Britain's highest Court rejects anti-terrorism law
The background
In December 2004, the United Kingdom's supreme Court, (namely, the judges constituting the Appellate Committee of the House of Lords ) delivered judgement in a case brought by some men who, despite not having been convicted, or even charged, with any criminal offence, were being detained in Belmarsh prison, on the authority of the British Home Secretary Their situation was summarised by the senior judge, Lord Bingham of Cornhill, in these words:
" The appellants share certain common characteristics which are central to their appeals. All are foreign (non-UK) nationals. None has been the subject of any criminal charge. In none of their cases is a criminal trial in prospect. All challenge the lawfulness of their detention. More specifically, they all contend that such detention was inconsistent with obligations binding on the United Kingdom under the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998".
Because of its obligations under International Law, the British Government had no power to expel them from the country, even although Government Ministers believed, largely on the basis of intelligence information, that the men posed a terrorist type of threat to the United Kingdom.
Detention without trial
Detention without trial, and without charge, is effectively prohibited under Article 5 of the European Convention on Human Rights. However, following the events of 9/11, the British Government exercised its right to derogate from Article 5, on the basis of the Government's assessment of the risks posed to the country's security by certain people resident in the country. The Government persuaded Parliament to enact the Anti-terrorism, Crime and Security Act 2001 and, in terms of Section 23 of the Act, made an Order (the Human Rights Act 1998 (Designated Derogation) Order 2001), by means of which the Government acquired statutory powers to detain, without trial, aliens believed by ministers to pose a terrorist threat to the U.K. It was under that Order that the Home Secretary ordered the detention of these men.
Discrimination
Article 14 of the European Convention on Human Rights provides that the other rights expressed in the Convention are to be secured without discrimination on any ground such as sex, race...national origin etc. The Order did not empower Ministers to hold British citizens without trial: so it was plainly discriminatory. Although the Government derogated from Article 5, it did not derogate from Article 14.
The Government loses the case
The judges (by 8 votes to one) decided that the Order was illegal and that section 23 of the 2001 Act was incompatible with the Government's obligations under the European Convention on Human Rights. The precise reasons for the decision need to be studied in the judgments of the eight judges who determined the result. The reasons are given, in some 130 pages, on the website of the House of Lords .
The thinking behind the decision
Although there is no room here to explain the whole reasoning, it may be of value to quote from some of the judgements: in them, the judges sought to articulate deep constitutional truths about the role of Government and the limits to executive power, the independence and primacy of the judges in explaining and applying the law, and the overriding importance of the Rule of Law in the vindication of fundamental human rights and the protection of Democracy. The passages following (with, where appropriate some explanations) are from the judgements delivered by three of the judges .
Lord Hope of Craighead
"It is impossible ever to overstate the importance of the right to liberty in a democracy. In the words of Baron Hume, Commentaries on the Law of Scotland respecting Crimes, 4th Ed (1844), Vol 2, p 98: "As indeed it is obvious, that, by its very constitution, every court of criminal justice must have the power of correcting the greatest and most dangerous of all abuses of the forms of law, - that of the protracted imprisonment of the accused, untried, perhaps not intended ever to be tried, nay, it may be, not informed of the nature of the charge against him, or the name of the accuser."
"These were not idle words. When Hume published the first edition of his Commentaries in 1797 grave abuses of the kind he described were within living memory. He knew the dangers that might lie in store for democracy itself if the courts were to allow individuals to be deprived of their right to liberty indefinitely and without charge on grounds of public interest by the executive. The risks are as great now in our time of heightened tension as they were then."
Later Lord Hope added, "[The] margin of the discretionary judgment that the courts will accord to the executive and to Parliament where this right (the right to liberty)
is in issue is narrower than will be appropriate in other contexts. We are not dealing here with matters of social or economic policy, where opinions may reasonably differ in a democratic society and where choices on behalf of the country as a whole are properly left to government and to the legislature. We are dealing with actions taken on behalf of society as a whole which affect the rights and freedoms of the individual. This is where the courts may legitimately intervene, to ensure that the actions taken are proportionate. It is an essential safeguard, if individual rights and freedoms are to be protected in a democratic society which respects the principle that minorities, however unpopular, have the same rights as the majority. The intensity of the scrutiny will nevertheless vary according to the point that has to be considered at each stage as one examines the question that was referred to the Special Immigration Appeals Commission ("SIAC") under section 30 of the 2001 Act. This is whether the Derogation Order and Part 4 of the 2001 Act are incompatible with the appellants' Convention rights."
