No. 1 of #50cases.
Terrorists target people and buildings, but they also attack freedom. The freedom to go about our lives without fear. This case, the top of our list, is about the right to liberty – the right to freedom – one of the most fundamental in the European Convention.
It was 2001. The UK, along with the rest of the world, was reeling in the aftermath of 9/11. Mingled with the sense of tragedy was fear and panic: could this be an unprecedented emergency? Under the European Convention of Human Rights, in a public emergency, states are allowed to make laws that violate rights, as long as they are strictly necessary. So Parliament did declare a state of emergency. It then gave the Home Secretary new powers to detain foreign terror suspects indefinitely, without charge or a trial.
In December 2001, eight people were detained indefinitely in Belmarsh prison using the new powers. None had committed or been charged with any crime. In 2004, three of them were still in prison – and still without any charge or a trial. They challenged their imprisonment. The case reached the House of Lords, the UK’s highest court at the time. The judges had to decide whether there was a public emergency and, if there was, whether the indefinite imprisonment of foreign terror suspects a necessary and lawful response?
Almost all of the judges decided there was a ‘near permanent’ state of emergency from terrorism. The UK could excuse itself from some human rights obligations to deal with the terror threat. But they also decided that indefinite imprisonment without trial ‘wholly negated’ the right to liberty, so was a disproportionate measure. Also, the new powers applied only to foreign people even though part of the terror threat came from British citizens. This was unreasonably discriminatory. So the judges declared the law to be incompatible with the Human Rights Act. This did not invalidate the law, but Parliament subsequently decided to repeal it.
The case was a pivotal and important statement on how far we can treat suspected foreign terrorists differently to other criminal suspects. It was also a powerful reminder of the importance of having independent judges assess the legality of the government’s decisions. Lord Hope said an independent judiciary holding the government to account is ‘a cardinal feature of the modern democratic state’. Even in an emergency, the law cannot be ignored. And everyone’s right to freedom must be protected.