of which one member had to have held high judicial office, the second had to have been the chief adjudicator or a legally qualified member of the Immigration Appeals Tribunal, the third would ordinarily be someone with experience of national security matters. The 1997 statute gave the individual who would have had the right to appeal against a deportation order but for section 15() a right to appeal to the Commission and the Commission itself the authority to review the Secretary of State's decision on the law and the facts as well as the question whether the discretion should have been exercised differently There was a further appeal to the Court of Appeal on any question of law material to'the Commissions determination. In addition, the statute provided for the appointment of a special advocate who could represent the appellant if parts of the proceedings before the Commission took place as closed sessions because it was considered necessary to keep information confidential In Rehman's case, the Commission rejected the argument that the question of what could constitute a threat to national security was a matter for the Secretary of State to decide. It said that the definition of national security was a question of law which it had jurisdiction to decide. It then found that the Secretary of State had interpreted the phrase national security'too widely since, properly understood, Rehman's alleged activities did not affect the United Kingdom's national security. National security, according to the Commission, included only activity which" targeted the United Kingdom or United Kingdom citizens wherever they may be, or activities against a foreign government which 'might take reprisals'against the United Kingdom. In addition, it found that the specific allegations did not meet the test it deemed appropriate in such cases, which it termed a test of a high civil 6
6 of which one member had to have held high judicial office, the second had to have been the chief adjudicator or a legally qualified member of the Immigration Appeals Tribunal, while the third would ordinarily be someone with experience of national security matters. The 1997 statute gave the individual who would have had the right to appeal against a deportation order but for section 15(3) a right to appeal to the Commission and the Commission itself the authority to review the Secretary of State’s decision on the law and the facts as well as the question whether the discretion should have been exercised differently. There was a further appeal to the Court of Appeal on ‘any question of law material to’ the Commission’s determination. In addition, the statute provided for the appointment of a special advocate who could represent the appellant if parts of the proceedings before the Commission took place as closed sessions because it was considered necessary to keep information confidential. In Rehman’s case, the Commission rejected the argument that the question of what could constitute a threat to national security was a matter for the Secretary of State to decide. It said that the definition of national security was a question of law which it had jurisdiction to decide. It then found that the Secretary of State had interpreted the phrase ‘national security’ too widely since, properly understood, Rehman’s alleged activities did not affect the United Kingdom’s national security. National security, according to the Commission, included only activity which ‘targeted the United Kingdom’ or United Kingdom citizens ‘wherever they may be’, or activities against a foreign government which ‘might take reprisals’ against the United Kingdom. In addition, it found that the specific allegations did not meet the test it deemed appropriate in such cases, which it termed a test of a ‘high civil
balance of probabilities, and it suggested that this failure occurred whether one adopted the Secretary of States wide or its own narrow definition of national securit In the Court of Appeal, Lord Woolf took the position on the first issue that the Secretary of State was entitled to rely on the wide definition of national security, which regards the promotion of terrorism against any state as capable of being a threat to national security. On the second, he reasoned that because the Commission had viewed the facts through the lens of its narrower definition, its approach was so different from the Secretary of State's correct' approach that the Commissions decision was flawed. The question of the danger posed to national security had to be treated not only as a matter of proof of individual allegations, but against the backdrop of the executives policy with regard to national security.Hence he remitted the matter to the Commission for redetermination following the approach he had ndicated to be correct The House of lords rejected Rehman's appeal against this decision, and in so doing made more explicit the normative structure of lord WoolS approach. In particular, Lord Hoffman reasoned that the Commissions approach was wrong both on constitutional grounds-the Commission had not understood what is entailed by the doctrine of the separation of powers-and because it did not understand what is involved in review of a primary decision-maker's findings of fact. On the separation of powers, Lord Hoffman said that what is meant by ' national security' is a question of construction and therefore a question of law within the jurisdiction of the 6 Rehman AC, 791
