UK Supreme Court - Belmarsh - the sequel (A and others v SS for Home)

by Ben Mendelowitz

In 2009, 11 refugees applied to the European Court of Human Rights under:

A violation of their right to liberty and security.

A violation of the right to have lawfulness of detention decided by a court.

A violation of the right to be compensated for such violations.

Rather similar to the human rights case heard before the House of Lords in 2005 (A and Other v Secretary of State for Home Department). So the question must be asked: Can the government carry out discriminatory detention schemes?

But first, some context is needed. The applicants were 11 individual, six of Algerian nationality; four of French, Jordanian, Moroccan and Tunisian nationality; and one, born in a Palestinian refugee camp in Jordan, is of no state.

Following the ‘al-Qaida claimed’ attacks of 11 September 2001 on the United States, the British government concluded that the UK was a potential target for terrorist attacks, such attacks giving rise to a ‘public emergency threatening the life of the nation’ within the meaning of Article 15 of the European Convention on Human Rights.

The government believed that the threat came from a number of foreign individuals present in the UK providing a support network for extremist Islamic terrorist operations linked to al-Qaida. These individuals could not be deported a there was a risk that each would be harmed in his own country – in breach of Article 3 of the ECHR. Therefore the government considered it was necessary to create an extended power permitting the detention of foreign nationals, where the Secretary of State believed that the individual’s presence in the UK threatened national security.

Yet this detention scheme could be considered ‘incompatible’ with Article 5.1 of the ECHR (right to liberty), so on the 11 November 2001 the government issued a notice of derogation under Article 15 of the ECHR to the Secretary General of the Council of Europe (at the time Daniel Tarschys). This set out, under the Crime and Security Act 2001, the powers to detain foreign nationals identified as ‘suspected international terrorists’ who could not ‘presently’ be removed from the UK.

This legislation was short-lived, but during its 4-year life span 16 individuals, including these 11 applicants were indentified and detained. Six of these applicants were detained on 19 December 2001; the others being detained on various dates until October 2003. All were initially detained at Belmarsh Prison. The Moroccan and French applicants elected to leave the UK and were released. Yet three applicants were transferred to Broadmoor Secure Mental Hospital following deterioration in their mental health.

Moreover, each applicant appealed to the Special Immigration Appeals Commission against the State’s decision to identify him as a ‘terrorist’. Throughout this appeal the SIAC separated evidence, only making some ‘non-sensitive’ material available to each detainee and their legal representatives. On 30 July 2002, the SIAC upheld the decisions to certify the individuals yet, because the detention scheme only applied to foreign nationals, it was found to be in breach of the Convention.

On 21 January 2005 the application was lodged with the European Court of Human Rights and was heard in public hearing on 21 May 2008. The applicants alleged before the Court that their indefinite detention in high security conditions amounted to inhumane of degrading treatment. They also complained that the detention scheme was unlawful and discriminatory and that the derogation was disproportionate. Furthermore, although their detention was deemed to be in breach of UK law as they were unable to bring about any proceedings in the UK to claim compensation or bring about release – essentially a gross breach of their human rights under the ECHR. Finally, the applicants stated that during their appeals against identification before the SIAC (Special Immigration Appeals Commission) they only had limited knowledge of the case against them and, therefore, only had limited possibility to challenge it.

So, considering these allegations, the court held unanimously that there had been:

·         No violation of Article 3 (prohibition of torture and inhumane or degrading treatment) taken alone or in conjunction with Article 13 (right to an effective remedy) of the European Convention on Human Rights in respect of all the applicants, except the Moroccan applicant whose complaints under these articles were declared inadmissible. The Court found no violation as applicants did have prospect of release (being able to challenge the legality of detention), remedies to challenge conditions of detention and there was no evidence of inhumane or degrading treatment.

·         A violation of Article 5.1 (right to liberty and security) of the Convention in respect of all the applicants, apart from the Moroccan and French applicants who had elected to leave the UK. In regard of the other applicants the court ruled that as the applicants had been detained without the objective of deportation or being charged. Moreover the House of Lords had found the derogating measures, which permitted their indefinite detention, discriminated unjustifiably between nationals and non-nationals.

·         A violation of Article 5.4 (right to have lawfulness of detention decided by a court) in respect of two of the Algerian applicants, the stateless and Tunisian applicants as they had not been able to challenge the allegations against them due to the limited provision of evidence; and,

·         A violation of Article 5.5 in respect of all the applicants, except the applicants who had elected to leave, on account of the lack of an enforceable right to compensation for the above violations

The Court gave compensation in view of the fact that the scheme was set up in the face of ‘a public emergency’ and to protect the UK against terrorism with obligation not to send applicants back to their domestic countries – where they faced the risk of serious ill treatment.

I believe that this is a rather important case. It shows that the power of the executive can be curtailed in regard to trampling on individual’s rights as well as showing that the ECHR isn’t some hyper human rights activist body (as many European court bashing politicians say). The Court came to a very sensible decision – whatever political reasons for limiting the derogation to nationals, they cannot justify discriminating on nationality, especially when this undermines the whole reasoning behind the derogation, since nationals can be equally dangerous to the state- the 7/7 bombings in London can demonstrate this. 

Therefore, this would be particularly useful for politics students because (if you can shorten this into a couple of lines) a very good example of the balance, leniency and fairness the ECHR is capable of achieving.

Paxman and Brand - Participation crisis in British politics

By Ben Mendelowitz


Following the Newsnight interview, where Russell Brand envisioned

himself as the philosopher of the “common people’’, there has been

much talk of the political participation ‘crisis.’

