Indefinite imprisonment without charge is contrary to the rule of law because it deprives the detained person of the protection given to them by the process of criminal trial. The role of the judiciary, in a legal system based on the rule of law, is to make sure that legislation and ministerial decisions do not overlook the human rights of those adversely affected. In carrying out its role, the judiciary will give both Parliament and the executive an appropriate degree of latitude, which will depend upon: the nature of the matter being considered; the importance of the human right in question; and the extent of the encroachment upon the right. The courts will intervene only when it is apparent that, in balancing the various considerations involved, the primary decision-maker must have given insufficient weight to the human rights factor.

The Court of King’s Bench had to decide whether national security could be raised as a defence to an action in trespass to land and property.

The executive can do nothing without legal authority. Where a public authority claims to have the power to do something it must be able to identify the precise legal source of its powers.

Proceedings were brought against the Home Secretary for contempt of court. The House of Lords determined that the courts had jurisdiction.

The judiciary enforces the law against individuals, institutions, the executive, and against the individuals who from time to time represent the executive. A litigant complaining of a breach of the law by the executive can sue the Crown as executive bringing their action against the minister who is responsible for the department of state involved. The courts have power to grant remedies against a minister in their official capacity. If a minister has personally broken the law, the litigant can sue the minister in their personal capacity. The courts are armed with coercive powers exercisable in proceedings for contempt of court.

The House of Lords had to decide whether the Home Secretary had acted lawfully in the way he had dealt with the implementation of a scheme to provide compensation to the victims of violent crime.

The courts ensure that powers are lawfully exercised by those to whom they are entrusted, not to take those powers into their own hands and exercise them afresh. A claim that a decision under challenge is wrong leads nowhere, except in the rare cases where it can be characterized as so obviously and grossly wrong as to be irrational, in the lawyer’s sense of the word, and hence a symptom that there must have been some failure in the decision-making process.

The applicant, a Pakistani, arrived in the UK in 1993 after being granted entry clearance to work as a minister of religion. In December 1998 the Secretary of State refused his application for indefinite leave to remain in the UK and gave notice that, because of his association with an organization involved in terrorist activities in India, he had decided to make a deportation order under s 3(5)(b) Immigration Act 1971 on the ground that it would be conducive to the public good and in the interests of national security.

What is conducive to the public good is a matter for the executive discretion of the Secretary of State. The Secretary of State is entitled to take an overall view.

The interests of national security can be threatened not only by action against the UK but also indirectly by activities directed against other states.

While any specific facts on which the Secretary of State relies must be proved on the ordinary civil balance of probability, no particular standard of proof is appropriate to the formation of their executive judgement or assessment as to whether it is conducive to the public good that a person be deported, which is a matter of reasonable and proportionate judgement.