Humpty Dumpty Rules or the Rule of Law: Legal Theory and the Adjudication of National Security DAVID DYZENHAUS* I know of only one authority which might justify the suggested method of construction. "When I use a word, Humpty Dumpty said in rather a scornful tone it means just what I choose it to mean, neither more nor less. The question is, said Alice, "whether you can make words mean so many different things. ""The question is, said Humpty Dumpty, which is to be master-that's all. .. After all this long discussion the question is whether the words 'If a man has'can mean 'If a man thinks he has. 'I am of the opinion that they cannot and that the case should be decided accordingly Lord Atkin, dissenting, Liversidge r Anderson, 1942 AC 207 at 245 Introduction Anti-terrorism legislation is in vogue after the terrible attacks on the United States of America in September 2001. It is not immediately clear why this should be so, even if there were a credible case to be made that the countries rushing to be fashionable are under real and novel threat. Their criminal law already makes any terrorist act a crime(with the exception perhaps of international money laundering) and a much more plausible reaction would be to devote more resources, on the international level, to understanding and dealing
1 Humpty Dumpty Rules or the Rule of Law: Legal Theory and the Adjudication of National Security DAVID DYZENHAUS* I know of only one authority which might justify the suggested method of construction. ‘“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master – that’s all.” …’ After all this long discussion the question is whether the words ‘If a man has’ can mean ‘If a man thinks he has.’ I am of the opinion that they cannot, and that the case should be decided accordingly. Lord Atkin, dissenting, Liversidge v Anderson, [1942] AC 207 at 245 Introduction Anti-terrorism legislation is in vogue after the terrible attacks on the United States of America in September 2001. It is not immediately clear why this should be so, even if there were a credible case to be made that the countries rushing to be fashionable are under real and novel threat. Their criminal law already makes any terrorist act a crime (with the exception perhaps of international money laundering) and a much more plausible reaction would be to devote more resources, on the international level, to understanding and dealing
with the political situations in which terrorism is fomented and, on the domestic level,to rethinking and strengthening security and intelligence. Terrorist legislation is not only an inherent threat to civil liberties but, as the dismal history of the implementation of the legislation shows, of little use in eradicating terrorism. History teaches us that the crimes of terrorism are best dealt with by using the ordinary law of the land effectively and that those caught in the net cast by terrorism statutes are more often than not the other'or the 'alien'-the illegal immigrants, the refugees who had opposed the political regime of their native land, people with a different skin colour, homegrown political dissidents, or anyone else who is already marginal or whom powerful groups would prefer to be marginal Indeed, those who take comfort in their homogeneity -in the fact that they are not other or alien-when terrorist legislation is enacted should note what Audrey Macklin has termed laws role in producing the alien within. Such legislation shifts the category of alien enemy out of the legal arena in which it often goes unnoticed because we don' t care much about those who have fragile legal status in our societies, or even want them out as soon as possible -refugee claimants and people subject to deportation because they are not yet citizens. It shifts the category of the alien into the ordinary law of the land, where the I On these points, see most of the essays in Ronald J Daniels, Patrick Macklem and Kent Roach(eds), Tbe Security of Freedom: Essays on Canadas Anti-Terrorism Bill ( University of Toronto Press, Toronto, 2001), especially the essays in the section, Criminalizing Terrorism, and on security, Mariana Valverde, Governing Security Governing Through Security,, 83. See also Adam Tonkins, ' legislating Against Terror: the Anti-Terrorism, Crime and Security Act 20012002] Public law 205. As Tonkins notes, the United Kingdom has derogated from the European Convention on Human Rights in respect of this statute 2 Audrey Macklin, Borderline Security, in Daniels, above n 1, 383, at 398
2 with the political situations in which terrorism is fomented and, on the domestic level, to rethinking and strengthening security and intelligence.1 Terrorist legislation is not only an inherent threat to civil liberties but, as the dismal history of the implementation of the legislation shows, of little use in eradicating terrorism. History teaches us that the crimes of terrorism are best dealt with by using the ordinary law of the land effectively and that those caught in the net cast by terrorism statutes are more often than not the ‘other’ or the ‘alien’ – the illegal immigrants, the refugees who had opposed the political regime of their native land, people with a different skin colour, homegrown political dissidents, or anyone else who is already marginal or whom powerful groups would prefer to be marginal. Indeed, those who take comfort in their homogeneity – in the fact that they are not other or alien – when terrorist legislation is enacted should note what Audrey Macklin has termed ‘law’s role in producing the alien within’.2 Such legislation shifts the category of alien enemy out of the legal arena in which it often goes unnoticed because we don’t care much about those who have fragile legal status in our societies, or even want them out as soon as possible - refugee claimants and people subject to deportation because they are not yet citizens. It shifts the category of the ‘alien’ into the ordinary law of the land, where the 1 On these points, see most of the essays in Ronald J Daniels, Patrick Macklem and Kent Roach (eds), The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (University of Toronto Press, Toronto, 2001), especially the essays in the section, Criminalizing Terrorism, and on security, Mariana Valverde, ‘Governing Security, Governing Through Security’, 83. See also Adam Tonkins, ‘Legislating Against Terror: the Anti-Terrorism, Crime and Security Act 2001’ [2002] Public Law 205. As Tonkins notes, the United Kingdom has derogated from the European Convention on Human Rights in respect of this statute. 2 Audrey Macklin, ‘Borderline Security’, in Daniels, above n 1, 383, at 398
