Not Saussure

May 25, 2007

Dr Reid in discussions with the judiciary

Filed under: civil liberties, Law, UK, War on Terror — notsaussure @ 6:45 pm

The Home Secretary, House of Commons, 24 May:

I entirely accept that we should speak to a range of people, including retired members of the judiciary, but at the end of the day this is a matter for politicians. It is not a matter for judges or lawyers. They are a vital tool in interpreting existing laws, but it is for politicians to address the historical disjunctions that arise because of changes in the world. It is for them to address the law of conflict as it currently exists and its inadequacies in terms of the nature of today’s conflict, the law of peace and the disjunction between it and the nature of today’s peace—for we currently have something between war and peace—and the nature of the threat that we face. […]Let me put it simply. The European convention on human rights was intended to defend the individual from the unparalleled destructive capacity of the fascist state. That is what gave rise to it. People did not envisage at that time that the state and the community might now be under threat from the unparalleled destructive capacity of fascist individuals working in networks. That is what we face today. The arbitrary imposition of one’s will on another by destructive power is fascism, whether it emanates from Europe or any other area. We now face a historical development that requires all of us to build on the European convention on human rights, strengthen it and ensure that the most fundamental of all rights—the right to life and to protection of that life—without which no other right—

Lord Hoffman (a not-yet retired member of the judiciary) in his dissenting judgment in A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [2004] UKHL 56, 16 December 2004:

If the finger of suspicion has pointed and the suspect is detained, his detention must be reviewed by the Special Immigration Appeals Commission. They can decide that there were no reasonable grounds for the Home Secretary’s suspicion. But the suspect is not entitled to be told the grounds upon which he has been suspected. So he may not find it easy to explain that the suspicion is groundless. In any case, suspicion of being a supporter is one thing and proof of wrongdoing is another. Someone who has never committed any offence and has no intention of doing anything wrong may be reasonably suspected of being a supporter on the basis of some heated remarks overheard in a pub. The question in this case is whether the United Kingdom should be a country in which the police can come to such a person’s house and take him away to be detained indefinitely without trial.The technical issue in this appeal is whether such a power can be justified on the ground that there exists a “war or other public emergency threatening the life of the nation” within the meaning of article 15 of the European Convention on Human Rights. But I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.

The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the Convention, when it speaks of “war or other public emergency threatening the life of the nation”, accurately states the conditions in which such legislation has previously been thought necessary.


Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. When Milton urged the government of his day not to censor the press even in time of civil war, he said:

“Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governours”

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.


I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.



  1. Do you think that if Reid’s plans for another attempted derogation from Article 5 ever go through, that the majority in the Lords would now be much more likely to follow Hoffman?

    I’ve only got quite a superficial understanding of this from my law course, but I can’t imagine that the majority decision would be repeated, would it?

    It seems like a bit of a Liversidge situation, where looking back, even after such a short time, it’s Hoffman’s views, as your quoting him and not the majority makes clear, that seem to ring most true.

    Comment by alabastercodify — May 26, 2007 @ 2:21 pm

  2. It’s hardly my field of expertise, but certainly we’ve come a long way since Liversidge v. Anderson, in which the relevant Act said the Home Secretary could detain people during WW2 if he had reasonable cause to believe they had hostile associations: did this mean what ‘the reasonable man’ might consider reasonable or what the Home Secretary thought was ‘reasonable’, according to his lights? The majority thought the law meant that the Home Secretary could do pretty much what he wanted to, but Lord Atkin delivered a very powerful dissenting opinion, which rapidly (in legal terms!) came to be seen as the correct one.
    If you read Lord Bingham’s opinion in the instant case, he’s clearly (para 26) not very happy about things, and he expresses sympathy with Lord Hoffman’s position. But he goes on to argue, with some force (to my mind, at least)

    The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions. (para 29)

    That is, as the whole paragraph makes clear, he’s unwilling to (though he’s certainly prepared to) over-rule the Home Secretary as to whether a state of emergency exists in the first place, but he’s more than happy to over-rule him on the proportionality (and, therefore, the legality) of any measures introduced to deal with the supposed emergency.
    I reckon that’s the way it would go again if Reid or his successor tries to derogate. ‘Yes, you can, though we’re not happy about it. But, as to any specific measures you propose to take once you’ve derogated..’.
    Hoffman, if you look at the speech again, accepts that it’s up to Parliament whether we should derogate, but he makes his views about whether that’s the correct decision very clear indeed.

    Comment by notsaussure — May 26, 2007 @ 3:25 pm

  3. Ont the other hand though, if you want the judges to in effect give you the benefit of the doubt, and preserve some measure of defference, then it’s probably best not to piss them off too much with measures like the ministry for justice!

    Showing them how little respect you have for constitutional niceties isn’t clever if you intend to rely on their own observance of them.

    Comment by alabastercodify — May 26, 2007 @ 7:52 pm

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