Britain's Highest Court Rules Against Detention of Terrorist Suspects

In a striking and important decision, Britain’s highest court has ruled that a law permitting the detention of foreign terrorist suspects without trial represents a violation of basic human rights.  The Court’s ruling, delivered on December 16 by a special panel of nine Law Lords, is a victory for non-British detainees held at the high-security Belmarsh prison in south London, which has been called “Britain’s Guantanamo Bay.”   As a result, the British government will almost certainly be forced to amend the Anti-Terrorism, Crime and Security Act, which was passed by Parliament in the aftermath of September 11.

Under the Act, the British government can detain non-British citizens without trial if it has reason to believe that they are terrorists and pose a threat to national security, but they cannot be deported to their own countries because they would be likely to face persecution or torture. 

The Law Lords gave a number of different reasons for their ruling that the Act violated the European Convention on Human Rights.  The majority of the judges took the view that it unfairly discriminated against non-British citizens, since only they (and not British nationals) were subject to detention without trial.  Lord Nicholls said indefinite detention was “anathema in any country which observes the rule of law” and could only be justified in “wholly exceptional circumstances…It is difficult to see how the extreme circumstances which alone would justify such detention can exist when lesser protective steps apparently suffice in the case of British citizens suspected of being international terrorists.” 

Other judges challenged the government over its decision to derogate from the provision in the European Convention guaranteeing the right to “liberty and security of person.”  Under the convention, states are allowed to derogate from (i.e. free themselves from having to observe) certain parts of the convention “in time of war or other public emergency threatening the life of the nation,” but only “to the extent strictly required by the exigencies of the situation.” 

Lord Hoffman wrote in his opinion that terrorist violence did not “threaten our institutions of government or our existence as a civil community” and therefore could not be said to threaten the life of the nation.  “The real threat to the life of the nation,” he wrote, “in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.”

Unlike the United States, Britain has not claimed to be engaged in an armed conflict with terrorist groups that entitles it to detain enemy combatants.  The British government has never denied that the basic framework of international human rights law is applicable to its domestic anti-terrorist measures.  It did claim however that the exceptional threat posed by terrorism allowed it to take steps against foreign citizens that would normally be regarded as an infringement of their human rights.  Britain’s highest court has overwhelmingly rejected that argument.

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Full Text of the House of Lords Ruling (.pdf file)

(via BBC News website)

December 16, 2004

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