CONFIDENTIAL
6.
When the terms of a Statute afford the executive a discretion, whether wide or narrow, the review exercisable by the Courts in habeas corpus proceedings will bear solely upon the conformity of the exercise of that discretion with the empowering Statute. Although X had access to a Court which ruled that his detention was "lawful" in terms of English law, this cannot of itself be decisive as to whether there was a sufficient review of "lawfulness" for the purposes of Article 5(4).
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....in the Court's opinion, judicial review as limited as that available in the habeas corpus procedure in the present case is not sufficient for a continuing confinement such as the one undergone by X. The review should. be wide enough to bear on those conditions which, according to the Convention, are essential for the "lawful" detention of a person on the ground of unsoundness of mind, especially as the reasons capable of initially justifying such a detention may cease to exist."
When ratifying the UN Covenant the UK made a number of reservations and declarations. They are set out on pages 45 and 46 of Cmnd. 6702. The most relevant read:
7.
"The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, their acceptance of Article 12.4 and of the other provisions of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories."
"The Government of the United Kingdom reserve the right not to apply Article 13 in Hong Kong in so far as it confers a right of review of a decision to deport an alien and a right to be represented for this purpose before the competent authority.
The Attorney General of Hong Kong seeks to rely on the first of these two reservations. His letter of 20 December 1982 gives his reasons. A contrary view however is that this reservation can be regarded as covering no more than a short period of detention for so long only as may reasonably be needed for a decision to be taken as to whether to admit or deport the person concerned. That sort of deprivation of liberty is no doubt what occurs during the immigration procedures at Heathrow
/but
CONFIDENTIAL