Brice Dickson, Human Rights and the United Kingdom Supreme Court, Oxford: Oxford University Press, 2013, 429 pp, hb £79.00.

DOIhttp://doi.org/10.1111/1468-2230.12112_3
Published date01 January 2015
Date01 January 2015
REVIEWS
Rayner Thwaites,The Liberty of Non-Citizens: Indefinite Detention in
Commonwealth Countries, Oxford: Hart Publishing, 2014, 307 pp, hb £55.
The legality of detaining people indefinitely without trial has become a subject
of renewed interest in legal scholarship. In The Liberty of Non-Citizens: Indefinite
Detention in Commonwealth Countries, Rayner Thwaites approaches the subject
through a comparative examination of judicial interpretations of the right to
liberty in Australia, the United Kingdom and Canada. He provides a detailed
analysis of case studies, setting the scene in each jurisdiction in order to emphasise
one leading case per country: Al-Kateb vGodwin [2004] HCA 37 (Al-Kateb)in
Australia; AvSecretary of State for the Home Department (SSHD) [2004] UKHL 56,
[2005] 2 AC 68 (Belmarsh) in the UK; and Charkaoui vCanada (Minister of
Citizenship and Immigration 2007 SCC 9, [2007] 1 SCR 350 (Charkaoui)in
Canada. Thwaites sets his comparative analysis against the backdrop of the recent
decision by the United States Supreme Court in Zadvydas vDavis 533 US 678
(2001), which held that detention can be sustained only so long as reasonably
necessary to effect removal, and by setting a presumptively reasonable period of
six months. Thwaites believes that the majority and dissenting opinions represent
what he calls respectively the ‘rights-protecting’ and ‘rights-precluding’ models
of judicial interpretation. Judges who adopt a rights-protecting approach gener-
ally tend to view their role as substantive in nature: they are there to ensure that
power is restrained and the law is enforced in compliance with due process. By
contrast, those adopting a rights-precluding approach are more positivist in
nature and shy away from what they see as abstract notions of the rule of law,
focusing mostly on the legitimacy of applicable procedures. As a basis for his
comparative analysis, Thwaites focuses on Finnis’s theory of nationality-
differentiated-risk-acceptability (J. Finnis, ‘Nationality, Alienage and Constitu-
tional Principle’ (2007) 123 LQR 417), which maintains that the protection of
citizens is a value which is rooted in both legislative and administrative tradition,
and trumps any liberty interest that a non-citizen who is no longer authorised to
remain on the territory might have. Thwaites’s work serves as a counter to Finnis
by proposing that interpretations of the executive power to exclude or expel
non-citizens must take into account evolving notions of international human
rights law, and include an evaluation of whether the power to detain complies
with fundamental rights, in particular the right to liberty.
Following the introduction in chapter 1, chapters 2 through 4 focus on a
selection of cases from Australia concerning the power to detain indefinitely.
Contrasting the Federal Court’s decision in Minister for Immigration & Multicultural
& Indigenous Affairs vAl Masri [2003] FCAFC 70, (2003) 126 FCR 54 (Al Masri)
with that of the High Court in Al-Kateb, Thwaites demonstrates that diverse
outcomes can result from different interpretations of constitutional and common
law devices. In these two cases, the focus was on whether the legal provision at
issue was ambiguous and therefore in need of interpretation. The Al Masri court
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© 2015 The Authors. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(1) MLR 176–187
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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