundamental principles within the UK’s constitutional framework.
The Belmarsh case arose in the wake of the 11 September 2001 terrorist attacks in the United States, a period of heightened national security concerns during which the UK government sought to bolster its counter-terrorism measures (Kavanagh, 2011). Part 4 of the ATCSA was enacted, allowing for the indefinite detention of foreign nationals suspected of involvement in terrorism-related activities, without charge or trial if they could not be deported. While it seemed to be a violation of human rights under the European Convention on Human Rights (ECHR),3 the government relied on Article 15 of the ECHR,4 which permits derogation from certain rights where a public emergency threatening the life of the nation justified these exceptional measures (Kavanagh, 2011).5 The appellants in the Belmarsh case were certified as suspected international terrorists by the Home Secretary under section 21 of the ATCSA.6 This designation in turn permitted their detention under section 23 of the ATCSA.7 However, the appellants argued that their detention was unlawful and incompatible with their human rights as it violated Articles 5 and 14 of the ECHR.8 The case reached the House of Lords, which at that time was the highest court of appeal in the UK. The House of Lords had to determine if the conditions for derogating from Article 5 were met, and if so, whether the provisions of the ATCSA relating to executive powers of indefinite detention without trial was “strictly required by the exigencies of the situation,” as required by Article 15.9 At stake was the balance between national security and individual liberties, and the extent to which the government could infringe upon fundamental rights in the name of protecting the public. In a majority decision, the panel of nine quashed the derogation order and declared the detention under Part 4 of the ATCSA was incompatible with the ECHR. The House of Lords, in its ruling, upheld the rule of law while addressing the standard of judicial review and the application of human rights principles in the context of national security.
One of the most significant constitutional principles reinforced by the Belmarsh case is the primacy of the rule of law, which dictates that everyone, including the government, is subject to and accountable under the law (Stanton and Prescott, 2022, p. 75).10 The House of Lords, in its majority opinion, highlighted that “indefinite imprisonment without charge or trial is an anathema in any country which observes the rule of law.”11 Lord Nicholls of Birkenhead asserted that such detention “deprived the detained person of the protection a criminal trial is intended to afford” and that “wholly exceptional circumstances must exist before this extreme step can be justified.”12 This statement stressed that the government’s power to detain individuals must be exercised in accordance with due process and legal safeguards, even in times of emergency. The insistence on due process and legal safeguards reflected a commitment to the rule of law, ensuring that the government’s response to the threats of terrorism did not undermine the very values it sought to protect. The ruling demonstrated a shift in the law where “the courts are more ready and willing to investigate executive action and can fulfil their role more fully in upholding the rule of law”’ by holding the government accountable to legal standards and requiring it to justify any infringement on individual liberties (Stanton and Prescott, 2022, pp. 114-115).13 This emphasis on affirming the rule of law, even in the face of national security concerns, served as a protective measure against arbitrary or oppressive state action, thereby safeguarding the foundations of the UK constitution.
Human rights, particularly the right to liberty, play a key role with regards to the rule of law principle, as the Belmarsh case served to demonstrate. Previously, whenever the interest of national security clashed with the rule of law, national interest came out on top in case judgments, but in recent years, such statements were often accompanied by caveats that the courts have a “countervailing duty” to protect the rights of individuals (Murray, 2016, p. 92).14 The Belmarsh case significantly elevated the importance of human rights within the UK’s constitution, as enshrined in the ECHR and made part of the UK’s domestic law by the Human Rights Act 1998 (HRA).15 Lord Bingham of Cornhill stated that the duty of the House was to decide whether the appellants’ legal challenge, based on the ECHR, was soundly based,16 thereby highlighting the human rights dimension within the UK’s constitutional framework by enabling individuals to use the courts to challenge government actions that infringe fundamental rights. The House of Lords declared that the indefinite detention of the appellants was incompatible with Article 5 of the ECHR, which protects the right to liberty.17 Despite Article 15 that allows states to derogate from certain rights during public emergency, the House of Lords held that the indefinite detention of foreign nationals was disproportionate because it was not “strictly necessary” to achieve the stated aim of protecting national security.18 Lord Hoffmann, while agreeing with the majority, went further, stating that since there was no “war or other public emergency threatening the life of the nation within the meaning of Article 15,” there was no need to address the subsidiary question on proportionality.19 He invoked the UK constitution to guard against the deportation instead, thus utilising the constitution as a fail-safe (Lally, 2018).20 The majority decision underscored the fundamental nature of individual liberty as a right that cannot be arbitrarily curtailed in the context of national security. The judgment emphasised the importance of human rights by subjecting the government’s actions to scrutiny under the ECHR and protecting the right to liberty as a cornerstone of constitutional protection. Additionally, the consideration of proportionality elevated human rights standards, ensuring that the government’s response to security threats is tempered by respect for individual dignity and fundamental freedoms.
