Quashing The Derogation Order In Europe After Essay

Length: 5 pages Sources: 7 Subject: Terrorism Type: Essay Paper: #23235681 Related Topics: Torture, Prohibition, Italy, Capital Punishment
Excerpt from Essay :

Quashing the Derogation Order in Europe

After considering a number of other legal cases, it greatly seems as though the decision of the Law Lords to quash the derogation order central to the case of A v Secretary for the Home Department UKHL 56 was correct. The basis of this particular case was the detainment of nine individuals in the United Kingdom who were suspected of being terrorists. A fair amount of this suspicion pertains to the fact that these individuals were detained in the period directly subsequent to the September 11 attacks on the World Trade Center in New York. The crux of the matter is that the derogation order involved in this court case contradicted Article 5 in the European Convention, which expressly calls for liberty and security of people within Europe. After considering a number of different issues in this case, Parliament granted the appeal of the nine defendants and quashed the derogation order. Again, an examination of several court cases and various aspect of the Anti-Terrorism, Crime and Security Act of 2001 reveals the fact that Parliament was right in issuing this judgment for the simple fact that the aforementioned act actually contradicted the European Convention on Human Rights.

One of the most definitive points of this particular case pertains to the Anti-Terrorism, Crime and Security Act of 2001. It is necessary to note that this act was created within the wake of the September 11, 2001 terrorist attacks (House, 2004). Since it was passed so quickly after the World Trade Center was destroyed, it is quite conceivable that those who propagated this legislation had not considered its full ramifications. This statement is particularly true of ramifications that pertained to previous legislation such as the European Convention on Human Rights. It appears that those that perpetuated this act largely did so on the basis of fear and with the pressing desire to not incur a similar fate in the United Kingdom that was suffered in New York. Due to the immediacy with which this legislation was both concocted and passed, it does not seem improbably that it might contradict more longstanding legislation.

In considering the lawfulness of the Law Lords to quell the derogation order, it is necessary to pay particular scrutiny to section four of the Anti-Terrorism Crime and Security Act of 2001. This section mandates that it is lawful to detain individuals who are either suspected of being terrorists or engaging in terrorist activities in government facilities (such as prisons). Moreover, this section states that in such circumstances, these individuals need not be awaiting trial or awaiting deportation (House, 2004). Instead, law enforcement officials can merely suspect that these individuals are capable of committing a crime and detain them without any other reason. However, one of the most unlawful aspects of this act is the fact that such detainment without deportation or trial only applies to those who are not British citizens. This description applies to all of the nine individuals who were involved as appellants in this case. Thus, it is relatively clear to see how this part of this Act conflicts with the European Convention of Human Rights and its fifth article, which expressly states that people throughout Europe are entitled to liberty and security.

Still, it is necessary to further examine the legal mandates that made it possible for acts such as this 2001 legislation to get passed. There is a derogation order found in the European Convention of Human Rights. That derogation order is article 15 of this document, and it denotes that "In time of war or other public emergency threatening the


This aspect of the convention was used to create the formal Derogation Order that was enacted specifically due to the perceived terrorist threat in the wake of the World Trade Center attacks. This Derogation Order, in turn, was used to create the Anti-Terrorism Crime and Security Act. The detainment of the defendants, then, despite being lawful under the aforementioned act, violated the 5th article of the convention. However, it is critical to remember that the chief point that enabled the House of Lords to agree with the appellants was that only those person who were not British could be detained under the 2001 Act.

Moreover, there are a number of additional court cases that uphold the notion that the derogation order that provided for the Anti-Terrorism Crime and Security Act was not legal nor congruent with the convention. One of the most prominent of these was the 1996 court case of Chahal v. United Kindom. Although this particular case related to article 3 of the convention -- which prevents torture -- there were still aspects of it that pertain Article 5 and to certain facets of the A. v. Secretary of State for the Home Department case. In the case of Chahal, it was found that this Sikh nationalist could not be deported because in doing so he would almost surely get murdered -- which would transgress the aforementioned article 3 (European Court, 1997, p. 86). Still, issues arose about the detainment of Chahal because the local courts could not determine whether or not his detainment was lawful or a matter of national security. The European Court of Human Rights determined that Chahal should not have been detained in this matter. One of the implicit factors of this case that directly to the principle one analyzed in this document is that both Chahal and the other nine defendants were not British nationals -- which factored into their somewhat questionable detention.

Another case that helped to establish a precedent that was eventually upheld when the Law Lords quashed the detention order and the Anti-Terrorism Crime and Security Act was Soering v. United Kingdom. In this notorious case, a young man murdered a couple in the United States prior to fleeing to the U.K. When he was arrested for a different offense and the U.S. attempted to extradite him, the European Court of Human Rights initially refused to do so because of issues pertaining to Article 3. Specifically, the court believed that Soering would receive the death penalty, and that there were certain factors about such a sentence and his detainment that transgressed Article 3 and its preclusion of torture (Soering, 1989). Soering's case relates to that discussed in this document in that some of those factors also relate to issues of detainment. Part of the reason that the court initially refused to extradite the prisoner was not just because it believed he would be sentenced to death, but also because its members believed that he would endure a lengthy detainment prior to that death sentence. The Court reasoned that Soering would have a lengthy period in which he was jailed prior to his sentence, and that such detainment would inexorably add to a sense of agony and anxiety that was akin to torture (Soering, 1989). Still, the correlation between this point and the case of A v. Secretary of State for the Home Department UKHL 56 is clear. The former helped to establish the precedent that prolonged periods of detainment were in violation of the convention. The period of detainment that the nine appellants endured was not quite as long as that which the court foresaw for Soering, but the experience of waiting in detainment in both instances was viewed as conflicting with the convention by the Court. As such, the decision of the House of Lords to abandon indefinite detention of foreigners due to the Anti-Terrorism and Security Act of 2001 was in accord with the ruling in the case of Soering, and helped to further justify the court's decision with the 2001 law.

Another landmark…

Sources Used in Documents:


Case of Soering v. The United Kingdom. (1989). Court (Plenary). Retrieved from http://hudoc.echr.coe.int. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#" target="_blank" REL="NOFOLLOW">http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#{%22dmdocnumber%22:[%22695496%22],%22itemid%22:[%22001-57619%22]}

De Londras, Fiona. (2008). Saadi v Italy: European Court of Human Rights Reasserts the Absolute Prohibition on Refoulement in Terrorism Extradition Cases. http://www.asil.org Retrieved from http://www.asil.org/insights/volume/12/issue/9/saadi-v-italy-european-court-human-rights-reasserts-absolute-prohibition

European Court of Human Rights. (1997). Chahal v. The United Kingdom. International Journal of Refugee Law. 9(1), 86-121.

House of Lords. (2004). Opinions of the lords of appeal for judgment in the cause. http://www.publications.parliament.uk / Retrieved from http://www.publications.parliament.uk/" target="_blank" REL="NOFOLLOW">http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&others.pdf

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