Thursday, December 16, 2004
The Law Lords have decided — Let those people go!
According to the Guardian,
Lawyers for the detainees had challenged the lawfulness of Britain's opt-out of Article 5 of the European Convention on Human Rights, the right to liberty. The convention guarantees the right to be brought to trial within a reasonable time or be released.
Lord Nicholls of Birkenhead ruled that: "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."
This is a wonderful decision, which we can only hope will be discretely passed along to the U.S. Supreme Court for their edification.
The actual effect of the ruling, however, is not to obtain the current prisoners' immediate release—
A Home Office spokeswoman said it was now a matter for parliament to decide whether detention without trial continues. In the meantime, the suspects will remain behind bars, she said.
The Law Lords are themselves members of Parliament, and Britain does not have our "Separation of Powers" doctrine by which the Law Lords are independent of the legislature, so to analogize them to the U.S. Supreme Court is a bit off the mark.1 However, the ruling has sufficient force that amendment of the anti-terror law is anticipated.
This vexatious ruling came within hours of the introduction of Charles Clarke to his new job as Britain's Home Secretary. He is expected to be working today on promoting his predecessor's plan for a national ID card. The Lords' ruling may temper Parliament's enthusiasm for the plan.
Anti-human-rights law to go to the Law Lords
The Lords cannot exercise judicial review over, or in any way strike down Acts of Parliament under the doctrine of Parliamentary sovereignty. In common with other courts in the European Union, however, they may refer points involving European Union law to the European Court of Justice. The Lords may also declare a law inconsistent with the European Convention on Human Rights pursuant to section 4 of the Human Rights Act 1998. Whilst this power is shared with the Court of Appeal and the High Court, such declarations are considered so important that the question will almost inevitably be determined in the House of Lords on appeal. However, the challenged law in question is not automatically struck down; it remains up to Parliament to amend the law.[back]