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pillar of the European Union (Police and Judicial Cooperation in Criminal
Matters), as well as other matters. Of these, the provisions with regard to the dis-
closure and retention of information were particularly controversial (see
Tomkins [2002] PL 205, 209).
Most controversial of all the powers contained in the 2001 Act were the
powers in Part IV of the Act regarding the inde¬nite detention without trial of
persons suspected to be international terrorists “ a form, for all the Govern-
ment™s protestations to the contrary, of internment. Certain aspects of these
Part IV powers were found by the House of Lords to be unlawful (see A v
Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68,
considered in detail below) and they have since been abolished and replaced
with new powers to impose ˜control orders™: see the Prevention of Terrorism Act
2005 (see below). Remaining aspects of the Anti-terrorism, Crime and Security
Act 2001, however, remain in force.
In 2006 Parliament added the Terrorism Act 2006 to its vast range of counter-
terrorism measures. Among other matters this Act creates new criminal
o¬ences of encouraging or glorifying terrorism (s 1) and extends the maximum
period for which persons arrested on suspicion of terrorist o¬ences may be
detained from seven to twenty-eight days (s 23). The police and the government
had wanted the period of detention to be extended to ninety days but this policy
was defeated in the House of Commons.
Laws such as these pose a great variety of challenges for the protection of
Convention rights. Since the time of Thomas Hobbes, if not before, all govern-
ments have regarded their ¬rst responsibility to be to secure, as best they can,
peace and order within the jurisdiction (see T Hobbes, Leviathan (1651), ch 17).
If a government were to fail adequately to secure the realm against internal or
external threats to national security, it would be unlikely to remain in o¬ce for
long. In the face of what we are led to believe about the nature and range of
current threats, such onerous responsibilities should be taken neither lightly
nor for granted (see eg, the public statements made in November 2006 by the
Director-General of the Security Service (MI5), Dame Eliza Manningham-
Buller: see www.mi5.gov.uk/output/Page568.html). The problem, however, is
that it is principally the Government that leads us to believe that the threats
are severe, as it is the Government that has ownership of the country™s secret
756 British Government and the Constitution


intelligence assessments. Suspicions are bound to arise that the Government is
at least sometimes tempted to exaggerate the nature or the level of the threat so
as to obtain greater powers for itself or so that it can argue that greater resources
need to be devoted to seeking to counter the threat. The ˜¬asco™ (as Lord
Ho¬mann described it in A v Home Secretary (above, at [94]) over non-existent
Iraqi weapons of mass destruction in the months leading up to the invasion of
March 2003 has done nothing to alleviate such suspicions, of course. (See
further the Review of Intelligence on Weapons of Mass Destruction (chaired by
Lord Butler), HC 898 of 2003“04. On the struggle to subject the security and
secret intelligence services to some form of parliamentary and legal account-
ability, see L Lustgarten and I Leigh, In From the Cold: National Security and
Parliamentary Democracy (1994).)
Notwithstanding the undoubted importance of security, however, measures
taken in its name clearly engage a number of Convention rights: the right to
liberty (Article 5), the right to privacy (Article 8), freedom of expression (Article
10) and freedom of assembly (Article 11), among others, are each a¬ected by the
measures contained Britain™s counter-terrorism legislation.

(i) National security before the Human Rights Act 1998
Part of the reason why this poses such a challenge to the regime of Convention
rights is because courts in the United Kingdom have traditionally been notori-
ously weak in upholding civil liberties in the face of government claims to
national security. This is a story that spans almost a century of case law, going
all the way back to the First World War. An overview of six leading cases follows,
by way of background to the case law that has developed, since 9/11, under the
Human Rights Act.
R v Halliday, ex p Zadig [1917] AC 260. The Defence of the Realm Act 1914,
section 1 conferred on the government the power ˜during the continuance
of the present war to issue regulations for securing the public safety and
the defence of the realm™. Regulation 14B of the Defence of the Realm
(Consolidation) Regulations, made under the authority of section 1 of the 1914
Act, provided that ˜where . . . it appears to the Secretary of State that for secur-
ing the public safety or the defence of the realm it is expedient in view of the
hostile origin or associations of any person that he shall be subjected to such
obligations and restrictions as are hereafter mentioned, the Secretary of State
may by order require that person . . . to be interned in such place as may be
speci¬ed™. The Secretary of State ordered the internment of Mr Arthur Zadig,
apparently on the sole ground that Zadig had been born in Germany (he had
lived in Britain for more than twenty years and had become naturalised in
1905). Zadig was charged with no criminal o¬ence. He challenged the legality
of his internment and of Regulation 14B on which it was based. Altogether
thirteen judges heard Zadig™s case: ¬ve in the Divisional Court, three in
the Court of Appeal and ¬ve in the House of Lords. Of these, twelve held for the
Government that both Zadig™s internment and Regulation 14B were lawful. The
757 Liberty and the constitution


