The Golden Thread That Runs Through British Justice


I was a law student once. There’s a fair bit of tedium in reading case reports, but I always enjoyed reading judgements by Lord Denning MR. Tim Dunlop over at Road to Surfdom thinks a citation from a recent judgement by Lord Hoffman is the quote of the year. Lord Hoffman thinks that over-reaching intrusions into the liberty by the subject are a greater threat to Western civilisation than terrorism.

I think my old friend Lord Denning MR said it well:

In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England.

R v Secretary of State, Ex parte Hosenball [1977] 1 WLR 766, at 783

I also think these these reflections of Lord Steyn, currently a Lord of Appeal in Ordinary, are most worthwhile:

The most powerful democracy is detaining hundreds of suspected foot soldiers of the Taliban in a legal black hole at the United States naval base at Guantanamo Bay, where they await trial on capital charges by military tribunals. This episode must be put in context. Democracies must defend themselves. Democracies are entitled to try officers and soldiers of enemy forces for war crimes. But it is a recurring theme in history that in times of war, armed conflict, or perceived national danger, even liberal democracies adopt measures infringing human rights in ways that are wholly disproportionate to the crisis. One tool at hand is detention without charge or trial, that is, executive detention. Ill conceived rushed legislation is passed granting excessive powers to executive governments which compromise the rights and liberties of individuals beyond the exigencies of the situation. Often the loss of liberty is permanent. Executive branches of government, faced with a perceived emergency, often resort to excessive measures. The litany of grave abuses of power by liberal democratic governments is too long to recount, but in order to understand and to hold governments to account we do well to take into account the circles of history.

It seems to me that Lord Steyn is taking a most balanced and properly judicious view here. He goes on:

Even in modern times terrible injustices have been perpetrated in the name of security on thousands who had no effective recourse to law. Too often courts of law have denied the writ of the rule of law with only the most perfunctory examination. In the context of a war on terrorism without any end in prospect this is a sombre scene for human rights. But there is the caution that unchecked abuse of power begets ever greater abuse of power. And judges do have the duty, even in times of crisis, to guard against an unprincipled and exorbitant executive response.

What does it profit a society that defends itself at the cost of sacrificing the principles of liberty which ought to be paramount?

About Mark Bahnisch

Mark Bahnisch is a sociologist and is the founder of this blog. He has an undergraduate degree in history and politics from UQ, and postgraduate qualifications in sociology, industrial relations and political economy from Griffith and QUT. He has recently been awarded his PhD through the Humanities Program at QUT. Mark's full bio is on this page.
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2022 years ago

“In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England.”

Perhaps more honoured in the breach than the observance – as more than one Irishman would be happy to point out.

But at least they’re still aware of the principle of the thing.

2022 years ago

Lord Denning was not an especially good judge on civil liberties. In Hosenball He found in favour of the executive. A more apposite quote from that case is:

There is a conflict between the interests of national security on the one hand the and 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 the person entrusted by Parliament with the task.

As Nabby notes, and I’ve cited elsewhere Denning was a very bad judge when it came to the civil liberties of Irish suspects.

Andrew Norton
Andrew Norton
2022 years ago

Though the first duty even of a liberal state is to protect life, not liberty. Life, liberty and the pursuit of happiness – in that order. The trick, of course, is in getting the right balance when these goals conflict. The liberty of an Islamist can be death to others. I don’ t think we do the cause of a liberal society much good by assuming these trade-offs are easy, and that a judge deciding in favour of a detainee is by definition a good judge.

2022 years ago

I think the argument is about what constitutes a threat to the life of the nation. The House of Lords is careful to distinguish between times like the Napoleonic Wars and the two World Wars, which they say did threaten the life of the nation, and the current situation which does not. I do not think even the wildest advocate of the GWOT has ever claimed Usama is as powerful as Napoleon or Hitler was.

The UK Human Rights Act allows derogation only in face of a threat to the life of the nation and that is what the Lords’ judgment turned on.

Mark Bahnisch
Mark Bahnisch
2022 years ago

Nabs and Alan, yes, I’m aware of Lord Denning’s judgements in such cases – I just thought his remark was pithily put.

2022 years ago

The Irish points are well-raised. Not only were such measures appalling from a civil liberties stand point, their abuse generally just served to radicalise those falsely accused and detained and their communities.

We risk doing the same here.

Terrorism poses a significantly lower and more manageable risk to the life of a nation than open international warfare and aerial bombardment of capital cities.

The concept that the Executive needs powers to detain aliens on a scale to equal that which existed in the UK during the WWII Defence of the Realm Act is ridiculous.

Additional powers, yes. Exorbitant powers free from judicial review, no.