In visible radiation of the legal theory below, critically assess the opinions inA V Secretary of State for Home Department[ 2004 ] UKHL 56. What, if anything can the opinions tell us about legal theory?
The inquiry posed here provides a singular scope of issues that are available for analysis by agencies of legal theory. The legal, political, societal and moral concepts that provide the underpinning to the assorted attacks taken by the House of Lords inA 5 Home Secretary[ 1 ] are non capable of a simple pigeon holing into a defined class.
It is submitted that the most buttery analysis ofA 5 Home Secretaryis achieved through the usage of rationalist theory to analyze all of the sentiments contained within the opinion. The positive attack of H.L.A Hart as developed and advanced through his ain Hagiographas and those of subsequent subscribers and observers, is employed to set up the necessary analytical model.
Where necessary, other legal theories are employed to explicate distinguishable characteristics of the opinion, peculiarly the relationship between the Lords’ sentiments and the application of the regulation of jurisprudence.
TheAnti-terrorism, Crime and Security Act[ 2 ] ( ‘the Act’ ) is a clear manifestation of positive jurisprudence rules. The terrorist menace advanced by al-Qa’ida that exploded in the September 11, 2001 onslaughts in the United States had been rumbling throughout the Western universe since the 1980s. The menace to states such as Canada [ 3 ] and the UK was perceived to be more acute due to the strong confederations that each state had with the United States.
The Act was an amendment of statute law passed in 2000 in the UK [ 4 ] in response to this lifting menace. Further, it is of some significance that the UK had extended experience with terrorist incursions chiefly originating from the struggle in Northern Ireland ; those domestic menaces had besides been the topic of statute law that imposed bounds on what were otherwise civil autonomies. [ 5 ] These background points are of significance because the UK had an unfortunate domestic history with Irish-based terrorist act that provided its authorities with a degree of experience and penetration into terrorist activities.
The Act possesses the undermentioned distinguishable characteristics:
- the power to collarsuspectedterrorists
- the power to behave non-UK subjects who are suspected terrorists
- the power to confine those non-UK terrorists who could non be deported without breach of European and International conventions [ 6 ]
The UK authorities was permitted to minimize from the commissariats of the Human rights Act and the ECHR sing the right to drag and the right to dispute detainment as the fortunes of the terrorist menace constituted a public exigency and exceeding circumstance. [ 7 ]
The conflict lines were clearly drawn by the clip the present entreaty was heard in 2004, as all plaintiff in errors were non-UK subjects ; none were charged with a condemnable offense ; none were likely to be charged ; all challenged the legality of their detainment and the legality of the disparagement order as one that contravened the ECHR. [ 8 ]
The Act is proffered as a authoritative illustration of a rationalist passage because it embodies the duplicate ideals of ( 1 ) statute law is non connected to moral concerns ; the authorities acknowledged that the plaintiff in errors were a minority section in society but the greater good and the bar of terrorist act must predominate ; ( 2 ) the Act pays little heed to the construct of human rights of the related moral considerations of favoritism being carried out by the authorities against a defined section of the population
The Act seeks a legislative consequence absent moral considerations, a cardinal rule of rationalist theory that has been developed since the clip of Austin. [ 9 ]
As emphasized an illustration of positive jurisprudence is represented by the Act, the House of Lords opinions that the disparagement Order was illegal and that the capable subdivisions of the Act were incompatible with the ECHR was a victory of natural jurisprudence rules recast in modern clip. The natural jurisprudence focal point of the Lords’opinions are frequently masked with the clinical linguistic communication of statutory reading,stare decisis, and the rule of proportionality. All of these devices disguise an attack [ 10 ] that is merely the jurisprudence being employed as a moral instrument for a moral intent.