The Belmarsh case additionally highlighted the human right principle of non-discrimination, which prohibits treating similarly situated individuals differently based on certain protected characteristics, such as nationality or immigration status, under Article 14 of the ECHR.21 Lord Nicholls noted that the extended power of detention conferred by Part 4 of the ATCSA applied only to those who are not UK citizens.22 The House of Lords found that this was discriminatory because it applied only to non-nationals, while suspected terrorists who were UK nationals were not subject to the same measures, and declared that, in this regard, the detention in the Belmarsh case was incompatible with Article 14.23 This principle reflected a commitment to equality before the law, ensuring that all individuals are treated fairly and without bias. The Belmarsh case judgment supported the prohibition of discrimination under Article 14 by striking down a detention practice that unfairly targeted non-UK nationals, thereby upholding the ideal of equal treatment under the law. This emphasis on non-discrimination ensures government actions to security threats do not create or perpetuate unjust disparities in treatment, thereby maintaining a fair and inclusive society.
The effect of the Belmarsh case has been marked by significant legislative and judicial developments, all while honouring parliamentary sovereignty. In the UK, the foundations of judicial review began on shaky terms where judges adopted an attitude of judicial deference, as they felt those in political power should be allowed to make decisions without judicial interference (The Open University (OU), 2024a, 3.2).24 Lally (2018)25 argued that the reluctance stemming from the courts were out of respect for parliamentary sovereignty. This is even truer where matters of national security were concerned, although Kavanagh (2011)26 noted that there had been a subtle shift in recent years. It was only the past 50 to 60 years that witnessed “a move from a more deferential approach that prized parliamentary sovereignty to a more active form of judicial review” (OU, 2024b, 5).27 Kavanagh (2011) and Murray (2016) further posited that the enactment of the HRA altered the relationship between the executive and the judiciary, bringing to prominence the right to liberty within judicial thinking, even in emergency contexts. The Belmarsh case involved a declaration by the House of Lords that the indefinite detention of suspected international terrorists, under Part 4 of the ATCSA was incompatible with the ECHR. This declaration of incompatibility, made under section 4 of the HRA,28 although not legally binding, had a significant legislative impact. It put pressure on the government and parliament to remedy the matter (Murray, 2016).29 In this particular case, it led to the replacement of Part 4 of the ATCSA through the introduction of control orders under the Prevention of Terrorism Act 2005 (PTA),30 which allowed for anyone of any nationality to be subjected to it (Marong 2014).31 Secretary of State for the Home Department v JJ and Others32 was a significant House of Lords case that tested the limits of the control orders imposed under the PTA. The case focused on whether the restrictions placed on individuals through these control orders amounted to a deprivation of liberty. The House of Lords noted that in an earlier judgment,33 Sullivan J considered the control orders, even though it was in force for only twelve months at a time, as an indefinite duration and deprived the respondents of their liberty, breaching Article 5 of the ECHR.34 The House of Lords also noted that the Secretary of State’s appeal against Sullivan J’s judgment was dismissed by the Court of Appeal, who found the judge’s reasoning that the orders should be quashed to be compelling.35 Subsequently, the House of Lords, in a majority judgment, reiterated that the judge highlighted human rights concerns, such as confining a controlled person to a flat for 18 hours a day, as “the antithesis of liberty and more akin to detention in an open prison,” and amounted to a deprivation of liberty.36 This demonstrated the impact of the Belmarsh case, reflecting a broader trend in UK constitutional law towards greater recognition and enforcement of human rights standards. The PTA was later repealed in 2011 and replaced by section 1 of the Terrorism Prevention and Investigation Measures Act 2011,37 which abolished control orders but provided some powers to the Home Secretary to impose restrictions on the behaviour specified individuals, albeit to a lesser degree (Marong 2014).38 As evident, the Belmarsh case established key principles that directly influenced the legal arguments and the ultimate judgment in JJ, as well as legislative developments that further clarified the boundaries of the state's power to restrict individual liberty in the name of national security, while maintaining parliamentary sovereignty.
The principles of law established in the Belmarsh case have had a profound and multifaceted impact on the UK constitution. The case reinforced the importance of the rule of law, human rights, parliamentary sovereignty, as well as judicial scrutiny. It affirmed that the courts have a crucial part to play in protecting human rights and helped to define the constitutional role of the judiciary in adjudicating matters of national security while upholding the rule of law and parliamentary sovereignty. It has led to ongoing efforts between the executive, legislature, and judiciary to refine the appropriate balance between national security and individual rights, reflecting a dynamic process of constitutional interpretation and application, shaped by evolving security challenges and changing societal values.
