General principle:
The courts can quash delegated legislation and make declarations of incompatibility as regards to provisions of Acts of Parliament.
Name:
A and Others v Secretary of State for the Home Department
[2004] UKHL 56 (also known as the ‘Belmarsh case’)
Facts:
This case concerned the detention of a number of suspected terrorists held in Belmarsh Prison under the Anti-Terrorism, Crime and Security Act 2001. Section 23 of the Anti-Terrorism, Crime and Security Act 2001 permitted detention of suspected international terrorists without charge or trial. This provision raised serious concerns about compliance with the European Convention of Human Rights, ECHR under Article 5 which protects individuals from arbitrary detention.
Ratio:
The House of Lords ruled that the derogation did not satisfy the criteria required: as a result, they quashed the derogation order which then allowed them to issue a declaration of incompatibility in respect of section 23 of the Anti-Terrorism, Crime and Security Act 2001.
Application:
The courts have a power to scrutinize the actions of the legislative and executive in order to ensure that they act in compliance with the law.
Analysis:
Feldman writes that Parliamentary sovereignty was “preserved” by the Act because of the ability of Parliament to ignore declarations of incompatibility.[1] Practice has shown for example that most of the time Parliament has taken into account the ECHR when legislating, and, in the few times where a declaration of incompatibility has been pronounced, the government has acted to remedy the offending legislation.[2] This can be seen for example in the Belmarsh case,[3] where the House of Lords held that the indefinite detention of terrorist suspects without trial which had pursued under the Anti-Terrorism, Crime and Security Act 2001 was incompatible with the Convention.[4] This in turn led to Parliament re-writing the offending legislation and replacing the provisions with “control orders” in the new Prevention of Terrorism Act 2005.[5]
[1] David Feldman, English Public Law (1st edn OUP 2009) 324. [2] Keith Syrett, The Foundations of Public Law: Principles and Problems of Power in the British Constitution (2nd edn Palgrave 2014) 228. [3] A v Secretary of State for the Home Department [2004] UKHL 56. [4] Anti-Terrorism, Crime and Security Act 2001. [5] Prevention of Terrorism Act 2005.
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