In the decision to this paper, the subsequence determination,A & A ; Ors v. Secretary of State for the Home Department ( No.2 )[ 11 ] takes the natural jurisprudence attacks of the current determination to their logical decision. As is suggested in greater item below, the entireness of the House of Lords attack is in general agreement with the rules of legal positivism as explained by Hart. [ 12 ]
Hart had written in 1976 that ‘… at a clip when…substantive issues of societal policy are much discussed in footings of single rights, we still need a satisfactory theory of basic human rights and their relationship with other values pursued through the jurisprudence. So excessively, if positivism in law is to be eventually laid to rest, we still need a presentation that an expanded construct of jurisprudence, which includes for every legal system a alone set of justicatory rules as a modesty for the solution for difficult instances, will light and non befog the description and public presentation of the judge’s task” . [ 13 ]
This peculiar choice from Hart’s extended Hagiographas is non as widely quoted as others frequently taken from his work but it is one clearly of direct application in the present reappraisal. Both the anti-terrorism statute law as enacted by the authorities and the House of Lords sentiments fall neatly within the parametric quantities of the issue as Hart has characterised it. From the authorities position, engaged in doing a proper response to a profound menace to the UK, the Act is an effort to decide a ‘hard case’ that would apparently name for a alone consideration. From the Lords position, their attack, although non jointing a specific legal theory, clearly see the issues from the position of an ‘expanded construct of law’ , where the tribunal melds rules of jurisprudence, societal policy and basic human rights.
In this context, the words of Lord Bingham, the taking expounder of the Lords place make a compelling connexion to the thoughts expressed by Hart. A true rationalist ( and those who hold authoritative conservative political values ) would non accept the failure of a tribunal to keep the constructs of morality and jurisprudence as separate. Lord Bingham explained the Lords place in footings that endorse such attacks ( the followers points are non thorough ) :
- The trust upon Chahal in the context of a terrorist menace ; where a UK non-national faces anguish or the decease punishment if deported, no detainment is lawful even where there is a menace to national security [ 14 ]
- Disparagement is an exceeding step necessitating existent and at hand danger ; Lord Bingham limits the government’s purported respect in policy affairs through strict application ofstare decisisrules [ 15 ]
- Other states were besides threatened with terrorist activity in Europe ; merely the UK employed disparagement
- The authorities discretion must be given respect and ‘great weight’ ( a rationalist sentiment ) ; the Lords sidestep this barrier with the place that, among others, the ECHR commissariats can non be overridden with authorities respect entirely [ 16 ]
- The ‘libertarian’ tradition of UK Torahs is emphasised and juxtaposed with Article 5, ECHR [ 17 ]
- The regulation of jurisprudence is highlighted as a ‘cornerstone’ of UK justness [ 18 ]
- The Lords do a field policy based dictum in their averment that the differing criterions for the detainment of UK and non-UK subjects may lend to the export of terrorist act [ 19 ]
It is apparent that The House of Lords adopted an attack to the issues raised by the Act and disparagement from the Human Rights Act and the Convention that is one that is similar in its executing to the theoretical proposal of Hart described above. The Lords have obviously used conventional legal theory to accomplish a policy terminal. It must be emphasised that the mode in which the Lords approached the hard fortunes presented has important virtue. The modern moral force of domestic considerations being adjudicated against a assorted background of UK case in point, European Community jussive moods and domestic policy concerns is a scenario that is far more ambitious for the bench than has of all time existed in UK legal history. As Hart suggested 30 old ages ago, a satisfactory theory of basic human rights vis a vis the jurisprudence is necessary ; the present instance represents such an attempt. The unfavorable judgment of the determination is non its methodological analysis or consequence, but the fact that the Lords were non prepared to clearly province that theirs was a blended attack of jurisprudence, policy, and human rights considerations.
There are other powerful illustrations within the opinion that make this pint efficaciously. Lord Nicholls stated the issue on the entreaty in authoritative footings – ‘…Indefinite imprisonment without charge or test is anathema in any state which observesthe regulation of jurisprudence. ( accent added ) ’ [ 20 ] Lord Nicholls so held that the authorities attempt to supply an option in the context of the legislative strategy that would relieve the effects of indefinite detainment, the alleged ‘prison with three walls ( so named because detainees retained their rights to go forth the UK ) was found desiring as apolicystep.
