Chabal that deportees required an adjudication of their case before a court. Thus he concluded that the Commission did not have the authority the statute seemed to give it. But not only is it far from clear why courts inherently lack authority to review national security decisions, but the Commission was not composed of generalist judges. Rather, it was composed of one such judge and two experts, to whom one might argue a generalist court should consider deferring. Surely, that is, the point of the new scheme was not to establish an ineffective body, acourt with no real review authority, but to set up a body capable of delivering an ' effective remedy. The question why this alternative approach was not adopted becomes even more pressing when one notes that Lord Steyn and lord Hoffman are two of the judges responsible for articulating the principle of legality which lies behind that other approach, a principle which, in their view, requires that all executive acts be demonstrated to be justifiable in law, where law is assumed to include fundamental values. Thus in R/ Secretary of State for the Home Department, ex p Pierson, Lord Steyn said that Parliament does not legislate in a vacuum'but for a European liberal democracy founded on the principles and traditions of the common law.And in Rr Secretary of tate, ex p Simms, Lord Hoffman said that while Parliament can override fundamental rights, the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the all implications of their unqualified meaning may have passed unnoticed in the democratic I Ibid 133, 2 12Ibid139,W49 131997]3WLR492,at518
11 Chahal that deportees required an adjudication of their case before a ‘court’. Thus he concluded that the Commission did not have the authority the statute seemed to give it.12 But not only is it far from clear why courts inherently lack authority to review national security decisions, but the Commission was not composed of generalist judges. Rather, it was composed of one such judge and two experts, to whom one might argue a generalist court should consider deferring. Surely, that is, the point of the new scheme was not to establish an ineffective body, a ‘court’ with no real review authority, but to set up a body capable of delivering an ‘effective remedy’. The question why this alternative approach was not adopted becomes even more pressing when one notes that Lord Steyn and Lord Hoffman are two of the judges responsible for articulating the principle of legality which lies behind that other approach, a principle which, in their view, requires that all executive acts be demonstrated to be justifiable in law, where law is assumed to include fundamental values. Thus in R v Secretary of State for the Home Department, ex p Pierson, Lord Steyn said that ‘Parliament does not legislate in a vacuum’ but ‘for a European liberal democracy founded on the principles and traditions of the common law’.13 And in R v Secretary of State, ex p Simms, Lord Hoffman said that while Parliament can override fundamental rights, the principle of legality means that ‘Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic 11 Ibid 133, ¶ 29. 12 Ibid 139, ¶ 49. 13 [1997] 3 WLR 492, at 518
process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document. The puzzle is then why these two judges find that in some cases that they are driven to constitutional bedrock, which they find to be full of values and principles, while in others they find that the constitution amounts only to a very formal understanding of the separation of powers One response to this puzzle would be to point out that in the cases where the principle of gality was articulated, the people affected by the decisions were citizens of the United Kingdom whose fundamental rights- liberty, freedom of expression, and access to the courts-were affected by the executive decisions. But as Lord Slynn recognized in rebman, Rehman's liberty was at stake and he had family in the United Kingdom. Moreover, the argument about national security cannot be confined to the situation of someone who has not yet received resident or citizen status Suppose that argument is right and legislation is enacted that says that ' If the Secretary of State has reasonable cause to believe any person to be of hostile origins or associations or to have been recently concerned in acts prejudicial to public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to 1419993AIER400,at412. 15 Rebman h,131,"22
12 process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.’14 The puzzle is then why these two judges find that in some cases that they are driven to constitutional bedrock, which they find to be full of values and principles, while in others they find that the constitution amounts only to a very formal understanding of the separation of powers. One response to this puzzle would be to point out that in the cases where the principle of legality was articulated, the people affected by the decisions were citizens of the United Kingdom whose fundamental rights – liberty, freedom of expression, and access to the courts – were affected by the executive decisions. But as Lord Slynn recognized in Rehman, Rehman’s liberty was at stake and he had family in the United Kingdom.15 Moreover, the argument about national security cannot be confined to the situation of someone who has not yet received resident or citizen status. Suppose that argument is right and legislation is enacted that says that ‘If the Secretary of State has reasonable cause to believe any person to be of hostile origins or associations or to have been recently concerned in acts prejudicial to public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to 14 [1999] 3 All ER 400, at 412. 15 Rehman HL, 131, ¶ 22
exercise control over him, he may make an order against that person directing that he be taine This statute reproduces the infamous wartime regulation 18B considered in the equally infamous decision of the majority of the House of Lords in Liversidge r Anderson. The only protection detainees had was that they could make representations to an advisory committee, whose chairman had to inform them of the grounds of their detentions, so that they could make a case to the committee. The Home Secretary could decline to follow the advice but had to report monthly to parlament about the orders he had made and about whether he had declined to follow advice In liversidge, the issue was whether a court could require particulars about the grounds of a detention in order to test its validity and the majority held it could not despite the fact that the phrase reasonable cause'had been substituted for the if satisfied that' of the original regulations in order to head off a revolt in Parliament. In the majority's view, if the minister produced