A. v Secretary of State for the Home Department
| Date | 01 July 2005 |
| Published date | 01 July 2005 |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.555_1.x |
CASES
A. v Secretaryof State for the Home Department
Introduction
In December 2004, the House of Lords issued its ruling in the case of A.v.Secre-
of the Anti-Terrorism, Crime and Security Act 2001 (authorising the Home
Secretary to detain suspected international terrorists who ^ for legal or practical
reasons ^ could not be deported from the UK) was incompatiblewith the Con-
ventionright expressed in art.5 relating toliberty of the person.This ruling set in
motion a chain of events culminating in the enactment in March 2005 of a new
Prevention of Terrorism Act, which e¡ectively replaced the arrangements in Part
IVof the 2001 Act with a new system of control orders.The case has been widely
regarded as being one ofthe most constitutionally signi¢cant ever decided by the
House of Lords, as evidenced by the fact that it was heard by an unprecedented
panel of nine judges rather than the usual ¢ve. Given its importance, MLR has
commissioned the following comments on various aspects of the case.
The Law Lords’ ruling had an obvious and immediate practical signi¢cance
relating to the design of an e¡ective governmental response to terrorist threats.
But beyond that, the ruling also illustrates the extent to which British constitu-
tional discourse has become more nuanced and more complicated following the
enactmentof the Human RightsAct. It is on theseconstitutional issues thatmuch
of the following commentary focuses.What now is the relationship between sta-
tute, common law, human rights norms, and the constitution? And what are the
appropriate roles of government, parliament and the judiciary, not only in pro-
moting, making and interpreting law, but also in elucidating constitutional
requirements? Underlying these rather di⁄cult questions sits a more basic juris-
prudential issue concerned with the meaning that must now be accorded to the
terms ‘law’ and ‘constitution’ in the British system. In addition to their value in
helping us to understand the immediate importance of the case, the comments
can also be read as contributions to an on-going constitutional debate.
ML
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(4) MLR 654^680
Between Human Rights and the Rule of Law:
Inde¢nite Detention and the Derogation
Model of Constitutionalism
To m R . H i c k ma n
n
Defensive Democracy
The attacks on America on September 11, 2001 heralded an era of what has been
described as defensive democracy.
1
Governments across the democratic world have
acted to concentrate power into their own hands whilst shutting their outer gates.
But although strength is undoubtedly the ¢rst necessity of anyconstitution, the li ne
between strength and unbridled power is dangerously ¢ne. Moreover, the ¢rst
casualties of defensive measures are inevitably the civil liberties and human rights
that individuals normally enjoy. It is therefore imperative that in order to maintain
the very democratic systems that defensive postures are intended to protect, state
constitutions operate to defend the threatened bridgeheads of legality and human
rights. This issue is raised in no more stark form than in relation to the UK’s post-
September 11 derogation from the European Convention on Human Rights and
the resistance to derogation (as well as to continued derogation) that has been pro-
vided by the non-governmental institutions of the UK’s constitutional regime.
The extent of the judicial resistance to derogation has now been authoritatively
established by the House of Lords in Av. Secretary ofSta tefor the Home Department.
2
This paper examines the decision against the backgroundof three di¡ering con-
stitutional models relating to the nature of derogation. Each model represents a
very di¡erent approach to the defence of the twin bridgeheads of legality and
human rights.These models o¡er a perspective fromwhich to evaluate the House
of Lords’decision and, to some degree,we ¢nd each re£ected in thedecision. But
before turning to these models and to the critical analysis of the decision, it is
useful to begin by setting out the ruling and its immediate context.
The Challenge to the UK’s Derogation
The governmenthas well-established powers todeport non-nationalson grounds
of national security and, so long as steps are being taken to toward deportation,
even detaining such individuals for several years may not violate the Conven-
n
Barrister
1 A. Barak, ‘Foreword: A Judgeo nJudging: The Role of a Supreme Court in a Democracy’ (2002)
116HarvLRev16,atp21.
2 [2005] 2 WLR 87 (to which al l unattributed references hereafter refer).
655rThe Modern LawReview Limited 2005
TomR. Hickman
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