one dissentient was Lord Shaw in the House of Lords, whose opinion stands as
one of the true (and rare) landmarks of the judicial protection of liberty in
Britain in the face of claims to national security. In response to Zadig™s various
and detailed legal arguments the House of Lords was dismissive in the extreme.
Lord Finlay LC ruled, for example, that ˜It appears to me to be a su¬cient
answer™ to his arguments ˜that it may be necessary in a time of great public
danger to entrust great powers to His Majesty in Council™ (at 268). His intern-
ment was described as ˜not punitive but precautionary™ (at 269), and as ˜expe-
dient™ in the ˜interests of the nation™ (at 270). Dissenting, Lord Shaw described
Zadig™s internment as ˜a violent exercise of arbitrary power™ (at 277). Noting
that the Act of 1914 said nothing about persons of hostile origins and nothing
about internment, his Lordship ruled that Regulation 14B could not be justi¬ed
with reference to the Defence of the Realm Act and was ultra vires. (For com-
mentary on the case, see Foxton, ˜R v Halliday, ex p Zadig in retrospect™ (2003)
119 LQR 435 and K Ewing and C Gearty, The Struggle for Civil Liberties: Political
Freedom and the Rule of Law in Britain 1914“1945 (2000), ch 2.)
Liversidge v Anderson [1942] AC 206. In many ways this case is the Second
World War equivalent of ex p Zadig. Like Zadig, it is concerned with internment
and again like Zadig, Liversidge v Anderson saw a strongly worded lone dissent “
this time from Lord Atkin (who was, as Atkin J, one of the twelve judges who
ruled in the Government™s favour in ex p Zadig). In the years that have passed
since the Second World War it is Lord Atkin™s dissent that has been championed.
But this is unfair: of the two it is Lord Shaw™s dissent in ex p Zadig that ought to
be held up as the leading example of judicial liberalism in the face of govern-
ment claims to national security (a point made strongly both by Foxton and by
Ewing and Gearty, above). That said, the point made by Lord Atkin that the
majority of their Lordships had shown themselves to be ˜more executive minded
than the executive™ (at 244) is deservedly often repeated in commentaries on the
case law considered here. There are a number of di¬erences between Zadig and
Liversidge v Anderson. In the latter case, the relevant statute, the Emergency
Powers (Defence) Act 1939, section 1, expressly provided that regulations made
by the Crown under that section could include regulations ˜for the detention of
persons whose detention appears to the Secretary of State to be expedient in the
interests of the . . . defence of the realm™ (s 1(2)). The relevant Regulation was
Regulation 18B of the Defence (General) Regulations 1939, which provided that
˜If the Secretary of State has reasonable cause to believe any person to be of
hostile origin or associations . . . he may make an order against that person
directing that he be detained™. Liversidge was detained on an order signed by Sir
John Anderson, the Home Secretary. He sought a declaration that his detention
was unlawful and damages for false imprisonment. Argument in the House of
Lords focused on the words ˜If the Secretary of State has reasonable cause to
believe™ in Regulation 18B. The majority of their Lordships ruled that the courts
could not inquire whether in fact the Secretary of State had reasonable grounds
for his belief that it was expedient to order a person™s detention. Viscount
758 British Government and the Constitution


