The Constitutional Significance of the Decision of the House of Lords

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The Constitutional Significance of the Decision of the House of Lords

‘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.

The detention by the UK Government of the nine-suspected terrorists

was made under powers given in the Anti-Terrorism Crime and Security

Act 2001. The Act, passed in the wake of the September 11 bombings by

Al-Qa’eda, allows the Secretary of State to order indefinite detention

without charge on suspicion of terrorism. The Detainees are not given
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[1] Baroness Hale of Richmond, Judgements- A(FC) and others (FC)

(Appellants) v. Secretary of State for the Home Department(Respondent)-www.publications.parliament.uk-

par 219.

[2] Lord Hoffmann, op cit- par 86.

[3] Lord Hoffmann, op cit- par 89

[4] Lord Scott, op-cit- par 155

[5] Dickson B, Law Versus Terrorism: Can law Win? 2005- European Human

Rights Law Review

[6] Lord Hope, Judgements- A(FC) and others (FC) (Appellants) v.

Secretary of State for the Home Department(Respondent)-www.publications.parliament.uk-

par 138

[7] Lady Hale- op-cit- par 238

[8] Lord Walker-op-cit- par 193

[9] Lord Hope- op-cit- par 107

[10] Lord Bingham- op-cit- par 42

[11] Lord Scott- op-cit- par 145

[12] Lord Hoffman- op-cit- par 97

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