Lord Hoffmann, on the other hand, chose to undertake an examination of the quality and nature of the threat of terrorism to the UK and found that it did not constitute a ‘war or other public emergency threatening the life of the nation’. He further held that it was insufficient merely to produce evidence of a credible plot to commit terrorist outrages since that did not meet the need to show that the threat of terrorism constituted a public emergency threatening the life of the nation. According to Lord Hoffmann:
The Armada threatened to destroy the life of the nation, not by loss of life in battle, but by subjecting English institutions to the rule of Spain and the Inquisition. The same was true of the threat posed to the United Kingdom by Nazi Germany in the Second World War. This country, more than any other in the world, has an unbroken history of living for centuries under institutions and in accordance with values which show a recognisable continuity … I am willing to accept that credible evidence of such plots exists. The events of 11 September 2001 in New York and Washington and 11 March 2003 in Madrid make it entirely likely that the threat of similar atrocities in the United Kingdom is a real one …This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al‑Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.[54]
Lord Hoffmann explicitly held that there were legal limits to the Government’s capacity to determine when a situation of public emergency existed, and further, that the Government was in fact wrong to declare a situation of public emergency in the aftermath of 9/11. In doing so, he did not grant the Government a wide margin of appreciation with regard to the designation issue. As a consequence, he also did not address the question of whether the Government’s measures adopted in s 23 ATCSA were ‘strictly required’ (ie, the interference issue).
What is remarkable about Lord Hoffmann’s judgment is that he is able to determine, without access to specific intelligence information, that the current threat of terrorism to the UK does not threaten the life of the nation. In fact, he explicitly accepts that there is a serious terrorist threat to the UK. But this threat is put into perspective by drawing comparisons both to historical threats to the UK and more recent manifestations of terrorism like the 9/11 attacks and the Madrid train bombings. And so the Government’s general policy decision about the nature and quality of the threat of terrorism is submitted to judicial scrutiny despite lack of access to specific intelligence information.