The House Of Lords And The Government

Author:Paul Daly
Position:B.C.L., LL.M. (N.U.I.), Fulbright scholar and LL.M. Candidate, University of Pennsylvania Law School. I would like to thank Professor David Gwynn Morgan for his comments on a previous draft of this article. Any mistakes are the author's own
Cork Online Law R eview 2007 5
Daly, The House o f Lords and the
Losing Faith
Paul Daly*
If one is to take the language at face value, over the past decade and a
half, a shift has occurred in the relationship between England’s executive-
legislature and her judges. There is a marked contrast in the language of the
superior courts in two similar cases: the Court of Appeal decision in R v
Secretary of State for the Home Department, ex parte Cheblak1 and the
House of Lords judgment late in 2004 in A and Others v Secretary of State
for the Home Department.2 There were also interesting remarks from some
Law Lords in Secretary of State for the Home Department v Rehman.3 A
detailed analysis of the facts and the legal issues involved in each of these
cases is beyond the ambit of this note, but they do require a brief summary.
In 1991, the then Home Secretary, Mr Kenneth Baker, made a number
of deportation orders under the Immigration Act, 1971.4 The prevailing
political climate is an important consideration: war had just broken out in the
Persian Gulf and Iraq had made threats against those countries (which
included the United Kingdom) with which it was at war. Pursuant to those
threats, the British Government felt it appropriate to remove certain foreign
nationals from its territory. Mr Cheblak was detained and told that he would
be deported. No right of appeal was provided for in the legislation, although
the detainee was entitled to go before an expert panel and plead his case
against deportation. Mr Cheblak did not avail of this provision. Instead, he
sought a writ of habeas corpus. His case was dismissed by Brown J, as he then
was, at first instance and an appeal to the Court of Appeal was unsuccessful.
Of most relevance here is the following passage from the judgment of
the then Master of the Rolls, Lord Donaldson:
[A]lthough they give rise to tensions at the in terface, ‘national security’
and ‘civil liberties’ are on the same side. In accepting, as we must, that to
some extent the needs of national security m ust displace civil liberties,
albeit to the lea st possible extent, it is not irrelevant to remember that the
* B.C.L., LL.M. (N.U .I.), Fulbright scholar and LL.M. Candidate, University of Pennsylv ania
Law School. I wou ld like to thank Professor David G wynn Morgan for his comments o n a
previous draft of t his article. Any mistakes are the au thor’s own.
1 [1991] 1 WLR 890
2 [2004] UKHL 56
3 [2003] 1 AC 153
4 The most relevant provision of which was Section 3 (5): “A person who is not [a Britis h
citizen] shall be lia ble to deportation from the Unite d Kingdom … (b) if the Secretary of State
deems his deporta tion to be conducive to the public good … ”

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