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
• Pages: 45-54

Cork Online Law R eview 2007 5

Daly, The House o f Lords and the

Government

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THE HOUSE OF LORDS AND THE GOVERNMENT

Losing Faith

Paul Daly*

A INTRODUCTION

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.

B CHEBLAK’S CASE

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

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* 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 … ”