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THE RT. HON THE LORD BINGHAM OF CORNHTLL (FORMERLY THE SENIOR LAW LORD AND LORD CHIEF JUSTICE FOR ENGLAND AND WALES)*
I am very grateful to the ABA and its officers for giving me the opportunity to speak this evening.
I propose to talk, quite briefly, about a single dissenting judgment given nearly 70 years ago. The judgment was given in a case (Lwmidge v. Anderson [1942] AC 206) which has no international, and no U.S., dimension. But it has something to say about the problems of terrorism, public emergencies, threats to national security and the detention of suspects without charge or trial. It may perhaps be seen as a legal morality tale apt for our times.
To understand what the case was all about, we must go back to the summer of 1939. During that summer, war with Germany had not begun but was widely believed in this country to be imminent. Contingency plans were being made. It was feared that if war came there would be people in the country-spies, agents, Nazi sympathisers-willing to help the Germans and undermine the security of the British state. A Bill was presented to Parliament to provide emergency powers to meet this crisis. Under the Bill, Defence Regulations could be made which would
"(a) make provision for the. . .detention ofpersons whose detention appears to the Secretary of State to be expethent in the interests of the public safety or the defence of the Realm".
There was some opposition on 24 August 1939, in the House of Commons, but the objections were not pressed, and this clause became law. Defence Regulations were then made, and the relevant regulation was famously numbered 18B. As originally drafted this said:
"The Secretary of State, if satisfied with respect to any particular person that with a view to prevent him from acting in any manner prejudicial to the public safety or the defence of the Realm it is necessary to do so, may make an order"
to detain that person.
I draw attention to the words "if satisfied". That wording made plain that the judgment was one for the Secretary of State alone, so a person who might be wholly innocent could be locked up, indefinitely, without trial, because the...