European Convention for the Protection of Human Rights and Fundamental Freedoms art 15
Kavanagh, A. (2011) ‘Constitutionalism, counterterrorism, and the courts: Changes in the British constitutional landscape’, International Journal of Constitutional Law, 9(1), pp. 172-199. Available at: https://academic.oup.com/icon/article/9/1/172/902301 (Accessed: 26 February 2025).
Anti-terrorism, Crime and Security Act 2001 s 21
Anti-terrorism, Crime and Security Act 2001 s 23
A v Secretary of State for the Home Department [2004] UKHL 56 [73]
European Convention for the Protection of Human Rights and Fundamental Freedoms art 15
Stanton, J. and Prescott, C. (2022) Public law. 3rd edn. Oxford: Oxford University Press, p. 75.
A v Secretary of State for the Home Department [2004] UKHL 56 [74]
A v Secretary of State for the Home Department [2004] UKHL 56 [74]
Stanton, J. and Prescott, C. (2022) Public law. 3rd edn. Oxford: Oxford University Press, pp. 114-115.
Murray, C.R.G. (2016) ‘Nudging or fudging? The UK courts’ counterterrorism jurisprudence since 9/11’, Journal of Conflict & Security Law, 21(1), p. 92 Available at: https://academic.oup.com/jcsl/article/21/1/91/2357670 (Accessed 24 February 2025).
A v Secretary of State for the Home Department [2004] UKHL 56 [3]
A v Secretary of State for the Home Department [2004] UKHL 56 [73]
A v Secretary of State for the Home Department [2004] UKHL 56 [73]
A v Secretary of State for the Home Department [2004] UKHL 56 [97]
Lally, H.K. (2018) ‘Fair trial, judicial dancing, and the HRA’, Queen Mary Law Journal, 9, pp. 67-76. Available at: https://heinonline.org/HOL/P?h=hein.journals/qmlj9&i=69 (Accessed: 24 February 2025).
European Convention for the Protection of Human Rights and Fundamental Freedoms art 14
A v Secretary of State for the Home Department [2004] UKHL 56 [76]
A v Secretary of State for the Home Department [2004] UKHL 56 [184]
The Open University (2024a) ‘Unit 12: Judicial review’. W211 Public law. Available at: https://learn2.open.ac.uk/mod/oucontent/view.php?id=2318802§ion=3.2 (Accessed: 28 February 2025).
Lally, H.K. (2018) ‘Fair trial, judicial dancing, and the HRA’, Queen Mary Law Journal, 9, pp. 67-76. Available at: https://heinonline.org/HOL/P?h=hein.journals/qmlj9&i=69 (Accessed: 24 February 2025).
Kavanagh, A. (2011) ‘Constitutionalism, counterterrorism, and the courts: Changes in the British constitutional landscape’, International Journal of Constitutional Law, 9(1), pp. 172-199. Available at: https://academic.oup.com/icon/article/9/1/172/902301 (Accessed: 26 February 2025).
The Open University (2024b) ‘Unit 12: Judicial review’. W211 Public law. Available at: https://learn2.open.ac.uk/mod/oucontent/view.php?id=2318802§ion=5 (Accessed: 7 March 2025).
Human Rights Act 1998 s 4
Murray, C.R.G. (2016) ‘Nudging or fudging? The UK courts’ counterterrorism jurisprudence since 9/11’, Journal of Conflict & Security Law, 21(1), pp. 91-113 Available at: https://academic.oup.com/jcsl/article/21/1/91/2357670 (Accessed 24 February 2025).
Marong, C. (2014) ‘Protecting the public? Challenging the indefinite preventive detention of non-citizens’, UCL Journal of Law and Jurisprudence, 3(1), pp. 115-143. Available at: https://uk.westlaw.com/Document/I5E565EA0616411E4B5CEDE779ACF3429/View/FullText.html (Accessed: 24 February 2025).
Secretary of State for the Home Department v JJ and Others [2007] UKHL 45 [21]
Secretary of State for the Home Department v JJ and Others [2006] EWCA Civ 1141
Secretary of State for the Home Department v JJ and Others [2007] UKHL 45 [21]
Marong, C. (2014) ‘Protecting the public? Challenging the indefinite preventive detention of non-citizens’, UCL Journal of Law and Jurisprudence, 3(1), pp. 115-143. Available at: https://uk.westlaw.com/Document/I5E565EA0616411E4B5CEDE779ACF3429/View/FullText.html (Accessed: 24 February 2025).