Maugham proclaimed that ˜To my mind this is so clearly a matter for executive
discretion and nothing else that I cannot myself believe that those responsible
for the [Regulation] could have contemplated for a moment the possibility of
the action of the Secretary of State being subject to the discussion, criticism and
control of a judge in a court of law™ (at 220). In the exercise of this power the
Secretary of State was ˜answerable to Parliament™, not to the courts (at 222).
Lord Atkin complained that the view of the majority had altered the meaning
of the words in Regulation 18B from ˜If the Secretary of State has reasonable
cause to believe™ to ˜If the Secretary of State thinks he has reasonable cause to
believe™ (at 245). He ruled that this was not what the Regulation meant and,
applying this ruling to the facts of Liversidge, he held that the Secretary of State
did not have reasonable cause to believe that it was expedient to detain him. (In
the companion case of Greene v Secretary of State for Home A¬airs [1942] AC
284, decided by the House of Lords on the same day as Liversidge v Anderson,
Lord Atkin ruled that, on the facts of that case, the Secretary of State did
have reasonable cause to believe that Greene™s detention was expedient within
the terms of Regulation 18B; for a detailed analysis, see AWB Simpson, In the
Highest Degree Odious: Detention without Trial in Wartime Britain (1992) and
see further, K Ewing and C Gearty, The Struggle for Civil Liberties: Political
Freedom and the Rule of Law in Britain 1914“1945 (2000), ch 8.)
R v Secretary of State for Home A¬airs, ex p Hosenball [1977] 1 WLR 766.
Mr Hosenball was an American citizen who had been lawfully resident in
Britain and Ireland for all of his adult life. He was a journalist who worked on
Time Out and the London Evening Standard. In 1976 the Home Secretary
informed him that he was to be deported to the United States for the reason that
he had ˜obtained for publication information harmful to the security of the
United Kingdom™. Hosenball asked for further particulars of what was alleged
against him but was not provided with any. He was given a hearing before a
special panel of three ˜advisors™. At the hearing the advisors had sight of evi-
dence from the security service that Hosenball and his lawyers were not per-
mitted to examine. Neither was the advisors™ report to the Home Secretary
disclosed to Hosenball. After receiving the report the Home Secretary renewed
the deportation order. The Divisional Court and the Court of Appeal unani-
mously rejected Hosenball™s application for judicial review. Lord Denning
MR ruled as follows (at 778): ˜if this were a case in which the ordinary rules
of natural justice were to be observed, some criticism could be directed upon
it . . . But this is no ordinary case. It is a case in which national security is
involved: and our history shows that, when the state itself is endangered, our
cherished freedoms may have to take second place. Even natural justice itself
may su¬er a set-back. Time after time Parliament has so enacted and the courts
have loyally followed.™ After citing ex p Zadig and Liversidge v Anderson, Lord
Denning went on to note that although these were wartime authorities, ˜times
of peace hold their dangers too™. He concluded as follows (at 782“3): ˜Great as
is the public interest in the freedom of the individual and the doing of justice to
759 Liberty and the constitution


him, nevertheless in the last resort it must take second place to the security of
the country itself . . . There is a con¬‚ict here between the interests of national
security on the one hand and the freedom of the individual on the other.
The balance between these two is not for a court of law. It is for the Home
Secretary . . . He is answerable to Parliament for the way [he balances the two]
and not to the courts here.™ Since the 1970s Mr Hosenball has continued to
enjoy an illustrious and prize-winning career as an investigative journalist, most
recently for the American magazine, Newsweek. (The advisory panel was
replaced in 1997 by the Special Immigration Appeals Commission (SIAC), fol-
lowing the ruling of the European Court of Human Rights in Chahal v United
Kingdom (1996) 23 EHRR 413 that the advisory panel system violated Article
5(4) of the Convention; see further on SIAC, below.)
Council of Civil Service Unions v Minister for the Civil Service (the ˜GCHQ™
case) [1985] AC 374. We encountered this important case in the previous
chapter, where it was examined for what it states about the grounds of judicial
review in domestic law. Here, we are concerned with what the case has to say
about national security. As will be recalled, the case concerned Mrs Thatcher™s
decision as Prime Minister and Minister for the Civil Service that the several
thousand people working at Government Communications Headquarters
(GCHQ) should not be permitted to form or to join trade unions. The Council
of Civil Service Unions argued that the decision was procedurally unfair, in that
Mrs Thatcher had not consulted them in advance as she was legally required to
do. Notwithstanding the fact that the unions were successful in this argument,
they lost the case, for the reason that Mrs Thatcher claimed in the Court of
Appeal and the House of Lords that her decision was taken in the interests of
national security. (This argument was not made at earlier stages of the litiga-
tion.) Lord Fraser ruled that ˜The question is one of evidence. The decision on
whether the requirements of national security outweigh the duty of fairness in
any particular case is for the government and not for the courts; the government
alone has access to the necessary information, and in any event the judicial
process is unsuitable for reaching decisions on national security™ (at 402). Lord
Diplock expressed the point more pithily: ˜national security,™ he said, ˜is par
excellence a non-justiciable question™ (at 412). This line of reasoning (if that is
the right word) goes back, like so much national security law, to the case law of
the First World War: in The Zamora [1916] 2 AC 77, 107, Lord Parker stated that
˜Those who are responsible for the national security must be the sole judges of
what the national security requires. It would be obviously undesirable that such
matters should be made the subject of evidence in a court of law or otherwise
discussed in public.™
R v Secretary of State for the Home Department, ex p Cheblak [1991] 1 WLR
890. Cheblak, like Hosenball (above) concerned the Home Secretary™s powers to
deport persons from the United Kingdom whose deportation is, in his view,
˜conducive to the public good for reasons of national security™ (Immigration
Act 1971, s 3(5)). Abbas Cheblak was a writer and scholar who campaigned
760 British Government and the Constitution


