Transcription

1 !1 Neil Egan-Ronayne 2013 Constitutional Law The purpose of this briefing is to help illustrate the history behind human rights law, including the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA 1998). Following that is an overview of the principle rights protected, including public body obligations designed to provide fair treatment for individuals, and to support their right to challenge legislation under the HRA There will also be detailed coverage of the on-going issue surrounding the prevention of deportation for terrorist suspects who may be at risk of torture if returned to their country of origin. This briefing will then finish with a summary to underline the fundamental reasons those human rights are a part of United Kingdom law today. The Human Rights Act 1998, was brought into effect as a consequence of the ECHR, which was formulated in 1950 by the Council of Europe, and based upon the Universal Declaration of Human Rights as used by the United Nations. Ten countries initially rallied to sign the treaty, including Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom, with thirty-seven other states periodically joining since its inception. The convention first took effect in September 1953, to prevent future human atrocities like those witnessed during World War II, and to ensure freedoms and liberties without subjugation. Aspects of Sir Winston Churchill s Parliamentary speech echo this sentiment 1: These principles, which govern us, are defined in the Constitution of the United Nations where Europe should be a vigorous and leading element Therefore we shall not only find the road to rebirth and prosperity in Europe, but at the same time, protect ourselves of any risk of being overrun, crushed by whatever form of totalitarian tyranny, be it the detested domination of the Nazis whom we have swept away or any other kind of despotism. Furthermore, we must take all of the necessary measures and precautions in order to be certain that we will have the power and that we will have the time to achieve that transformation of Europe. The primary directive of the ECHR is to promote protection of certain fundamental rights among the Member States of the council of Europe. Similarly, the core values of the United Kingdom constitution embraces the presumption of liberty, the imperative of representative government and finally, the rule of law; with these three elements working interdependently to serve and underpin the balance of sovereign power. Conventional expectations, select committees and judicial reviews are also key factors to the maintenance of a complex legal equilibrium, while interwoven within these are the ECHR and the HRA 1998, which allow judicial interpretation of statute, with a view to the protection of civil liberties and freedoms. Before the ECHR became an intrinsic part of domestic law, Ministers often abused discretionary powers, with judicial credibility held in a dim view, framed by mistrust of structured rule. This amounted to a political constitution largely beyond reproach, relying instead upon collective norms for legal enforcement. This prolonged neglect subsequently gave rise to an increase in administrative law and the birth of judicial review. A recent example of this is R (Abbassi) v Secretary of State for Foreign & Commonwealth Affairs 2, an international case in which United Kingdom judges used their right to assert judicial authority surrounding the application of discretion when a British citizen captured by American forces, was detained indefinitely in Guantanamo Bay, Cuba. In this instance, the Secretary of State for Foreign and Commonwealth Affairs was requested to investigate why the prisoner had been denied their fundamental human rights, despite the matter being of international relevance, and with a risk of diminished Anglo- American relations. Courts began to adopt a more concrete conception of the rule of law in the 1980s, allowing for values such as freedom of expression equality and freedom from destitution. Presumptions followed that common law infringement upon these kinds of values would deem statute action unlawful, and it quickly became conventional thinking. An example of this trend development can be found in R v Secretary of State for the Home Department, ex parte Brind & Ors 3, a media related case which held that because the ECHR was not part of English common law, the Secretary of State s decision to restrict TV and radio interviews with Northern Ireland extremist groups was justified. This was despite encroaching on the right to freedom of expression, and a dismissed appeal by journalists defending that right. 1 Council of Europe, Voices of Europe: A Selection of Speeches Delivered Before the Parliamentary Assembly of the Council of Europe (Council of Europe, 1997) 2 [2002] EWCA Civ [1991] AC 696.

