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Assess the constitutional significance of the decision of the House of Lords

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Introduction

Assess the constitutional significance of the decision of the House of Lords in A(FC) and Others (FC) v Secretary of State for the Home Department [2005] 'This is the most important case to come before the House since I have been a member.'1 Constitutional lawyers have called the judges' verdict on the terror laws one of the most important decisions from Britain's highest court in 50 years. The 240-paragraph judgment, handed down on 16 December 2004 outlines the opinions of an unprecedented panel of nine law lords, instead of the usual five, because of its constitutional significance. The ratio of the case alone was of extreme importance, concerning the issue over the disproportionate and discriminatory locking up of foreign suspected terrorists without trial. It confirms how the House of Lord's ensures the rule of law prevails when fundamental rights are questioned. The variation on the public law theme of the relationships between the court, the executive and Parliament was also highlighted in this decision; particularly the overlapping of the bodies and the conflict between the House of Lords and the Executive. Were the courts in fact entitled to answer the hyper-political question of whether there is an 'emergency,' threatening the life of the nation? To assess the significance over these issues, one must first understand the facts and background for the case. ...read more.

Middle

Quite simply to detain one group of suspected international terrorist, defined by nationality or immigration status, and not another, was a violation of Art 14 ECHR. The UK had not entered any derogation notice with regard to Art14. In a judgment that drew on various international legal materials and opinions, Lord Bingham rejected the Attorney-General's contention that the correct comparison was between non-UK nationals who represented a threat to the security of the UK, but who could be removed to their own or third countries, and, quite simply, suspected international terrorists who were UK nationals. Both he and Lord Hope suggested that the comparator advanced by the Attorney-General might be reasonable in an immigration context, but that the present case was a matter of security and not immigration. They rejected the Government's choice of immigration measures to deal with the Al-Qaeda threat to the UK especially as 'It is not disputed that a significant threat to national security comes from a significant number of British nationals.'6 Only Lord Walker dissented on this issue, arguing that the government had not been irrational. He stated that British citizens are in a fundamentally different position from non-nationals because they have a right of abode in the UK. Yet, perhaps the more trenchant summary of the illegality of the measure provided by Lady Hale describing how irrational the policy is outweighs Lord Walker's argument: No one has the right to be an international terrorist. ...read more.

Conclusion

It was the discriminatory nature of the Bill that perhaps most important as it was so irrational and produced the most emotive and persuasive arguments from the panel. There is no doubt that the Government have extremely difficult decisions to make regarding effective measures with the threat of terrorism, balanced with the provision of fundamental rights, given the current climate of fear. Yet what this decision illustrates is perhaps how reactive and draconian the executive are to achieve the objective of protecting the nation. The check on executive arbitration by the House of Lords and through judicial review is a useful instrument to show how politically vulnerable the Government can become. However, the very fact that the suspected foreign terrorists remained detained after this decision limits the effectiveness of the House of Lords and thus illustrates how it was constitutionally symbolic rather than significant. The readjustment of constitutional power may have been confirmed with this decision, with perhaps the House of Lords showing how they can function as a Supreme Court in not only name but also substance. Yet as the outcome shows, parliamentary sovereignty and executive domination perhaps outweigh the rule of law, even when the issue of liberty is so imperative in a democratic state. Lord Hoffman sums up the danger of reactive Executive legislation: 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. ...read more.

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