#19886 - Belmarsh Casenotes - Constitutional Law

Belmarsh Casenotes

Leckey

Kavanagh – against the strike-down power of the US, a declaration has ‘no immediate impact on the legislation and gives no immediate benefit to the litigants’.

Canadian courts have a strike-down power. But they don’t use it immediately. If Belmarsh were a Canadian case, the litigants would not have received a remedy, because Canadian judges view the strike-down as a constitutional bomb. They recognise it should specify a term after which the strike-down would take effect. It effectively forces the legislature to change the offending legislation or it will declare it null and of no effect. In deference to Parliament’s prerogative to tackle a policy issue, the Canadian Supreme Court will delay its strike-down. The fact Canadian judges are hesitant to use this power suggests that if UK courts were given the same power, there wouldn’t be a practical difference to applicants in cases.

Competing readings of s.4 hra. On some, it prompts courts to engage the legislature. Political constitutionalism – judges should refer questions back to parliament (Tomkins). Courts might use s.4 to present their thoughtful opinion on rights, which Parliament can use or substitute providing it’s willing to pay the political price (Nicol). On a different reading, s.4 is not an engine for dialogue, but a concession to the difficulties inherent in judicial law-making (Hickman). Judges might use s.4 when bringing the law in line with rights and this involves radical reform which is generally not open to judges (Kavanagh).

James Allan thinks s.3 HRA is strong-form review. Parli can ignore a s.4 declaration, but it has to act positively to mitigate the effect of a s.3 use. Heydon thinks s.3 gives UK courts more power than courts tasked with administering an actual bill of rights.

Thinks US scholars have exaggerated the effects for victims of rights violations of courts not having a strike-down power because in Canada they delay use of strike-down.

Gailani – note: Cambridge student law review

Defends HL decision. Gvt couldn’t come up with a good justification. Probably could’ve been quashed on the basis of irrationality because the detainees were free to leave if a safe third country could be located to receive them. Hale – ‘what sense does it make to consider a person such a threat to the life of the nation that he must be locked up without trial, but allow him to leave… for France where he was released almost immediately.’ If suspected foreign terrorists were as big a threat as the gvt made them out to be, this allowance makes no sense. But this might have missed the point.

Gvt fundamentally couldn’t give a justification for why suspected foreign terrorists were locked up without trial when, by their admission, there were British nationals of equal or greater danger.

Lord Atkin in Liversidge v Anderson – flamed his colleagues who had ‘proved themselves more executive minded that the executive’. But Lord Denning MR in Hosenball said the conflict of national security and individual freedom is not a balance to be struck by the courts. It’s for the home secretary as parliament trusted him to do it. Similarly, Lord Hoffmann in Rehman agrees the court was ‘not entitled’ to differ from the Home Secretary’s view of what was in the interests of national security. This is somewhat in conflict with Belmarsh. Lord Hoffmann said ‘the real threat to the life of the nation… comes not from terrorism but from laws such as these. This is the true measure of what terrorism may achieve. It is for Parliament to decide...