an authenticated detention order, the detainee had the onus of 16(1942 AC 207, hereafter Liversidge. order to test the ministerial practice of responding to Habeas Corpus applications by swearing an adami i iversidge's lawyer, DN Pritt, recounts in his memoirs that he brought an action for which simply asserted that the minister had reasonable grounds for his belief. That is, the plaintiff alleged that the defendant has without justification imprisoned him and so the defendant bore the onus of justifying the detention Pritt says that the point was to get the minister to see that he could not 'slide out by an affidavit, and therefore he would have to 'face up to the case, give his reasons, and let the Court judge of their reasonability At worst,, the Court would clarify the matter by deciding that the words reasonable cause'did not carry the meaning they had hitherto carried. He confidently expected a decision in his favour. DN Pritt, Te Autobiograply of DN Pritt: Part One: From Right to Lefr (Lawrence Wishart, London, 1965)304-7 See further AWB Simpson, In the Higbest Degree Odious: Detention W ithout Trial in IV artime Britain( Clarendon Press, Oxford 994), chapter 17
13 exercise control over him, he may make an order against that person directing that he be detained.’ This statute reproduces the infamous wartime regulation 18B considered in the equally infamous decision of the majority of the House of Lords in Liversidge v Anderson. 16 The only protection detainees had was that they could make representations to an advisory committee, whose chairman had to inform them of the grounds of their detentions, so that they could make a case to the committee. The Home Secretary could decline to follow the advice but had to report monthly to Parliament about the orders he had made and about whether he had declined to follow advice. In Liversidge, the issue was whether a court could require particulars about the grounds of a detention in order to test its validity and the majority held it could not despite the fact that the phrase ‘reasonable cause’ had been substituted for the ‘if satisfied that’ of the original regulations in order to head off a revolt in Parliament.17 In the majority’s view, if the minister produced an authenticated detention order, the detainee had the onus of 16 [1942] AC 207, hereafter Liversidge. 17 Liversidge’s lawyer, DN Pritt, recounts in his memoirs that he brought an action for false imprisonment in order to test the ministerial practice of responding to Habeas Corpus applications by swearing an affidavit which simply asserted that the minister had reasonable grounds for his belief. That is, the plaintiff alleged that the defendant has without justification imprisoned him and so the defendant bore the onus of justifying the detention. Pritt says that the point was to get the minister to see that he could not ‘slide out’ by an affidavit, and therefore he would have to ‘face up to the case, give his reasons, and let the Court judge of their reasonability.’ ‘At worst’, the Court would clarify the matter by deciding that the words ‘reasonable cause’ did not ‘carry the meaning they had hitherto carried’. He confidently expected a decision in his favour. DN Pritt, The Autobiography of DN Pritt: Part One; From Right to Left (Lawrence & Wishart, London, 1965) 304-7. See further AWB Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain (Clarendon Press, Oxford, 1994), chapter 17
establishing that the order was invalid or defective, basically showing that the minister had not acted in good faith Perhaps the House of lords would today differ from the majority in Liversidge by holding that, in the absence of any explicit statutory indication to the contrary, a detainee is entitled to a hearing at which he can contest the grounds for his detention and perhaps even to reasons for a decision to continue to detain him. But unless the grounds revealed at the hearing or the reasons given disclosed that either the policy or the decisions in terms of that policy are perverse, one which no reasonable minister advising the Crown could in the circumstances reasonably have held, the Court, as the House of Lords in Rebman tells us, uld not The perversity test is the test of w ednesbury unreasonableness, articulated by lord greene MR in Asociated prorincial picture Houses Ltd r Wednesbury Corporation. Lord Greene said that discretions were reviewable when unreasonably exercised, where unreasonableness means that the act isso absurd that no sensible person could ever dream that it lay within the powers of the authority. To illustrate what he meant by absurdity, Lord Greene adopted the example of the red-haired teacher, dismissed because she has red hair'. Now, Wednesbury unreasonableness is often thought of as an important step in the development of the modern law judicial review because it suggested that there were controls on discretionary authority. But, as Stephen Sedley has pointed out, we should not regard Wednesbury as a'sudden flash of light representing the 'modern sea change in public law, but 81948 1 KB 223, hereafter wednesbury
14 establishing that the order was invalid or defective, basically showing that the minister had not acted in good faith. Perhaps the House of Lords would today differ from the majority in Liversidge by holding that, in the absence of any explicit statutory indication to the contrary, a detainee is entitled to a hearing at which he can contest the grounds for his detention and perhaps even to reasons for a decision to continue to detain him. But unless the grounds revealed at the hearing or the reasons given disclosed that either the policy or the decisions in terms of that policy are perverse, ‘one which no reasonable minister advising the Crown could in the circumstances reasonably have held’, the Court, as the House of Lords in Rehman tells us, would not review. The perversity test is the test of Wednesbury unreasonablenesss, articulated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation. 18 Lord Greene said that discretions were reviewable when unreasonably exercised, where unreasonableness means that the act is ‘so absurd that no sensible person could ever dream that it lay within the powers of the authority.’ To illustrate what he meant by absurdity, Lord Greene adopted the example of the ‘red-haired teacher, dismissed because she has red hair’.19 Now, Wednesbury unreasonableness is often thought of as an important step in the development of the modern law judicial review because it suggested that there were controls on discretionary authority. But, as Stephen Sedley has pointed out, we should not regard Wednesbury as a ‘sudden flash of light’ representing the ‘modern sea change in public law’, but 18 [1948] 1 KB 223, hereafter Wednesbury