2 !2 Neil Egan-Ronayne 2013 It wasn t until 1998 that British constitution accepted that using convention as a means of entrusting civil liberties and freedoms to its citizens could no longer be relied upon, particularly within political channels or executive abuses, and so The Human Rights Act was given Royal Assent on 9 th November 1998, coming into full effect on 2 nd October From that point on, all rights and freedoms previously safeguarded by the ECHR were now directly enforceable throughout the domestic courts, in so much that compatibility with primary legislation and the sovereignty of Parliament was agreed. This upheaval of institutional law in favour of a more encompassing embracement of human rights, has been historically significant, in that for the first time, judicial authority has been granted greater scope for case interpretation, particularly on high level matters, which were previously determined through ministerial debate. A change that has been argued, albeit in absence of any recognition that judicial influence has proven to be the rationale of a constitution inclined to overlook common law in lieu of political fervour. In relation to the historic merger of individual prerogatives, the main principles of ECHR protected within the HRA 1998 are as follows: (Convention) Art.2 Right to Life Art.3 Prohibition of Torture Art.4 Prohibition of Slavery and Forced Torture Art.5 Right to Liberty and Security Art.6 Right to a Fair Trial Art.7 No Punishment Without Law Art.8 Right to Respect for Private and Family Life Art.9 Freedom of Thought, Conscience and Religion Art.10 Freedom of Expression Art.11 Freedom of Assembly and Association Art.12 Right to Marry Art.14 Prohibition of Discrimination Art. 16 Restrictions on Political Activity of Aliens Art.17 Prohibition of Abuse of Rights Art. 18 Limitation on use of Restrictions on Rights (First Protocol) Art.1 Protection of Property Art.2 Right to Education Art.3 Right to Free Elections (13 th Protocol) Art.1 Abolition of The Death Penalty (As read with Art.16 to Art.18 of the Convention) Human Rights Act 1998 It is important to note that any domestic legislation that is deemed incompatible with existing European Convention rights can be quashed in matters of secondary legislation, or declared incompatible in matters of primary legislation (statutes), however government can amend statutes to seek compatibility with convention as and when necessary. In terms of executive duties and restrictions, the HRA 1998 makes provision for public objection, and the power to challenge any secondary legislation that may affect upon the lives of the populace. These provisions are addressed in Section 6, 7, 8, and 9 as shown below: Section. 6 Acts of public authorities This section explains that it is unlawful for a public authority to act in a way that is incompatible with a human right, and deals with instances where a public authority does not act through incompatibility, unless faced with an issue that renders them unable to act differently. This would include courts, tribunals and public servants, with the exception of parliamentary members and Parliament. An example of this can be 4 4 [1998] c.42 sch 1 (a) (b) (c)

3 !3 Neil Egan-Ronayne 2013 found in YL v Birmingham City Council 5 where the owner of a private care home who had received a referred patient through a local authority, and who s care was predominantly funded with local authority money, proposed to move the patient to another home after allegations of misconduct surrounding their visiting family members. The judges decision showed that this proposal invoked s.6 (3)(b) of the HRA 1998 and art.8 of the ECHR, and that despite being privately owned, the home was considered a public body in as much as it was providing care for a local authority, and therefore expected to respect Convention rights in all areas, specifically the provision of care. Section.7 Proceedings This provision refers to instances where a member of the public alleges a breach of public authority duty under s.6 of the HRA 1998, and subsequently chooses to issue proceedings, or draws their attention to existing Convention rights, while showing the pursuant to be a victim of an unlawful act. This process would also apply in instances where judicial review is required. An example of this provision can be found in D v Commissioner of Police of the Metropolis 6, where during a civil procedure, the appellant claimed a violation of art.3 of ECHR through the masters refusal to exercise his discretion under the HRA 1998, by allowing her claim to be considered despite being almost two years past the acceptable appeal date. On this occasion, the appeal received greater consideration because the matter related to a previous improperly investigated rape claim. Section. 8 Judicial remedies In matters relating to the appropriate dispensation of justice, s.8 provides that when any act or proposed act of public authority is considered unlawful, the relevant court may grant appropriate redress and in civil matters, compensation awards as outlined in art.41 of ECHR. An illustration of this kind of scenario is R (on the application of Faulkner) v Secretary of State for Justice 7 when the Secretary of State procrastinated the provision of information required to establish the right to continually detain a prisoner after the expiration date of his sentence tariff. The decision was later construed as a violation of art.5 (4) of the ECHR. Section.9 Judicial Acts This element goes further to show that proceedings under s.7 (1) in respect of a judicial act, may only be brought through exercising a right of appeal, an application for judicial review, or in such other forum as may be subject to rules. A good example of this can be found in ID & ORS v Home Office, 8 when a family of asylum seekers appealed against a judgment against them following alleged infringement of art.2, 3 and 5 of the ECHR. This occurred when an immigration officer had refused asylum, unreasonably detained them in three detention centres, and neglected to safeguard them while waiting to determine their immigration status. In the face of public appeal regards incorrect application elements of the HRA 1998, the relevant public bodies are empowered to respond under s.3 (Interpretation of Legislation) which translates that in so far as it is possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. However, s.3 (2)(a) stresses that the validity, continuing operation or enforcement of primary legislation and subordinate legislation are unaffected when found incompatible with Convention rights, and that if primary legislation is subsequently amended in relation to a conflict with Convention rights, the subordinate legislation remains unchanged. Furthermore, the acting public bodies can issue a declaration of incompatibility as set out in s.4 of HRA 1998, when any provision of primary legislation is incompatible with a Convention right, but only when removal of that incompatibility is not possible. This is an action of the highest order, and as such, the government is required to change the law relating to that declaration. Again as above, the declaration does not prevent the continuing operation or enforcement of that legislation until amendment or removal. With regard to constituent complaints surrounding the failure to deport alleged terrorists suspects when concerns are raised about subjection to torture upon return to their country of origin, it is important to provide some examples of cases and articles when observance of the HRA 1998 must prevail to the need for immediate public gratification, as quoted in art.3 No one shall be subjected to torture or inhuman or [2007] UKHL 27. [2012] EWHC 309 QB. [2009] EWHC 1507 (Admin); [2010] 2 Prison L.R [2005] EWCA Civ 38.

