Public Law 1 Assessment Example

Focusing on the rights of detainees, critically review the extent to which you consider that the English courts have upheld the duty within the European Convention on Human Rights to treat people with dignity and respect

In discussing whether the courts upheld their duty within the European Convention of Human Rights to treat people with dignity and respect in regards to detainees, it is necessary to address; primarily and most obviously the protection of their liberty. However, other rights also play a pivotal role here; for example the freedom of mistreatment, inhumane conduct or torture towards individual's within their stay of detention. The courts have made a vital contribution in protecting these rights since they became domestically binding by way the Human Rights Act 1998. However, as we shall see, when the courts find themselves entangled in such matters as National Security and terrorism it becomes more difficult to uphold such rights in mind to the many other political and constitutional factors involved within the conflict of Liberty v Security and the moral and conceptual conundrums at work in the discussion of unalienable rights.

The A cases No 1 and 2 are paradigm examples of the difficulties the courts face in circumventing the structural relations within the UK constitution in order to uphold individual liberty, the rule of law and HR against the backdrop of an overreaching Government imposing legislation that threatens to undermine each of these doctrines.

The A case No 1 (Belmarsh) concerns nine non-British national suspected terrorists appealing to SIAC, challenging the compatibility with ECHR and lawfulness of the scheme of indefinite detention they were subjected to under the Anti-Terrorism Act. In order to commit to the scheme the government's simplest and most practical option was to derogate from Article 5 permitted by Article 15; keeping in mind that they could not deport the suspects to countries where they might be tortured as this would be a breach of the non-derrogable Article 3. The appeal was allowed on two grounds; (1) proportionality, namely "Article 15 requires that any measures taken by a member state in derogation of its obligations under the Convention should not go beyond what is strictly required by the exigencies of the situation", and the immigration measure did not rationally address the threats to national security as it only applied to a small minority group of foreign nationals. (2) Discrimination; as the sample of foreign nationals was based on policies of immigration; not whether they were perceived as a threat.

This case signifies an unequivocal reprimand for the executive setting up a scheme far removed from the democratic sense of justice society has come to expect, however it also shows the difficulties in opposing the executive in such matters. It has been argued that the particular stance the judges took was somewhat incomplete or imperfect. Furthermore, a criticism follows indicating that, although the courts were successful in abolishing this particular scheme, their judgement does not attempt to address the underlining issue of the government's habit of imposing legislation that undermines Human Rights and democratic liberties for the sake of security. The reasons for this failing are understandable and give an insight into the limitations of authority ascribed to the courts within the UK's constitutional hierarchy. The courts cannot directly challenge the executive's considerations on security threats as they are "bound by prevailing norms to exercise a degree of restraint with regard to the will of Parliament". Lord Bingham clearly states,

"The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions."

This leads to three main issues relating to the problem of the court's constitutional role and how that affects their ability to deal with these types of situations. To solve complex cases in which the line between political and legal are blurred, the courts have to rely on the most effective legal devices already approved by the executive and Parliament. While this does not address the fundamental problem of obstructive legislation, it is the best that the role of the courts will allow in solving this particular issue without overstepping their authority.

This leads to another consequence of the executive's supremacy in that these challenges, more appropriately debated on a wide scope among policy makers on the integrity and desirability of prospective measures, have fallen to the judiciary as retrospective challenges; that is challenges brought through the courts once the legislation is enacted. The latter challenges are far narrower than the former and rely on the claims of "affected individuals and fall within specific human rights breaches of the European Convention." This highlights limitations in that these matters must be dealt with through specific situations on a case-by-case basis; gradual and sporadic changes occur and not the sweeping reform that is needed.

