Restraining executive power

Judicial activism is irksome to legislators. In A and others v Secretary of State for the Home Department [2004] UKHL 56 (16 December 2004) seven Law Lords and Baroness Hale upheld the right of detainees to challenge the validity of subordinate legislation. Lord Walker dissented.

Lord Bingham, who delivered the leading speech, quoted, at para 41, Simon Brown LJ in International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728, at para 54:

” … Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts.”

Accordingly, an order, made by the Home Secretary, derogating from the right not to be detained except pending deportation (Article 5(1)(f) of the ECHR), was held to be subject to review on proportionality grounds. Derogation is permitted, under the ECHR, if it is within the terms of Art 15.1: “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.”

In para 44 Lord Bingham reached his conclusion on proportionality:

“…The European Court does not approach questions of proportionality as questions of pure fact …. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review. So would excessive deference, in a field involving indefinite detention without charge or trial, to ministerial decision. In my opinion, SIAC [the Special Immigration Appeals Commission] erred in law and the Court of Appeal erred in failing to correct its error.”

Part of the reasons for the finding of lack of proportionality was that the order was discriminatory. The derogation order was accordingly quashed, and section 23 of the Anti-terrorism, Crime and Security Act 2001[UK] was declared to be incompatible with articles 5 and 14 of the European Convention.

Lord Hoffmann agreed in the result, but for the different reason that he was not satisfied that there was a sufficient emergency to permit the making of the derogation order. He made the point, at para 88, that he was not relying on law peculiar to the European context, and that the common law rights pre-existed the ECHR:

“88. … 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.



“89. 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.




“90. Until the Human Rights Act 1998, the question of whether the threat to the nation was sufficient to justify suspension of habeas corpus or the introduction of powers of detention could not have been the subject of judicial decision. There could be no basis for questioning an Act of Parliament by court proceedings. Under the 1998 Act, the courts still cannot say that an Act of Parliament is invalid. But they can declare that it is incompatible with the human rights of persons in this country. Parliament may then choose whether to maintain the law or not. The declaration of the court enables Parliament to choose with full knowledge that the law does not accord with our constitutional traditions.”



Readers who are able to take a broad view will note the similarities of this case to Siloata v R, considered in the previous entry on this blogsite. The same essay of Montaigne, cited there, contains another appropriate observation:



“I hardly agree … with the opinion of that man [Justinian, by his Code and his Pandects] who tried to curb the authority of his judges by a multitude of laws, thus cutting their meat up for them. He did not understand that there is as much liberty and latitude in the interpretation as in the making of them. …

“… We have in France more laws than the rest of the world put together [Montaigne was writing in the 1580s]. … ‘As we once suffered from crimes, so now we are suffering from laws’ [Tacitus, Annals, III, XXV].”


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