Lord Tebbit proves once again that politicians need a crash course in the common law

One of Britain's most outspoken Conservative politicians has accused human rights lawyers of 'laughing all the way to the bank', after they successfully sued the government for illegal detention of a suspected bomb-maker in Afghanistan.

Writing his regular column in the Telegraph, Lord Tebbit has suggested that Sapna Malik, a partner at Leigh Day, which brought the case of Afghan farmer Serdar Mohammed, was not 'upholding' the law but merely profiting from a 'new injustice' from the Court of Appeal, due to the firm having around 80 similar cases in the pipeline.

As reported in SJ 159/30, Leigh Day successfully argued before the High Court in 2014 that while the UN Security Council resolutions adopted in respect of Afghanistan authorised British Forces to capture and detain Mohammed for up to 96 hours, they did not authorise his detention for approximately four months without charge or without allowing him to challenge his imprisonment.

Though the Ministry of Defence (MoD) appealed against those findings, a unanimous judgment in July from the Court of Appeal found there was neither the lawful authority to detain Mohammed after 96 hours, nor the requisite procedural safeguards in place to prevent his detention from becoming arbitrary.

The Lord Chief Justice, Lord Thomas of Cwmgiedd, together with Lord Justices Lloyd Jones and Beason held: 'It is a longstanding and fundamental principle of the common law that any interference with personal liberty by imprisonment is unlawful and gives rise to a claim in tort unless the person responsible for the imprisonment can show that it is justified.

'In the particular circumstances of [Mohammed's] case, there was no authority to detain either under the legal regime established by the United Nations or under the law of Afghanistan or under UK legislation.'

Speaking after the ruling, Leigh Day's Malik said: 'On the 800th anniversary of the Magna Carta, establishing that imprisonment should not occur without due legal process, the Court of Appeal's unanimous judgment is vitally important in upholding the rule of law even in the most trying of circumstances.

'The lord justices have rightly recognised the fundamental importance of the right to liberty, which requires a lawful authority for any detention and for core procedural safeguards to be afforded to a detainee, even in a situation of armed conflict.

'It is also reassuring to note that the court has affirmed that "to deny a remedy to a victim of a wrong should always be regarded as exceptional" and that "any exception must be necessary and requires strict and cogent justification", which were not found to be present in this case.'

However, this 'imperialist' ruling, from three distinguished judges, does not sit well with the Tory party grandee, who has argued that homosexuals should be barred from becoming home secretary, claimed Britain's Asians' don't know which side to cheer for at cricket matches, and who told BBC Newsnight that would-be UK citizens should be asked which side their forefathers fought for during the second world war.

'The case dates back to the time when our soldiers were doing their duty in Afghanistan, literally at risk to life and limb,' writes the former chairman of the Conservative party. 'It was war, and if the choice was between risking some injustice to a suspected Afghan [bomb-maker] or risking the life of a British soldier, I know which risk I would have taken.'

According to the once senior cabinet minister of the Thatcher government, this judgment illustrates the three most important issues facing the UK today: the judiciary is out of control, Labour's Human Rights Act must be replaced by a British Bill of Rights, and the greed of lawyers knows no bounds.

Yet if Tebbit's recent rant proves anything it is that - regardless of parliamentary experience - some commentators still need a crash course in the common law, and that ignorance is clearly bliss. It also suggests that, for some, the rights of an individual can be abolished if it is politically expedient to do so. While Tebbit no longer holds the political clout he once enjoyed, there are others ready to take up his mantle, which is, arguably, more disconcerting than his latest observations.

John van der Luit-Drummond is deputy editor for Solicitors Journal