Safeguards: Brannigan And Mcbride V. United Kingdom

The balance has previously been struck between derogations from international human rights law and national security, in Brannigan and McBride v United Kingdom where safeguards were in place aiding the balance of the two. The existence of safeguards resulted in no violation of human rights being found. This case demonstrates that safeguards create a balance between derogations and human rights when dealing with a threat to national security in the form of terrorism.

Safeguards protect human rights during a State’s response to a national security threat. During derogations, the human rights that are compromised tend to stem from the detention of the ‘threat’. Safeguards in place during detention reduce the likelihood of a violation under international human rights law. Safeguards
Following the 9/11 attacks, the Anti-Terrorism Crime and Security Act 2001 was passed and saw the liberty of foreign nationals compromised as section 23 of the Act permitted foreign nationals to be indefinitely detained without charge or trial in the UK if suspected of being a terrorist. This was a clear breach of the Article 5 ECHR. This measure was found to be discriminatory, as it did not apply to UK nationals. Lord Hope in A and Others stated that‘ . . .the indefinite detention of foreign nationals without trial has not been shown to be strictly required, as the same threat from British nationals whom the government is unable or unwilling to prosecute is being met by other measures which do not require them to be detained indefinitely without trial. The distinction which the government seeks to draw between these two groups – British nationals and foreign nationals – raises an issue of discrimination.’ This resulted in the House of Lords making a declaration of incompatibility and a repeal of the Act. Foreign nationals who are terror suspects have been discriminated against as a measure to protect national