Lord Nicholls agrees with this view when he said in the A case with reference to the SIAC deciding on the fate of the detainees
“My Lords, indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford. Wholly exceptional circumstances must exist before this extreme step can be justified.”
It was argued that as the UK is involved in the war on terror, the country was at a state of war and therefore the rule of law could be derogated from. In Liversedge v Anderson, in the Second World War, it was held that this was not a valid reason to derogate from the rule of law. Here the point of law to be considered was
“…whether the Secretary of State has power … to deprive the appellant of his liberty on the mere allegation that there is reasonable cause to believe certain things about him said to be prejudicial to the interests of the realm.”
This is similar to the current views on control orders, as the Home Secretary has the right to issue a control order for 28 days without judicial review if the home secretary suspects someone of terrorist activities. In Liversedge v Anderson Lord Atkin said in his judgement
“The meaning …is that there is no condition, for the words "if the Secretary of State has reasonable cause" merely mean "if the Secretary of State thinks that he has reasonable cause." The result is that the only implied condition is that the Secretary of State acts in good faith. If he does that - and who could dispute it or disputing it prove the opposite? - the minister has been given complete discretion whether he should detain a subject or not. It is an absolute power which…, has never been given before to the executive, and … no such power is in fact given to the minister by the words in question.”
This shows that even during times of war, the executive is not higher than the rule of law and the judiciary will still apply the rule of law, regardless of whether or not the country is at a time of war, which was the argument of the home secretary for detaining the defendants in the A case. Although Lord Atkin’s judgement was dissenting from the rest of the Law lords, it is this judgement that is still referred to today as an indication that in the eyes of judges even in times of emergency the right of the individual is paramount, and has been quoted in recent cases on this subject, such as MB and AF.
Why is the rule of law so important?
The rule of law is such an integral part of our society that it binds us together along with a sense of community and as a result should perhaps be treated as sacrosanct, along with humanity and community.
If regimes which engage in torture and other abhorrent practices are condemned for failing to respect the rule of law, then the rule of law is an important convention which should be followed above all others, yet with control orders being proactive rather than retroactive, it could be said that Britain is no better then the countries practicing the abhorrent practices as they are also going against the rule of law. Although it seems logical to stop the suspected terrorists before they commit the act, cases like the Menezes shooting have shown us that this does not always work as mistakes can be made and as a result innocent people can be hurt.
The Rule of law was shown in action when the court dismissed the arguments of the Home Secretary for the A case, as he wanted to detain the prisoners until the law was changed to reflect a system which complied with the rule of law and the Human Rights Act, but was denied this by the courts, as the detainees although they were thought to potentially be dangerous, had done nothing wrong the rule of law prevented them from being able to be detained indefinitely.
Terrorism and the rule of law
In A v Secretary of State for the Home Department, Lord Bingham of Cornhill said
“… the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.”
This shows the role of the judiciary in keeping to the rule of law in terrorist cases and in general. One of the most important pieces of legislation that the judiciary must adhere to is that of the Human Rights Act 1998, as it is the role of the judiciary to ensure that all legislation is read in accordance with the HRA, including the terrorism legislation. The legislature can make derogations from the Human rights act in times of emergency. When looking at terrorist cases, there must be some adherence to the rule of law, as is shown in the Guidelines on human rights and the fight against terrorism, adopted by the European council of ministers on 11 July 2002, which states
“ All measures taken by states to fight terrorism must respect human rights and the principle of the rule of law …”
This means that the Home Secretary can not claim that there is a war on terror and therefore the rule of law can be derogated from such as was done in the ACSA and also in the A case, as measures to fight terrorism are not able to derogate from the rule of law, regardless as to whether or not the state is in a state of war. The state must always pay attention to the rule of law. The Home Secretary can derogate from the ECHR according to art 15. He must still comply with the guidelines set out in Art 15. Lord Bingham said about this
“…[I]t seems to me that the rule of law does depend on an unspoken but fundamental bargain between the individual and the state…, by which both sacrifice a measure of the freedom and power which they would otherwise enjoy. The individual … accepts the constraints imposed by laws properly made because of the benefits which, on balance, they confer. The state for its part accepts that it may not do, at home or abroad, all that it has the power to do but only that which laws binding upon it authorise it to do.”
As a result, the state must always pay attention to the rule of law as it is a part of an assumed agreement with the individual that the state will comply with the rule of law. This unwritten agreement between the state and the individual, means that the individual does not need to live in fear that there will be a problem which means they will be detained for an indefinite amount of time for no apparent reason. This does not seem to be the case when looking at Abassi, as in that case it was held that Abassi, who had been detained in Guantanamo Bay, had no right to judicial review, as it was held
“… the underlying principle, fundamental in English law, was that every imprisonment was prima facie unlawful, and that no member of the executive could interfere with the liberty of a British subject except on condition that he could support the legality of his action before a court of justice”
This seems that even though the individual has a right under the rule of law to be treated fairly, if other countries are involved there seems to be something stopping the individual from being able to rely on the rule of law.
De Smith and Brazier, Constitutional and administrative law, 6th edition (1989, Penguin books) at 19 infer this
http://www.historylearningsite.co.uk/rule_of_law.htm, February 2008
Lord Bingham, The Rule of law, Sir David Williams lecture, Cambridge, December 2006
Dicey: His Life & Law of the Constitution found at
Arden, Meeting the challenge of terrorism: The experience of England and other courts (2006) 80 ALJ 818 at 822
A and others v Secretary of State for the Home Department [2005] 2 WLR 87
Goldsmith, Government and the rule of law in the modern age, JJ (2006) 3(1) 10-21 at page 11
A and others v Secretary of State for the Home Department [2005] 2 WLR 87 at 113
Article 15 Human Rights Act 1998
Directorate General of Human Rights, Human rights and the fight against terrorism 2nd edition (Council of Europe, March 2005)
Lord Bingham, The Rule of law, Sir David Williams lecture, Cambridge, December 2006
R. (on the application of Abassi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598;
