I last posted about the Times coverage of the House of Lords decision in A & Others v Sec of State for Home Office and have finally had a chance to go over the case report.
Here’s a few tidbits:
1) In my own opinion Lord Bingham’s ruling on the matter of the discriminatory nature of the section could have gone either way. It’s a rather ingenious argument put forward by A’s counsel and in spite of how counter-intuitive it might be is probably right at law.
2) As for quashing the order of derogation, I disagree with the findings but the courts apparently have this power, it was represented as something different in the article.
3) I had some faith in the Lawlords’ decision ruling as to the proportionality of the section which the Attorney General sought to qualify under Article 15. That was at least until I read Lord Hoffman’s judgment. Lets just say I was deeply unimpressed and I’m not entirely sure that his lordship approached the subject with all the analytical caution it necessitated.
Overall I feel that the plaintiff’s argument as to ‘racial discrimination’ was on a rather peripheral point of law but the Lawlords were probably correct in their judgment (the fact that ironically their argument had the effect of pointing out that they had a better deal than UK nationals is largely irrelevant, law and common sense don’t always mix). However having read Lord Hoffman’s take on proportionality and the nature of national emergency I can’t help but feel that his (and perhaps many other) decisions were highly political and lacked subtlety when deciding a question which is perhaps the trickiest of tasks for the forum - that of proportionality.
The courts left Wednesbury behind after Smith and Grady and as their heavy handed interpretation of Article 15 implies, they appear quite happy to assume a role which is rather too powerful for my liking.
I’m left wondering what Dr Michael Arnheim, my Constitutional Law lecturer would say about this.
Later
John
Posted by John Swaine at December 17, 2004 06:29 PM | TrackBack