for human rights in the Arab world and for a peaceful solution to the
Israeli/Palestinian con¬‚ict. He had lived in Britain for sixteen years. Like
Hosenball, Cheblak sought judicial review of the Home Secretary™s decision to
deport him. Like Hosenball, Cheblak was unsuccessful in the Divisional Court
and the Court of Appeal. The Court of Appeal ruled that national security was
a matter ˜exclusively™ for the government. In the absence of evidence of bad faith
or that the Home Secretary had exceeded the limitations on his authority
imposed by statute, the courts will accept that the Home Secretary had good
reason to make a deportation order on national security grounds without
requiring him to produce evidence to substantiate those grounds. In the light of
this ruling it is remarkable that Lord Donaldson MR should have gone out of
his way to state in the course of his judgment that ˜Judges are exhorted by com-
mentators to be “robust” . . . I agree that judges should indeed be “robust” and
I hope that we are™ (at 906). He then went on to say that ˜although they give rise
to tensions at the interface, “national security” and “civil liberties” are on the
same side. In accepting, as we must, that to some extent the needs of national
security must displace civil liberties, albeit to the least possible extent, it is not
irrelevant to remember that the maintenance of national security underpins
and is the foundation of all our civil liberties™ (at 906“7). A decade later, the
investigative journalist Nick Cohen returned to the Cheblak case. This is what
he reported.


Nick Cohen, ˜Return of the H-Block™, Observer, 18 November 2001

In 1991, during the Gulf War . . . 50 Palestinians [were] interned because of their ˜links to
terrorism™, and 35 Iraqi ˜soldiers™, captured in Britain and held as prisoners of war in a camp
on the Salisbury Plain . . .
I was a reporter on the Independent at the time, who generally believed that the repre-
sentatives of the state were honest and competent . . . [A]long with most others who
watched the arrests I promised I was never going to make that mistake again. The Gulf War
was one of those clarifying moments when the artifice of authority became transparent.
The internees were innocent. Not just in the legal sense of not being guilty beyond rea-
sonable doubt, but irrefutably innocent. The Iraqi ˜soldiers™ weren™t a fifth column. They were
engineering and physics students whose scholarships came from the Iraqi military. Their
arrest wasn™t the great espionage coup the press had hailed. Iraqi assets in Britain had been
frozen at the start of hostilities. Before he returned to Baghdad, the Iraqi ambassador sent
the Bank of England the students™ names and addresses. He asked that their grants be paid
until the fighting was over. They were locked-up instead, and many showed their loyalty to
Saddam by asking for political asylum . . .
The interned Palestinians included those rare moderates the Foreign Office dedicates so
much time to finding in the Middle East. Abbas Cheblak was an advocate of Arab-Israeli
rapprochement who had written a sympathetic study of the Jews of Iraq and criticised the
invasion of Kuwait. The Home Office may have got a clue that MI5 had blundered when
761 Liberty and the constitution

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