7 balance of probabilities’, and it suggested that this failure occurred whether one adopted the Secretary of State’s wide or its own narrow definition of national security. In the Court of Appeal, Lord Woolf took the position on the first issue that the Secretary of State was entitled to rely on the wide definition of national security, which regards the promotion of terrorism against any state as capable of being a threat to national security. On the second, he reasoned that because the Commission had viewed the facts through the lens of its narrower definition, its approach was so different from the Secretary of State’s ‘correct’ approach that the Commission’s decision was flawed. The question of the danger posed to national security had to be treated not only as a matter of proof of individual allegations, but against the backdrop of the ‘executive’s policy with regard to national security’.6 Hence he remitted the matter to the Commission for redetermination following the approach he had indicated to be correct. The House of Lords rejected Rehman’s appeal against this decision, and in so doing made more explicit the normative structure of Lord Woolf’s approach. In particular, Lord Hoffman reasoned that the Commission’s approach was wrong both on constitutional grounds - the Commission had not understood what is entailed by the doctrine of the separation of powers – and because it did not understand what is involved in review of a primary decision-maker’s findings of fact. On the separation of powers, Lord Hoffman said that what is meant by ‘national security’ ‘is a question of construction and therefore a question of law within the jurisdiction of the 6 Rehman AC, 791
Commission. However, he also said that that 'there is no difficulty about what"national security" means. It is the security of the United Kingdom and its people. Further, the question of whether something is "in the interests"of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive He rejected the Commissions argument that this line of reasoning would be such as to defeat the purpose for which the Commission was set up. It was 'important, he said, neither to blur nor to exaggerate the area of responsibility entrusted to the executive. Here he said that the factual basis for the executive 's opinion that deportation would be in the interests of national security must be established by evidence. And the limitations of the appellate process meant that the Commission was prevented from saying that although the Home Secretarys opinion that rehman was actively supporting terrorism in Kashmir had a proper factual basis, it did not accept that this was contrary to the interests of national security 7 Rebman HL, 139, 150. Hoffman had set the stage for his judgment in Rebman in "A Sense of Proportion"in M Andenas and F Jacobs(eds), European Commumity Law in the Englis Courts(Clarendon Press, Oxford, 1998) 149. See, especially, 153, the unjustified claim that"'In the hierarchy of values which the courts apply, the security of the State always wins,; and see also 158-9 8 Rehman Hl, 140, 54. He relied on lord Scarman's analysis ference to Chandler r DPP1962 3AllER 142,( 1964 AC 763)in Council of Ciril Serice Unions r Minister for tbe Cini/ Semice[1985 AC 374, 406; hereafter GCHQ. At 406-7, Scarman said that once the factual basis of a claim about national security is established by evidence, the courts will accept the opinion of the government as to what is required to meet it, unless the opinion is one which ' no reasonable minister advising the Crown could in the circumstances reasonably have held. He also claimed that this test did not demonstrate an abdication of the judicial function, but rather respected a limitation entirely consistent with the general development of the modern case Law of judicial review. Lord Steyn seemed a little ambivalent on this point in Rebman HL- see his oblique comment about Chandler at 134-5, 31
8 Commission’. However, he also said that that ‘there is no difficulty about what “national security” means. It is the security of the United Kingdom and its people.’ Further, the ‘question of whether something is “in the interests” of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.’7 He rejected the Commission’s argument that this line of reasoning would be such as to ‘defeat the purpose for which the Commission was set up’. It was ‘important’, he said, ‘neither to blur nor to exaggerate the area of responsibility entrusted to the executive.’ Here he said that the factual basis for the executive’s opinion that deportation would be in the interests of national security must be established by evidence.8 And the limitations of the appellate process meant that the Commission was prevented from saying that although the Home Secretary’s opinion that Rehman was actively supporting terrorism in Kashmir had a proper factual basis, it did not accept that this was contrary to the interests of national security. 7 Rehman HL, 139, ¶ 50. Hoffman had set the stage for his judgment in Rehman in “A Sense of Proportion” in M Andenas and F Jacobs (eds), European Community Law in the English Courts (Clarendon Press, Oxford, 1998) 149. See, especially, 153, the unjustified claim that ‘In the hierarchy of values which the courts apply, the security of the State always wins’; and see also 158-9. 8 Rehman HL, 140, ¶ 54. He relied on Lord Scarman’s analysis (by reference to Chandler v DPP [1962] 3 All ER 142, [1964] AC 763) in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 406; hereafter GCHQ. At 406-7, Scarman said that once the factual basis of a claim about national security is established by evidence, the courts will accept the opinion of the government as to what is required to meet it, unless the opinion is one which ‘no reasonable minister advising the Crown could in the circumstances reasonably have held’. He also claimed that this test did not demonstrate an ‘abdication of the judicial function’, but rather respected a limitation entirely consistent with the general ‘development of the modern case law of judicial review’. Lord Steyn seemed a little ambivalent on this point in Rehman HL – see his oblique comment about Chandler at 134-5, ¶ 31
