Harnessing the Power of the Past? Lord Hoffmann and the Belmarsh Detainees Case

AuthorThomas Poole
Published date01 December 2005
Date01 December 2005
ISSN: 0263-323X, pp. 534±61
Harnessing the Power of the Past?
Lord Hoffmann and the Belmarsh Detainees Case
Thomas Poole*
This article examines styles of judicial reasoning under the Human
Rights Act. It uses Lord Hoffmann's short speech in the Belmarsh
Detainees case as a springboard from which to explore some important
developments. The first part of the article examines the way in which
some judges are `turning to the local' by using historical examples as a
means of countering powerful lines of argument run by the government
in defence of its anti-terrorist policies. Later in the article, I turn to
investigate the use of strategic decision-making by judges when
applying the HRA. I conclude by asking whether the introduction of the
HRA might lead to the development of a strange counterpoint between
internationalist and nationalist rhetoric in judicial decision-making.
Sir Stephen Sedley recently observed, in a paper published in this journal,
that one of the more profound and lasting effects of the passing of the
Human Rights Act was likely to be `a gradual realignment of the processes
of legal reasoning'.
(Although the judge chose not to aver an opinion as to
whether this development would ultimately prove beneficial.) In this article,
I explore this changing rhetorical landscape. Any investigation of this type,
given that the Human Rights Act remains in its `adolescent phase', must
necessarily contain an element of speculation.
But I hope that this piece
may make a contribution by identifying and explaining certain novel, and
sometimes even count erintuitive, tren ds in the structures of j udicial
reasoning now deployed in cases decided under the Act.
ßCardiff University Law School 2005, Blackwell Publishing Ltd, 9600 Garsington Road,
Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Law, University of Nottingham, University Park, Nottingham
NG7 2RD, England
I would like to thank Mark Aronson, Stephen Bailey, Devika Hovell, and Sangeeta Shah
for their comments on an earlier draft.
1 Sir S. Sedley, `The Rocks or the Open Sea: Where is the Human Rights Act
Heading?' (2005) 32 J. of Law and Society 3, at 17.
2 For a good account of the functioning and impact of the Human Rights Act to date,
see C. Gearty, Principles of Human Rights Adjudication (2003).
Time will tell whether the Belmarsh Detainees case
ushers in a new era of
constitutional politics for the United Kingdom. We are already beginning to see
the first trickle in what will no doubt become a flood of informed analysis and
The present piece does not seek to provide a straightforward
analysis of the case. It focuses instead on the short ± fewer than a dozen
paragraphs ± but revealing speech of Lord Hoffmann. Just as a five-minute
Chopin miniature can yield musical and emotional truths, I suggest that a close
reading of Lord Hoffman's speech brings to the surface certain deep-lying trends
in the development of judicial review under the aegis of the Human Rights Act.
The article examines Lord Hoffmann's speech from a number of different
angles, and uses the insights drawn from this exegesis as a basis for exploring
more general themes. I look first at the way the judgment uses the past both as
a storehouse of dramatic examples that can be drawn upon to guide decision
making and as a source of constitutive values to combat particularly powerful
lines of justificatory argument run by the government. Broadening the inquiry
a little, I turn later in the article to examine the judgment as a vehicle of
persuasion, arguing that Lord Hoffmann's resort to the rhetoric of national
pride is best understood as an attempt to reach out to an interested lay
audience comprising those who might otherwise have been sceptical about
judicial involvement in government anti-terrorist policy. I suggest in the
closing sections of the article that we may be about to see both a proliferation
of `outreach' judgments of this sort and a more widespread deployment of
strategic reasoning in the judicial application of the Human Rights Act.
The case was brought by nine foreign (non-United Kingdom) nationals who
had been certified by the Home Secretary under section 21 of the Anti-
Terrorism, Crime and Security Act 2001 as suspected international terrorists
and who had been detained under section 23 of the Act which allowed for
detention without charge.
The claimants challenged the legality both of
3A and others v. Secretary of State for the Home Department [2004] UKHL 56;
4 See, for example, A. Tomkins, `Readings of Av. Secretary of State for the Home
Department' [2005] Public Law 259; S. Shah, `The UK's Anti-terror Legislation
and the House of Lords: the First Skirmish' (2005) 5 Human Rights Law Rev. 403;
T.R. Hickman, `Between Human Rights and the Rule of Law: Indefinite Detention
and the Derogation Model of Constitutionalism' (2005) 68 Modern Law Rev. 655;
S. Tierney, `Determining the State of Exception: What Role for Parliament and the
Courts?' (2005) 68 Modern Law Rev. 668; B. Dickson, `Law Versus Terrorism: Can
Law Win?' [2005] EHRLR 11.
5 For critical analysis of these sections of the Act, see A. Tomkins, `Legislating
against terror: the Anti-terrorism, Crime and Security Act 2001' [2002] Public Law
205; H. Fenwick, `The Anti -Terrorism, Crime a nd Security Act 2001: A
Proportionate Response?' (2002) 65 Modern Law Rev. 724.
ßCardiff University Law School 2005

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