The third issue that the Belmarsh case demonstrates is directly related to the powers bestowed on the courts by the HRA. The HRA does not adorn the courts with the power to strike down primary legislation which is incompatible with ECHR. Instead the courts can make a declaration of incompatibility. The difficulty here is that a declaration of incompatibility does not directly render the legislation invalid, nor does it have any binding action to force the government to amend any provisions, and so its effectiveness is not guaranteed and is dependent on the Government's willingness to comply with the court's recommendations. It has led to the repeal or amendment of legislation in the past, Belmarsh is just one example of this, however the government still has ultimate legislative dominance and hence the final decision on such matters; creating an uneasy disposition of power.

The A case No 2 (Torture) followed on from its predecessor in the criticisms of part 4 of the Anti-Terrorism Act and raised the central question of whether SIAC, upon hearing an appeal against certification and its subsequent detention could receive 'foreign torture evidence'. In a unanimous decision all Seven Law Lords agreed that evidence obtained, from either a suspect or witness, through torture should be "treated by the court as unfair, inherently unreliable and a transgression of ordinary standards of humanity and decency. Such evidence was also incompatible with the principles on which the courts should administer justice. Accordingly, such evidence could not lawfully be admitted against a party to a proceeding in a UK court regardless of who authorised or inflicted the torture." While this is another good example in which the courts are successful in upholding Human Rights, it also demonstrates some of the frictions between the judiciary and the executive; in this instance relating to the independent 'roles they play' according to differing morally defining principles in relation to the acceptability of torture. In particular, the second aspect of the case raised some interesting conflicts between principle and practicality.

Whilst the case established that the courts cannot receive 'foreign torture evidence', the second proposed question considered whether the Secretary of State was eligible to take into account evidence obtained through torture in assessing certification of a suspect. Lord Hoffman's stated,

"It is not the function of the courts to place limits upon the information available to the Secretary of State, particularly when he is concerned with national security. Provided that he acts lawfully, he may read whatever he likes. In his dealings with foreign governments, the type of information that he is willing to receive and the questions that he asks or refrains from asking are his own affair. As I have said, there may be cases in which he is required to act urgently and cannot afford to be too nice in judging the methods by which the information has been obtained, although I suspect that such cases are less common in practice than in seminars on moral philosophy."

This approach, while acknowledging the separate roles of the executive and the judiciary, also arguably implies a clash of these roles in that the action of actively causing the loss of one's liberty, through certification, is normally a function for a court. Therefore, it is reasonable to suggest that the Secretary of State should be bound by judicial standards as he is assessing evidence when considering depriving someone's liberty. This clash emphasises the complex and opaque nature of these types of arguments and leads us deeper into understanding why the courts face such hardships in keeping up their end of the bargain.

There is an even more fundamental question of morality in Lord Hoffman's stance. If torture is morally wrong, "inherently unreliable and a transgression of ordinary standards of humanity and decency" then how can it be justified to be acceptable in one instance and not another? The case The Equality, Human Rights Commission v The Prime Minister is an example of both the judiciary and executive's failing to address this. The case was centred on a "single question whether certain guidance" in a document published by the government "relating to torture and cruel, inhuman and degrading treatment was expressed in terms which were wider than the law would permit" causing specifically "potential criminal liability of UK officers [working in foreign security services] as secondary parties to torture or CIDT inflicted by foreign liaison services." The heart of the argument put forward by the Commission justifying the inadequacy of the Guidance was focused on the failure to make the distinction between 'real risk' and 'serious risk' in judging the likeness of a detainee, suspect or witness, being tortured.

This ground was ultimately dismissed on the basis that "there is no material difference between a 'real risk' and a 'serious risk' of torture or CIDT taking place" and "the context is that the document is intended to give practical guidance to intelligence officers on the ground. It is not a treatise on English criminal law. What matters is how the document would be read and applied by individual intelligence officers, not how it would fare at the Law Commission or in a University Graduate Law School." This is true on a practical level in that it is unlikely that people on the ground will be taking into account academic legal jargon or "dialectic lawyer speak" when they are forced to act quickly and make a judgement on a sensitive situation. Even so, given the delicacy of these situations, is it not then wiser to err on the side of caution and "get it right"; not for the sake of amending the possibly of an unfair criminal liability but in order to ensure that public officials resolve situations efficiently with minimal risk. Furthermore, the Guidance concedes that "while the UK is at the forefront of efforts to try to tackle unacceptable treatment of detainees we recognise ... that it is unrealistic to expect that prisons in these [foreign] countries will be built to the standards we expect in this country." While this is also true on a practical level, it is a conflict of principles. How can we retain our moral superiority in regards to our view of torture being unacceptable and then consort with other countries that force us into situations where torture is then acceptable?

