There is a hierarchy in that the politicians and officials have authority invested in them by the law through democracy, which means there is a hierarchy as the law is higher than the politicians and these politicians are above the people. It could be said that the people confer their rights on to the politicians when voting for them due to the nature of an electoral democracy1. The rule of law says that the judiciary and legislature should be equal. It has been said "The critical feature to the Rule of Law is that individual liberties depend on it.
Its success depends on the role of trial by jury and the impartiality of judges. "2 Therefore the judiciary also play a significant role in the law and as a result the relationship between the two should be equal. The concept of the rule of law first materialized with Dicey in 1885 and according to Lord Bingham of Cornhill his views "… had attracted considerable controversy over the years which had elapsed since then. "3 Dicey stated that there were three main principles to the rule of law.
The second point is the significant one as far as this discourse is concerned and it states: "; 2) every man is subject to the ordinary law of the land administered by ordinary and usual tribums" This is relevant when one looks at control orders, in that people are subjected to orders under the PTA, which are administered by the Home Secretary, and they are reviewed by the courts. Dicey did not approve of "… the propriety of conferring quasi-judicial and wide executive authority on administrative agencies"4
In Dicey's view, the amount of discretionary authority given to administrative agents would be arbitrary and as a result it would be outside the "ordinary law of the land"5 which we have seen being invested in regulatory agencies and tribunals of administrative law judges, such as the review of control orders as a civil procedure rather than a criminal procedure, when the control order is a result of the PTA 2005, and is there to prevent terrorist crimes being committed. Here it may seem that control orders are contrary to the rule of law.
This can be seen on the SIAC, which is an administrative agency that dealt with detainees under the ACSA. The argument that the SIAC must consist of at least one person who is a judge or has held judicial office and at least one who is an immigration judge6 may mean that it could be seen as a type of court, as it acted in the way an administrative court would be with regards to reviewing the certificate of detainees regularly and could grant bail to the detainees where appropriate7.
It is not a fully functional court, as there could potentially only be one person listening to the case who is a judge, with another having previously been a judge. Lord Nicholls agrees with this view when he said in the A case8 with reference to the SIAC deciding on the fate of the detainees "My Lords, indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford. Wholly exceptional circumstances must exist before this extreme step can be justified.
9" It was argued that as the UK is involved in the war on terror, the country was at a state of war and therefore the rule of law could be derogated from. In Liversedge v Anderson10, in the Second World War, it was held that this was not a valid reason to derogate from the rule of law. Here the point of law to be considered was "… whether the Secretary of State has power … to deprive the appellant of his liberty on the mere allegation that there is reasonable cause to believe certain things about him said to be prejudicial to the interests of the realm.
"11 This is similar to the current views on control orders, as the Home Secretary has the right to issue a control order for 28 days without judicial review if the home secretary suspects someone of terrorist activities. In Liversedge v Anderson12 Lord Atkin said in his judgement "The meaning … is that there is no condition, for the words "if the Secretary of State has reasonable cause" merely mean "if the Secretary of State thinks that he has reasonable cause. " The result is that the only implied condition is that the Secretary of State acts in good faith.
If he does that – and who could dispute it or disputing it prove the opposite? – the minister has been given complete discretion whether he should detain a subject or not. It is an absolute power which… , has never been given before to the executive, and … no such power is in fact given to the minister by the words in question. "13 This shows that even during times of war, the executive is not higher than the rule of law and the judiciary will still apply the rule of law, regardless of whether or not the country is at a time of war, which was the argument of the home secretary for detaining the defendants in the A case14.
Although Lord Atkin's judgement was dissenting from the rest of the Law lords, it is this judgement that is still referred to today as an indication that in the eyes of judges even in times of emergency the right of the individual is paramount, and has been quoted in recent cases on this subject, such as MB and AF. II) Why is the rule of law so important? The rule of law is such an integral part of our society that it binds us together along with a sense of community and as a result should perhaps be treated as sacrosanct, along with humanity and community.
If regimes which engage in torture and other abhorrent practices are condemned for failing to respect the rule of law15, then the rule of law is an important convention which should be followed above all others, yet with control orders being proactive rather than retroactive, it could be said that Britain is no better then the countries practicing the abhorrent practices as they are also going against the rule of law.
Although it seems logical to stop the suspected terrorists before they commit the act, cases like the Menezes shooting have shown us that this does not always work as mistakes can be made and as a result innocent people can be hurt.
The Rule of law was shown in action when the court dismissed the arguments of the Home Secretary for the A case, as he wanted to detain the prisoners until the law was changed to reflect a system which complied with the rule of law and the Human Rights Act, but was denied this by the courts, as the detainees although they were thought to potentially be dangerous, had done nothing wrong the rule of law prevented them from being able to be detained indefinitely.
III) Terrorism and the rule of law In A v Secretary of State for the Home Department, Lord Bingham of Cornhill said "… the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. "16 This shows the role of the judiciary in keeping to the rule of law in terrorist cases and in general.
One of the most important pieces of legislation that the judiciary must adhere to is that of the Human Rights Act 1998, as it is the role of the judiciary to ensure that all legislation is read in accordance with the HRA, including the terrorism legislation. The legislature can make derogations from the Human rights act in times of emergency.
When looking at terrorist cases, there must be some adherence to the rule of law, as is shown in the Guidelines on human rights and the fight against terrorism18, adopted by the European council of ministers on 11 July 2002, which states" All measures taken by states to fight terrorism must respect human rights and the principle of the rule of law … " This means that the Home Secretary can not claim that there is a war on terror and therefore the rule of law can be derogated from such as was done in the ACSA and also in the A case, as measures to fight terrorism are not able to derogate from the rule of law, regardless as to whether or not the state is in a state of war. The state must always pay attention to the rule of law.