ineliminably vague and political understandings of terrorist' and 'national security give to the executive a wide scope for dealing conveniently with those it considers to be threats I will not try here to answer the very interesting question of why the United States of America is in the moral panic that still seems to grip that nation or why so many other countries have succumbed to that same panic. Rather, I want to deal with the lawyers question, 'What is the proper legal response to terrorism statutes?where propermeans in light of our commitments to the rule of law. Since it is controversial what the content is of the rule of law, the lawyers question is, as we will see, also the legal philosophers question about the nature of law -how to unpack the idea of law in the phrase the rule of law Note that the lawyer's question might seem to be badly posed, since the proper response to terrorism is often thought to be a response outside, or largely outside, of the rule of law. The political issues involved seem outside the scope of control by law, where control means scrutiny by judges of the legality of executive decisions and action about national security. It is interesting in this regard that two of the most eminent constitutional lawyers in the USA men who have traditionally supported Democratic civil rights causes, are reputed to have testified to legislative committees in favour of President Bushs kangaroo, military tribunals Moreover, eminent judges in the common law world began to adopt something like this same reaction in anticipation of their country either getting a terrorism statute or revising the egal regime it already had for dealing with terrorism. If judges adopt such a stance in advance of any change of the law on the statute books, it will surely follow that the stance can only be invigorated after the change has been made
3 ineliminably vague and political understandings of ‘terrorist’ and ‘national security’ give to the executive a wide scope for dealing conveniently with those it considers to be threats. I will not try here to answer the very interesting question of why the United States of America is in the moral panic that still seems to grip that nation or why so many other countries have succumbed to that same panic. Rather, I want to deal with the lawyer’s question, ‘What is the proper legal response to terrorism statutes?’ where ‘proper’ means ‘in light of our commitments to the rule of law’. Since it is controversial what the content is of the rule of law, the lawyer’s question is, as we will see, also the legal philosopher’s question about the nature of law - how to unpack the idea of law in the phrase ‘the rule of law’. Note that the lawyer’s question might seem to be badly posed, since the proper response to terrorism is often thought to be a response outside, or largely outside, of the rule of law. The political issues involved seem outside the scope of control by law, where control means scrutiny by judges of the legality of executive decisions and action about national security. It is interesting in this regard that two of the most eminent constitutional lawyers in the USA, men who have traditionally supported Democratic civil rights causes, are reputed to have testified to legislative committees in favour of President Bush’s kangaroo, military tribunals. Moreover, eminent judges in the common law world began to adopt something like this same reaction in anticipation of their country either getting a terrorism statute or revising the legal regime it already had for dealing with terrorism. If judges adopt such a stance in advance of any change of the law on the statute books, it will surely follow that the stance can only be invigorated after the change has been made
here is, as we will see, one important difference between this academic response-the rule f law has no or little purchase when it comes to issues of national security-and the ldicial response Judges are unwilling to say that their role as guardians of the rule of law is either at an end or greatly reduced. Indeed, it seems impossible for them to conceive of their role other than as guardians of the rule of law and so, short of saying that they have no role to play in respect of a particular statute, they will claim that they are still upholding the rule of law There is, I will argue, something deeply interesting in the tension such judges experience Once we understand that tension, we have not only a better understanding of the basis for answering the question, "What is the rule of law?, but also a sense of how different camps in legal philosophy are helpful or unhelpful in constructing the proper, rule of law response to terrorism statutes. I will start by exploring that tension through a rather detailed analysis of two recent judicial decisions, one of the House of Lords, the other of Canada's Supreme Court. I will then explore the theoretical implications of the tension, as well as the implications of different legal theories for both its characterisation and resolution. Since the first step requires what for many will seem a tedious wade through a tunnel o administrative law, I should say that the theoretical light I purport to find at the end has to do with the role of legal positivism. I will argue, against the main trend in contemporary legal positivism, that legal positivism is committed for political reasons to a formal conception of the separation of powers and that it is this commitment that proves unhelpful in judicial review in general, and in particular in judicial review of national security decisions