Lord Hoffman attacked the Act sidelong, with the searching observation that the same UK authorities had relied upon defective grounds as to the being of arms of mass devastation in the lead up to UK engagement in the Iraq war. One may inquire whether there could be a more powerful policy, as opposed to application of legal theory, than this unfavorable judgment of the statute law. [ 21 ] The point hinted at in these observations is apparent – that if the authorities could non be trusted to manage the Iraq state of affairs, should the same authorities be trusted now? In a similar vena Lord Scott indicated that the impact of the declaration of mutual exclusiveness was ‘political’ , non legal. [ 22 ]
Lord Hope engaged in possibly the purest legal analysis of the Act, as his grounds do non include the same grade of political and societal overtones. Lord Hope turns the useful attack on its caput, in keeping that the province may non know apart against an unpopular minority for the good of the bulk. [ 23 ]
The opinions of the House of Lords taken together, may be seen as progressing a cardinal rule of jurisprudence – ‘…there is one residuary rule that backs them all up and gives counsel where they are soundless. This is the rule that human felicity ought to be promoted and misery prevented every bit far as possible. Through its application, human love to a grade replicates godly love. Hence, within many subdivisions of natural jurisprudence thought, the utility, or ‘utility ‘ of human Torahs for continuing rights derivable from higher jurisprudence and, beyond that, for furthering human felicity in general, has been one land for commending such Torahs, or for urging betterments in them.’ [ 24 ]
The full impact of the predominately natural jurisprudence attack ( or assorted jurisprudence attack as per Hart ) is appreciated when one reviews the subsequence opinion,A & A ; Ors v. Secretary of State for the Home Department ( No. 2 )[ 25 ].The issue before the House in the subsequence instance was of a different character – the admissibility of grounds obtained by anguish where the UK was non complicit in the anguish.
Lord Bingham set out a drawn-out analysis of the common jurisprudence and the topographic point of anguish within that model. He and the other Lords were consentaneous that anguish had no topographic point in the UK common jurisprudence system, a compendious commentary that engaged rules of morality, the natural jurisprudence, stare decisis, and the regulation of jurisprudence.
Lord Bingham besides interjected into the analytical model two impressions that extended the moral considerations. The first was the construct of a ‘civilised society’ [ 26 ] and the desire to keep civility absent anguish. This mention invites the rhetorical inquiry of whether or to what extent a civilized society may utilize harsh or barbarian agencies to continue civility?
The 2nd moral ejaculation was the commendation with blessing of the Supreme Court of Canada determination inOickle. [ 27 ] Oickle, and other recent Canadian and American instance jurisprudence, stands for the proposition that certain authorities actions can be disavowed by a tribunal if the actions is seen as one that ‘shocks the community standard’ . Oickle is the merchandise of a legal power with a written fundamental law ; nevertheless, the evident lift of this rule to a criterion to be invoked in the UK tribunals is a farther going from any clasp that positivism may hold exerted in these constitutional considerations. The House of Lords has re-established the primacy of morality in the mode that the Court will measure authorities action.
Hart’s preparation of jurisprudence as one compromised of primary and secondary regulations is good known. It is submitted that the attack adopted by the House of Lords to the thorny issues of jurisprudence, morality, human rights and societal policy inA 5 Home Secretaryis in general agreement with Hart.
Austin, John ( 1863 )The Uses of the Study of Jurisprudence( erectile dysfunction. H. L. A. Hart London, 1954 )
Freeman, M. D. A. ( 1998 )Legal Theory at the End of the MillenniumOxford: Oxford University Press
Hart, H.L.A. ( 1976 ) ‘Law in the position of doctrine: 1776 – 1976’ , 51New York University Law Review, 538-551
Hart, H.L.A. ( 1961 )The Concept of LawOxford: Clarendon
Table of Cases
A & A ; Ors v. Secretary of State for the Home Department[ 2005 ] UKHL 71
( 8 December 2005 )
A & A ; Ors v. Secretary of State for the Home Department[ 2004 ] UKHL 56
Brannigan and McBride VUnited Kingdom( 1993 ) 17 EHRR 539
Chahal VUnited Kingdom( 1996 ) 23 EHRR 413
Irish republicVUnited Kingdom( 1978 ) 2 EHRR 25 ;
MarshallVUnited Kingdom( 10 July 2001, Appn. No. 41571/98 )
R V Oickle[ 2000 ] 2 SCR 3
Table of Legislative acts
Anti-terrorism, Crime and Security Act2001 ( Part 4 )
Human Rights Act 1998( Designated Derogation ) Order 2001 ( SI 2001/3644 )
European Convention on Human Rights
Terrorism Act, 2000