The Constitutional Significance of the Decision of the House of Lords

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The Constitutional Significance of the Decision of the House of Lords

‘This is the most important case to come before the House since I have been a member.’[1]

Constitutional lawyers have called the judges’ verdict on the terror laws one of the most important decisions from Britain’s highest court in 50 years. The 240-paragraph judgment, handed down on 16 December 2004 outlines the opinions of an unprecedented panel of nine law lords, instead of the usual five, because of its constitutional significance. The ratio of the case alone was of extreme importance, concerning the issue over the disproportionate and discriminatory locking up of foreign suspected terrorists without trial. It confirms
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The men detained were all Muslim immigrants held in Belmarsh prison in London. To pass the Act, the UK (alone amongst European states) had to withdraw from part of the European Convention on Human Rights (ECHR) through a special derogation Order. It did so because it felt that there were foreigners living in the UK who were dangerous terrorists but who could not be deported because they would be in danger of suffering inhuman or degrading treatment, torture or even death if they were returned to their home country, something that would be in breach of the European Convention(art 3). It was the validity of this Order, which came into question before the Lords. The Convention (art 15) gives States to derogate:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

The conclusion of the 8-1 majority of the law lords was that the UK government had not acted within the constraints if the derogation right. The Lords quashed the Derogation Order and declared the Anti-Terrorism Crime and Security Act to be incompatible with the human right

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