….[The] fact that the European Court will accord a large margin of appreciation to the contracting states on the question whether the measures taken to interfere with the right to liberty do not exceed those strictly required by the exigencies of the situation cannot be taken as the last word on the matter so far as the domestic courts are concerned. Final responsibility for determining whether they do exceed these limits must lie with the courts, if the test which article 15(1) lays down is to be applied within the domestic system with all the rigour that its wording indicates…(The test in Article 15 -the Article permitting derogation - is that derogation is permitted only to the extent strictly required by the exigencies of the situation"))... "
Lord Hope continued: " I am content ….to accept that the questions whether there is an emergency and whether it threatens the life of the nation are pre-eminently for the executive and for Parliament. The judgment that has to be formed on these issues lies outside the expertise of the courts….. But in my opinion it is nevertheless open to the judiciary to examine the nature of the situation that has been identified by government as constituting the emergency, and to scrutinise the submission by the Attorney General that for the appellants to be deprived of their fundamental right to liberty does not exceed what is "strictly required" by the situation which it has identified. The use of the word "strictly" invites close scrutiny of the action that has been taken. Where the rights of the individual are in issue the nature of the emergency must first be identified, and then compared with the effects on the individual of depriving him of those rights. In my opinion, it is the proper function of the judiciary to subject the government's reasoning on these matters in this case to very close analysis. One cannot say what the exigencies of the situation require without having clearly in mind what it is that constitutes the emergency."
Lord Hope then concluded, "I … would allow the appeals. I would quash the Human Rights Act 1998 (Designated Derogation) Order 2001. I would declare that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with the right to liberty in article 5 of the European Convention on Human Rights on the ground that it is not proportionate, and that it is incompatible with article 14 of the Convention on the ground that it discriminates against the appellants in their enjoyment of the right to liberty on the ground of their national origin."
Lord Hoffman's judgement included some passages that emphasise the importance of basic human rights and vindicate the essential role of the judiciary in a Democracy:
Paragraph (97): "The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory." (In saying that it was for Parliament to decide, Lord Hoffman was referring to the right of the Courts to decide if the Act of Parliament is "incompatible" with the European Convention on Human Rights, but it is then for Parliament to decide what had to be done with the legislation that the Courts have decided is incompatible with the European Convention on Human Rights)].
Referring to the arguments ("the submissions" made by the Attorney General), Lord Hoffman said:
"I do not accept the full breadth of the Attorney General's submissions. I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true…. that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic."
Lord Bingham made the same point,
"I do not in particular accept the distinction which he (the Attorney General) drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true, as pointed out in para 29 above, that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic."
Conclusion
What this case illustrates so powerfully is that, in a democracy, a truly independent judiciary will not hesitate to pronounce a judgement against the Government in the clearest possible terms - even if, as in this case, it judges that the Government has acted illegally and, even with the consent of Parliament, has transgressed the rights not just of British citizens but even of aliens that the Government regards as dangerous. It is as clear an example as we have seen in many, many years of the strength of judicial independence in the United Kingdom. All democrats, as well as constitutional lawyers, are now waiting to see if the Government accepts the inevitable and repeals or amends the legislation.
John McCluskey
28 December 2004
POSTSCRIPT ( 12 March 2005)
In the light of the Court's decision, the Government introduced new legislation. It had many purposes, including removing the element of discrimination referred to in the judgements quoted in the Article. But the new provision made it possible for the Government to detain British Citizens as well as Aliens. This caused a political outcry and led to a confrontation between the elected House of Commons and the unelected House of Lords. Eventually compromises were reached and amended legislation was passed by both Houses of Parliament. Some of those who had been detained were released. Persons detained in the future were given greater rights than before to have their detention considered by an independent judge.
see also: Rule of Law