Nationality, Alienage and Constitutional Principle

Abstract:     
It is an aspect of political liberty, and thus of our common good, that we must accept the risk that some of our fellow citizens, being left at liberty, will abuse that liberty and do us harm, leaving us to ex post redress. Justice does not require that we accept the same level of risk from non-citizens. Authority to exclude and expel non-citizens (non-nationals, foreigners, aliens), and to detain them pending, and in order to effect, their removal from the national territory, is an instrumental aspect of the common good. Governmental powers, even the most basic, can atrophy unless understood as rooted in constitutional principles which, like competing constitutional principles such as equality before the law or liberty of movement and association, are aspects of the nation's common good. Inattention to the place of the expulsion power in a web of principles of reciprocity, trust, and differential obligation to accept risk, together with inexplicable neglect of both conventional and statutorily mandated norms of statutory interpretation, led to a thoroughly mistaken set of judgments in the leading case, A v. Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, decided by an almost uniquely large Appellate Committee of the House of Lords. All nine Law Lords overlooked their duty to interpret the statutory provision so far as possible as compatible with the Human Rights Act 1998 before declaring it incompatible. Even apart from that duty under HRA s. 3, there was available but unconsidered a reasonable interpretation such that the power to detain alien terrorist suspects had as its ongoing precondition a purpose, manifested in bona fide efforts, to deport them and to secure whatever arrangements with foreign governments might be necessary to make deportation lawful under the Chahal doctrine about real risk of torture or degrading treatment. The majority's arguments from irrationality and discrimination are manifestly unsound once the statute is interpreted as it should have been.

Accepted Paper Series