4 There is, as we will see, one important difference between this academic response – the rule of law has no or little purchase when it comes to issues of national security - and the judicial response. Judges are unwilling to say that their role as guardians of the rule of law is either at an end or greatly reduced. Indeed, it seems impossible for them to conceive of their role other than as guardians of the rule of law and so, short of saying that they have no role to play in respect of a particular statute, they will claim that they are still upholding the rule of law. There is, I will argue, something deeply interesting in the tension such judges experience. Once we understand that tension, we have not only a better understanding of the basis for answering the question, ‘What is the rule of law?’, but also a sense of how different camps in legal philosophy are helpful or unhelpful in constructing the proper, rule of law response to terrorism statutes. I will start by exploring that tension through a rather detailed analysis of two recent judicial decisions, one of the House of Lords, the other of Canada’s Supreme Court. I will then explore the theoretical implications of the tension, as well as the implications of different legal theories for both its characterisation and resolution. Since the first step requires what for many will seem a tedious wade through a tunnel of administrative law, I should say that the theoretical light I purport to find at the end has to do with the role of legal positivism. I will argue, against the main trend in contemporary legal positivism, that legal positivism is committed for political reasons to a formal conception of the separation of powers and that it is this commitment that proves unhelpful in judicial review in general, and in particular in judicial review of national security decisions
Resiling from the rule of law? In Secretary of State r Rebman, ' the House of Lords dealt with the following issue. Rehman was a Pakistani national with temporary leave to stay in the United Kingdom. The security service had determined that he was involved with an Islamic terrorist organization and that, while it was unlikely that he would ever commit acts of violence in the United Kingdom, his activities were intended to further the cause of a terrorist organization abroad. On that basis the secretary of state ordered that rehman be deported In terms of Section 15()of the Immigration Act 1971, Rehman was deprived of any right to appeal against such an order because the ground of the decision was that his deportatio conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for reasons of a political nature Prior to 1997, there had existed what Lord Woolf in the Court of Appeal described as a non-statutory advisory procedure which allowed the deportee to appear before three advisors'to make representations to them and the three then advised the secretary of State as to whether he should adhere to his decision In ChabalrUk, the European Court of Human Rights held that the advisory penal did not give an effective remedy in terms of article 13 of the European Commention of Human Rights and Fundamental Freedom.s as it was not a '. The government responded with a statute in 1997 which established the Special Immigration Appeals Commission, a three person panel 32002 1 All ER 123, hereafter Rebman HI 42000 3 A ER 778, at 782, hereafter Rehman AC 5( 1996)23 EHRR 413, hereafter Chahal
5 Resiling from the rule of law? In Secretary of State v Rehman, 3 the House of Lords dealt with the following issue. Rehman was a Pakistani national with temporary leave to stay in the United Kingdom. The security service had determined that he was involved with an Islamic terrorist organization and that, while it was unlikely that he would ever commit acts of violence in the United Kingdom, his activities were intended to further the cause of a terrorist organization abroad. On that basis, the Secretary of State ordered that Rehman be deported. In terms of Section 15(3) of the Immigration Act 1971, Rehman was deprived of any right to appeal against such an order because the ‘ground of the decision was that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for reasons of a political nature.’ Prior to 1997, there had existed what Lord Woolf in the Court of Appeal described as a ‘non-statutory advisory procedure’ which allowed the deportee to appear before ‘three advisors’ to make representations to them and the three then advised the Secretary of State as to whether he should adhere to his decision.4 In Chahal v UK, 5 the European Court of Human Rights held that the advisory penal did not give an ‘effective remedy’ in terms of article 13 of the European Convention of Human Rights and Fundamental Freedoms as it was not a ‘court’. The government responded with a statute in 1997 which established the Special Immigration Appeals Commission, a three person panel 3 [2002] 1 All ER 123, hereafter Rehman HL. 4 [2000] 3 All ER 778, at 782, hereafter Rehman AC. 5 (1996) 23 EHRR 413, hereafter Chahal
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