“…it’s not that I’m not voting out of apathy. I’m not voting out of absolute indifference and weariness and exhaustion from the lies, treachery, deceit of the political class, that has been going on for generations now. And which has now reached fever pitch where you have a disenfranchised, disillusioned, despondent underclass that are not being represented by that political system, so voting for it is tacit complicity with that system and that’s not something I’m offering up’’ Russell Brand on Newsnight

Yet some of the points both Paxman and Brand made in this interview

actually make sense and appeal-there is a huge sense of

disillusionment among the masses – since 1997 the turnout has never

been above 70%. In addition party membership has massively

declined with a mere 0.80% of the total electorate possessing party

membership. Under the ‘big’ words, the multimillionaire comedian, with a house in California, does make valid statements about the British political system:

 “At the next election we shall have a choice between the people who've given us five years of austerity, the people who left us this mess, and the people who signed public pledges that they wouldn't raise student fees, and then did so - the most blatant lie in recent political history”

In recent years, politicians have not offered any solutions to the problems of the modern world; they simply attempt to placate the population in attempts to direct people away from the erroneous job they’re doing.

From the late 1970s it was the Conservatives who dominated the political landscape as the Labour Party was left on the sidelines, seeming outwardly communist. It seemed that there was no opposition to the Conservatives’ policies and consequently they ended up doing what they wanted, to the detriment of many ordinary working families.

Eventually, the Labour Party made a comeback, but only by separating itself from the principles which had made it the party of the working class. Labour became ‘new’ Labour and seemed to be more concerned about looking after the interests of big business than creating a fairer, more equal society. It became difficult to see a difference between Labour and the Conservatives, so that many people wondered if there was any point in voting at all.

To make matters worse, UK politicians have been caught abusing their expenses, making claims for items that have no place on an expenses form. Ordinary taxpayers have been paying for politicians to have their homes redecorated and for an assortment of household goods when politicians are already earning far more than the average salary. As far as most people are concerned, politicians have very few principles and are more interested in bettering themselves than doing what is best for the country and for ordinary people. If the system we have in place employs people who are supposed to be competent and care about the country then why was an expenses scandal in the first place.

There are very few politicians willing to stand up what they believe in, as most don’t believe in anything and decide which cause to support based on opinion polls and focus groups. Ambition for power and money seems to be the driving force behind most political action, something which the general public is very aware of. Consequently, most people do not see a reason to vote when politicians look and act the same and are only interested in protecting and furthering their own interests. To quote Brand again:

People for the first time in a generation are aware of massive, corporate and economic exploitation. These things are not nonsense. And these subjects are not being addressed. No one is doing anything about tax havens, no one is doing anything about their political affiliations and financial affiliations of the Conservative Party, so until people start addressing things that are actually real, why wouldn’t I be facetious, why would I take it seriously? Why would I encourage a constituency of young people that are absolutely indifferent to vote? 

As far as many people are concerned, politicians are all the same: superficial, all from the same background, all in it for the money and power and all willing to change their image for power. The main problem, Is that they are effectively all the same people: Oxbridge graduates who have no experience of the working world but have gone straight into politics to climb the ladder of power.

“It won't be a bombshell if very large numbers of the electorate simply don't bother to vote. People are sick of the tawdry pretences." Jeremy Paxman

Editor's note. Since this was written and first published, Jeremy Paxman has admitted he did not vote in the last election either.

The problems of Democracy

The Economist this week published a great essay all about Democracy and how it can be improved in the 21st Century - the interactive version can be found here, complete with tables, charts and click-able time-lines.

Picture Source - The Economist

Great stuff for anyone contemplating Democracy for the section of Unit 1.

Human Rights

While doing some research and preparation, I came across a great documentary about the controversial Human Rights Act on YouTube. Originally a BBC show I will try to get a copy onto the College system. It's focus is the problem of the Human Rights Act and public perceptions that it is doing a bad job.

David Cameron has signalled several times that he doesn't like it, try here for August 2013 in the Guardian and here for October 2011 in the Mail.

The HRA has been cited as being the reason Britain can't deport foreign criminals; see also here for a longer list (both courtesy of the Telegraph).

Back in 2011, the Home Secretary Theresa May claimed that a cat had prevented a foreign criminal from being deported and fundamentally the HRA had played its part. As noted in that article and this from the Guardian, the truth is more complex; fundamentally the Home Office had not followed correct procedures. Nothing actually to do with the HRA.

To counter all this is a post from LabourList, and a page from the EHRC which has further links to documents defending the HRA. In addition, here is a page from the British Academy which hosts a report into the HRA. The executive summary is a very good place to start for anyone contemplating an argument into the importance of the HRA.

On the one hand there is the outrage associated with what appears to be unfair application of rules and on the other, there is the problem that we are supposed to trust politicians to look after our rights if we were to scrap the HRA and leave the convention.

In the meanwhile, here is the documentary:

Private Members Bill

This briefly caught my ear on the radio from Friday: a Conservative MP proposing in a Private Members' Bill that face coverings (such as the balaclava and the Muslim veil) be banned.

Clearly not a bill that was going to go anywhere, and coverage was scant - BBC's "Yesterday in Parliament", Parliament's web-site and, um, the Express. The Bill got to the "Second Reading" in the bill-passing process.

Good for Gov and Pol students wanting examples of Private Members' Bills, and arguably an indication of the sort of thing which gives Conservatives a certain kind of reputation.