4 !4 Neil Egan-Ronayne 2013 degrading punishment or treatment. The first of these, and an example of precedence in the making, was Chahal v United Kingdom, 9 where in 1974 an Indian citizen with Sikh resistance links was given indefinite leave to remain in the United Kingdom after entering illegally. Ten years later, after returning to India, the police detained and tortured him, before his return to the United Kingdom and becoming a leading figure among Sikhs. In 1990, the Secretary of State requested his deportation, and following a failed appeal for judicial review, the defendant took his case to the European Court of Human Rights. His appeal was held on grounds that any decision to return an individual to a place where threat of torture was imminent would be considered a direct violation of art.3 of the ECHR. This was despite written assurances from the Indian government that if Mr Karamjit Singh Chahal were to be deported to India, he would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities. 10 Another case which addresses the deportation of terrorist suspects facing a breach of art. 3 and art. 5(1) of the convention was A and Others v United Kingdom, 11 which involved Parliament passing a derogation act in order to allow the indefinite detention of eleven resident foreign nationals suspected of terrorist links. This departure from previous statute conventions was on a firm belief that the United Kingdom was in a prolonged state of emergency and under genuine threat of attack from within its borders. The fallout of the 9/11 airline attacks and knowledge that this country is now actively campaigning a war on terror alongside the United States, serves as a catalyst for what could be perceived as an act of transgression towards the ECHR. Some might also argue that failure to detain possible suspects would imperil the same freedoms and civil liberties this country is accustomed to. RB (Algeria) (FC) & Anor v Secretary of State for the Home Department; OO (Jordan) v Secretary of State for the Home Department 12 considers the appeals of three foreign nationals arrested on charges of offences under the Terrorism Act 2001, 13 and referred for deportation on the grounds of national security. Two Algerians and a third Jordanian claimed that sending them home would deem a violation of art.3 of the ECHR, and in the case of the third, an impending retrial of previous terrorist activities would further violate art.6, based on the possible use of tortured witnesses in a Jordanian military court. Evidence gathered by the Special Immigration Appeals Commission (SIAC) upheld the decision that there was insufficient deficiency of information to suggest he would not receive a fair trial, despite the fact that the use of closed material in relation to deciding safety on return does not breach art.6, as applicants will be aware of their case, and that use of closed material is acceptable where disclosing it would be contrary. 14 A similar analysis is in Taking rights seriously in expulsion cases: a case study 15 where both articles elaborate on the morality of indefinite detention on a premise of suspicion. A similar and more recent case in the European Court of Human Rights, Othman (Abu Qatada) v the United Kingdom, 16 observes that despite diplomatic assurances by the Jordanian government, suspected al-qaeda affiliate Omar Othman (Abu Qatada), currently detained at Long Lartin prison, is still at risk of degrading treatment and an unfair trial if he is deported to face a retrial for alleged terrorist crimes in his homeland. 17 On this occasion, the Court unanimously held that despite these protestations, art.3 and 5 of the ECHR would not be considered in breach, but that art.6 was when considering the risk that evidence obtained through torture could affect his right to a fair trial [1996] 23 EHRR 413. ibid para.3.7 [2003] ECHR 3455/05. [2009] UK HL 10 [2009] 2 WLR 512. Anti-terrorism, Crime and Security Act 2001 c.24 CHRLD Cruel, Inhuman or degrading treatment: deportation [2011] WIN Joe Middleton Taking rights seriously in expulsion cases: a case study EHRLR [2013] [2011] ECHR Chamber Judgments, Chamber Judgment Othman (Abu Qatada) v the United Kingdom (Strasbourg, 17 Jan 2012) < accessed 12 November 2013.

