More Executive-Minded than the Executive

The English judiciary continues to show its habit of subservience to the government on security matters. In August 2013, David Miranda, who was carrying a hard disk with files from Edward Snowden for his partner who worked for the Guardian newspaper, was detained and questioned for nine hours at Heathrow airport.  He sought judicial review of his detention, and the authorities set up a justification under Schedule 7 of the Terrorism Act 2000. Schedule 7 entitles them to question anyone for the purpose of ascertaining whether he is “a person who … is or has been concerned in the commission, preparation or instigation of acts of terrorism” as defined in section 40(1)(b) of the statute.

But patently that was not the purpose of his detention.  There was no question of Miranda’s being involved in terrorism—no question at all. The purpose of the detention and questioning related entirely to the Snowden material he was carrying.

But last Wednesday three judges in the High Court—Lord Justice Laws and Judges Ouseley and Openshaw—ruled that it didn’t matter that there was an ulterior purpose. The detention could still be justified under section 40(1)(b).  They held unanimously that the authorities didn’t have to actually believe that Miranda was involved in terrorism: they were entitled to detain him to ascertain whether he was. On that reasoning I guess they could detain anyone against whom they had an independent grudge.  The judges did say the authorities had to act in good faith under Schedule 7, but they failed to even consider the issue of good faith, beyond a peremptory assertion that bad faith is not established by the mere fact that the police were going after the Snowden materials.

The provisions of the Terrorism Act are very broad, but you would think the judiciary would nevertheless insist that the authorities act within the terms of the statute, rather than giving them carte blanche—which is what this decision amounts to.  The terrorism statute is actually not a blanket authorization for detaining any person pursuant to just any concern about national security.  It has its criteria and the Courts should uphold them. In refusing to look behind the reasons for the detention, these three English judges have failed shamefully to uphold even the vestiges of the Rule of Law that the Terrorism Act leaves standing.

There are other issues in Miranda v. Home Secretary.  The judges genuflected towards the idea of press freedom but they argued that the authorities’ justification under Schedule 7 could easily outweigh society’s interest in that regard.  Which brings us back to the basic point: the authorities had no justification under Schedule 7—no justification at all—since they were only pretending that their purpose for questioning Miranda was to ascertain whether he was a person involved in terrorism. And our three judges were completely happy to be complicit in that pretense.

One other thing: the authorities could have proceeded under Schedule 5 of the Terrorism Act which entitles them to get hold of material relevant to a terrorist investigation. But the judges said “this submission lacks all practicality” since the requirements for a Schedule 5 order could not have been satisfied in time.  So, they concluded, the security services had to be permitted to proceed with the Schedule 7 charade.

There is something abject about all this. In his great dissent in the wartime case of Liversidge v. Anderson (1942), Lord Atkin wrote:

I view with apprehension the attitude of judges who … when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive.

England needs someone like Lord Atkin right now. But they won’t get that so long as judges like Ouseley, Openshaw, and Laws are occupying the bench in the interest of the security services. 

About the Author(s)

Jeremy Waldron

University Professor at New York University School of Law, Chichele Professor of Social and Political Theory at All Souls College, Oxford Follow him on Twitter (@JeremyJWaldron).