Chapter

The Early Challenges in the Courts

A. W. Brian Simpson

in In the Highest Degree Odious

Published in print November 1994 | ISBN: 9780198259497
Published online March 2012 | e-ISBN: 9780191681974 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198259497.003.0014
The Early Challenges in the Courts

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The original Regulation 18B was designed to give the Home Secretary an arbitrary power of executive detention; neither its scope nor its validity were ever raised in the courts. The amended 18B was undeniably legally valid, but its more specific text appeared to set limits to the powers of the Home Secretary; potentially the courts had a role in ensuring that these limits were observed. The judges, if they wished, could hold detention illegal if it did not satisfy whatever requirements they regarded as the tolerable minimum. They could play an active part by setting firm limits to the discretionary power conferred on the executive, and by spelling out more precisely the rights of a detainee. Alternatively they could be passive, accepting more or less anything which emanated from the Home Office. And there was nothing in the text which ruled out applications to the courts for habeas corpus, or other legal remedies. The first case to come before the courts involved the colonial Civil Servant, Aubrey T. O. Lees.

Keywords: Regulation 18B; executive detention; Home Office; courts; discretionary power; detention; habeas corpus; Aubrey T. O. Lees

Chapter.  9577 words. 

Subjects: History of Law

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