5 !5 Neil Egan-Ronayne 2013 When summarising the importance of the merger between the ECHR and the HRA 1998, it is important to consider that in 2011, thirty-three percent of almost twenty-thousand asylum seeker applications were initially accepted. Although this figure is nearly sixty thousand less than in 2002, 18 the need for a basic protection of human rights has never been stronger, and as Dr. Mohammed Sekkoun, Chairman of the Algerian Refugee Council previously said in 2003, in the last two years, about 90 to 100 individuals known to have committed terrorist acts in Algeria had come to Britain seeking asylum. 19 These statistic examples have no doubt led to a sense of unease within an endemic population, and with growing tensions between legislative branches amidst a turbulent war on terror campaign, it is paramount that the United Kingdom is seen to be consistent in its application of civil freedoms, particularly as The UN Human Rights Committee, the Special Rapporteur, and the UN Committee Against Torture, have repeatedly asked the UK government to review the memorandum of understanding procedure 20 in relation to unwarranted or unnecessary deportation. The indefinite detention of suspected foreign terrorists must also be righteous, provided the treatment of those detainees is at a level that maintains a humane precedent and avoids succumbing to the will of public outcry. Ultimately, it is for those reasons that Parliament should continue to unerringly strive to uphold the rule of law and the protection of human rights, and advocate its application in a manner that breeds trust in sovereign wisdom, while acknowledging the vitality for individual empowerment across all races, religions and creeds. 18 Dr. Scott Blinder, Migration to the UK: Asylum, < Briefing%20-%20Migration%20to%20the%20UK%20-%20Asylum.pdf> accessed 21 November Sandra Laville, 100 known Algerian terrorists come to this country as asylum seekers The Telegraph (London, 17 January 2003) 20 Equality and Human Rights Commission, Article 3: Freedom from torture and inhumane and degrading treatment or punishment < > accessed 20 November 2013

6 !6 Neil Egan-Ronayne 2013 Bibliography Books Carroll A, Constitutional and Administrative Law (7 th edn, Pearson 2013) De Than C, Human rights law in the UK (Sweet & Maxwell 2001) Finch E, Fafinski S, Legal Skills (4 th edn, OUP 2013) Doswald-Beck L, Human Rights in times of conflict and terrorism (OUP 2011) McGhee D, The End of Multiculturalism: Terrorism, Integration and Human Rights (McGraw-Hill 2008) Pradhan RK, Terrorism, Rule of Law and Human Rights (Global Media 2010) Cases A and Others v United Kingdom [2009] ECHR 3455/05 Chahal v United Kingdom [1996] 23 EHRR 413 D v Commissioner of Police of the Metropolis [2012] EWHC 309 QB ID & ORS v Home Office [2005] EWCA Civ 38 OO (Jordan) v Secretary of State for the Home Department [2008] 3 WLR 798 Othman (Abu Qatada) v the United Kingdom [2011] ECHR 022 R (Abbassi) v Secretary of State for Foreign & Commonwealth Affairs [2002] EWCA Civ 1598 R (on the application of Faulkner) v Secretary of State for Justice [2009] EWHC 1507 R v Secretary of State for the Home Department, ex parte Brind & Ors [1991] AC 696 RB (Algeria) v Secretary of State for the Home Department [2009] UK HL 10 [2009] 2 WLR 512 YL v Birmingham City Council [2007] UKHL 27 Electronic Articles Chamber Judgments, Chamber Judgment Othman (Abu Qatada) v the United Kingdom (Strasbourg, 17 Jan 2012) < accessed 12 November 2013 Equality and Human Rights Commission, Article 3: Freedom from torture and inhumane and degrading treatment or punishment > accessed 20 November 2013 Blinder Dr.S, Migration to the UK: Asylum, Briefing%20-%20Migration%20to%20the%20UK%20-%20Asylum.pdf accessed 21 November 2013 Journal Articles CHRLD Cruel, Inhuman or degrading treatment: deportation [2011] WIN 116 Middleton J, Taking rights seriously in expulsion cases: a case study EHRLR [2013] Legislation Anti-terrorism, Crime and Security Act 2001 c.24 European Convention on Human Rights 1950 Human Rights Act 1998 c.42 s1 (a)(b)(c) Newspaper Articles Laville S, 100 known Algerian terrorists come to this country as asylum seekers The Telegraph (London, 17 January 2003)