Secondly, Lord Hoffman said that the Commission could reject the Home Secretarys opinion on the ground that it was one which no reasonable minister advising the Crown could in the circumstances reasonably have held. Thirdly, he said that an appeal to the "Commission may turn upon issues which at no point lie within the exclusive province of the executive. His example was the question whether deporting someone would infringe his rights under article 3 of the European Contention of Human rights and Fundamental Freedom.s because there was a substantial risk that he would suffer torture or inhuman or degrading treatment. Lord Hoffman said that the European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under article 3. If there is a danger of torture, the Government must find some other way of dealing with a hreat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative. 9 Lord Hoffman closed his judgment with this remarkable passag Postscnipt-I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic Relman Hl 140. 54
9 Secondly, Lord Hoffman said that the Commission could reject the Home Secretary's opinion on the ground that it was ‘one which no reasonable minister advising the Crown could in the circumstances reasonably have held’. Thirdly, he said that an appeal to the ‘Commission may turn upon issues which at no point lie within the exclusive province of the executive’. His example was the question whether deporting someone would infringe his rights under article 3 of the European Convention of Human Rights and Fundamental Freedoms because there was a substantial risk that he would suffer torture or inhuman or degrading treatment. Lord Hoffman said that the ‘European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under article 3. If there is a danger of torture, the Government must find some other way of dealing with a threat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative.’9 Lord Hoffman closed his judgment with this remarkable passage: Postscript – I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic 9 Rehman HL, 140, ¶ 54
process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove In a similar vein, Lord Steyn said that the dynamics of the role of the Secretary of State, charged with the power and duty to consider deportation on grounds of national security irresistibly supports this analysis. While I came to this conclusion by the end of the hearing of the appeal, the tragic events of 11 September 2001 in New York reinforce compellingly that no other approach is possible.' However, there is another approach possible and the question is why the House of lords and the Court of Appeal did not adopt it. This other approach would take seriously the faci that Parliament has set up a Commission, with review authority over both facts and law, staffed by a panel with expertise in law, immigration and national security and that the egislation responded to the fact that the prior statutory regime violated the human rights of individuals subject to decisions under its authority, in particular because the statute deprived individuals of an 'effective remedy' Rather than take seriously the legislative message in its context, the Courts chose to treat the new regime as a window dressing. Indeed, Lord Hoffman used the fact of legislative response to the decision in Chabal to undermine the message, by relying on a syllogism whose major and minor premises are strikingly flawed. He reasoned, first, that courts generally had no business reviewing national security decisions, and second, that the
10 process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.10 In a similar vein, Lord Steyn said that the ‘dynamics of the role of the Secretary of State, charged with the power and duty to consider deportation on grounds of national security, irresistibly supports this analysis. While I came to this conclusion by the end of the hearing of the appeal, the tragic events of 11 September 2001 in New York reinforce compellingly that no other approach is possible.’11 However, there is another approach possible and the question is why the House of Lords and the Court of Appeal did not adopt it. This other approach would take seriously the fact that Parliament has set up a Commission, with review authority over both facts and law, staffed by a panel with expertise in law, immigration and national security and that the legislation responded to the fact that the prior statutory regime violated the human rights of individuals subject to decisions under its authority, in particular because the statute deprived individuals of an ‘effective remedy’. Rather than take seriously the legislative message in its context, the Courts chose to treat the new regime as a window dressing. Indeed, Lord Hoffman used the fact of legislative response to the decision in Chahal to undermine the message, by relying on a syllogism whose major and minor premises are strikingly flawed. He reasoned, first, that courts generally had no business reviewing national security decisions, and second, that the Commission was such a court because it had been created in response to the criticism in 10 Ibid 142, ¶ 62