THE BELMARSH CASE

Richard Clayton QC

The House of Lords’ decision in A v Secretary of State for the Home Department is rightly regarded as a constitutional case of the highest importance. The war on terror following the attack on the World Trade Centre on 9/11 created a febrile political backdrop to the case. In April 2004 the Home Secretary, David Blunkett, criticised the Special Immigrations Appeal Commission’s decision to release on bail one of the appellants in the case as “extraordinary”, adding that others might call it “bonkers”. Against that background, a nine judge panel of the House of Lords addressed a number of difficult issues, demonstrating that the Human Rights Act 1998 (HRA) had fundamentally recast basic public law principles. They examined the lawfulness of preventative detention of non-nationals on national security grounds, a subject area where the English courts have traditionally been highly deferential to executive decision making. However, a challenge made under the Human Rights Act 1998 raised new legal possibilities, which went well beyond traditional administrative law principles, demonstrating that Parliament cannot insulate itself altogether from a public law challenge where Convention rights are, themselves, breached. Under the HRA the Courts are entitled to declare that legislation is incompatible with Convention rights, leaving it to Parliament to make the ultimate decision as to remedy the breach by making a remedial order under s 10 of the HRA, as Parliament, in fact, felt obliged to do by repealing the regime that the House of Lords criticised.

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