These cases clearly demonstrate a separation of ideologies brought about by increasing fear of terrorism and extremist groups between the judiciary and the executive. Whereas, it is reasonable to say, the judiciary continue to uphold the traditional principles of individual liberty, equality, justice and Human Rights, the executive feel it prudent to sacrifice these endeavours for the sake of expediency and the supremacy of security in light of supposed threats to the nation. In the UK Government's recent Green Paper entitled 'Justice and Security it stated; "The first duty of government is to safeguard our national security" , implying that our liberties are dependent on this security; therefore justifying ever increasing security measures. However, the cases discussed clearly show that liberty is not dependant on security, but the two concepts are in fact at conflict with each other. If the executive continues to impose obstructive legislation that takes us further away from the fundamental democratic ideals society is based on, regardless of the justification or temporary nature of these transgressions, we become more akin to an Authoritarian State.

To return to the original question of whether the courts upheld their duty within the ECHR to treat people with dignity and respect in regards to detainees. There are two limbs to the this duty; (1) the most obvious of ensuring that our liberties are protected according to the ECHR and (2) to maintain the principles of justice, accountability, equality, individual liberty that we have come to expect, rely on and even take for granted in our liberal democratic society.

I would consider it reasonable to suggest that the courts fulfil this duty to the best of their ability within the limitations that their role affords them. A distinction must be made between upholding their duty and being successful in upholding their duty; for it appears that regardless of the great controversy and criticism surrounding such laws related to National security and Terrorism, "ultimately, the government has been able to enforce its will and pass its legislation." As suggested by Liberty's response to the 'Justice and Security' Green Paper the justification of security will have an adverse effect.

"If the central proposals in this paper are passed, the Government will (1) be handed a permanent advantage to control litigation to which it is a party and (2) effectively oust the jurisdiction of the courts to hear applications seeking to uncover wrongdoing by other States that may also uncover unlawful actions by the UK authorities."

The full extent of the sinister nature of these occurrences is yet to be presented to us.

Appendix One Part 4 of the Anti-terrorism, Crime and Security Act 2001 allowed for the Home Secretary to indefinitely detain individuals certified as suspected terrorists through evidence attained primarily from secret intelligence and security assessments gauging an individual's involvement in an organisation, which could be led by incomplete, subjective facets of rumour and pure speculation; material that would certainly not be admissible in a traditional criminal court. Under section 21 (a) and (b) of the Anti-Terrorism Act allowed for the Home Secretary to issue a certification of they were under the reasonable belief and suspicion that an individual within the UK poses a threat to National Security and that they are a terrorist (no further requirements needed). Another key element of this was that indefinite detention only applied to non-British Nationals subject to immigration control. Those who could not be deported back to their own country, either because the country wouldn't take them or because there was a foreseeable risk that the individual would be tortured on his arrival to that country, were indefinitely detained. The only method of challenging a certification was to appeal to SIAC, who were forced to cancel the certificate if they could not find any reasonable grounds to suspect the individual to be involved in terrorist activity or if they deemed that for some reason the certificate should never have been established (See ATCSA s 25 and 25 [2a]). It is clear that this legislation is structured in mind of a hard-hitting and strict policy towards terrorists to ensure security and the protection of society; however it is also evident that to arbitrarily detain individuals without trial is a policy that is grossly unfair, penalising and heretical to traditional concepts of justice.