Using International Law in Northern Ireland Courts - 10 Key Points

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1 Using International Law in Northern Ireland Courts - 10 Key Points Gordon Anthony * INTRODUCTION This paper provides an overview of the role that international law can play in proceedings in the Northern Ireland courts. Its purpose is to identify the parameters within which references to international law can be made and the type of arguments that the courts may and may not - accept. 1 Although it is axiomatic that UK domestic law is distinct from international law, at least when it is in the shape of unincorporated Treaty law, it is equally well-known that international law can influence domestic proceedings in ways that are both direct and indirect in form. This paper thus notes 10 key points about the influence that international law can have in the Northern Ireland courts and, indeed, the courts of the UK more generally. It also considers some of the leading case law on the reception of international law and, in particular, those decisions that have exhibited an openness to international standards. THE KEY POINTS 1. The UK has a dualist constitutional tradition Historically speaking, this is the first point that should be made about the relationship between UK law and international law, as constitutional dualism provides the framework within which (most) domestic and international legal standards interact. Dualism, for these purposes, entails that domestic law and international law are distinct from one another and that each body of law enjoys primacy within its respective sphere of influence. Although this is a constitutional model that has been much criticised in recent years, 2 it continues to play a central role within UK constitutionalism. This is something that should be borne in mind when developing litigation strategies as strong dualism can greatly limit the scope for invoking international standards while weak dualism can have a less restrictive effect. * Professor of Public Law, Queen s University Belfast; Barrister-at-Law 1 For more detailed commentary see The Hon Mr Justice Lloyd Jones, Is International Law a Part of the Law of England? (2011) 16 Judicial Review 192; S Fatima, Using International Law in Domestic Courts (Hart Publishing, Oxford, 2005); and R Singh, The Use of International Law in the Domestic Courts of the United Kingdom (2005) 56 Northern Ireland Legal Quarterly For a highly critical discussion of dualism see M Hunt, Using Human Rights Law in English Courts (Hart Publishing, Oxford 1997), chs

2 2. Unincorporated Treaties cannot be invoked directly in domestic proceedings This is one of the most obvious manifestations of the above point and it corresponds with a strong dualist denial that the provisions of unincorporated international Treaties can play any role in domestic proceedings. The rule is associated with the doctrine of the sovereignty of the Westminster Parliament and the related understanding that international law can have effect in domestic law only if, and insofar as, Parliament authorises that effect. 3 Prior to 2010, this ensured that Executive decisions to sign and ratify Treaties on the basis of the Royal prerogative could not change domestic law and that the matter remained one for Parliament. 4 The position is now slightly different in that proposals to ratify Treaties are subject to prior Parliamentary approval in accordance with the terms of the Constitutional Reform and Governance Act The leading example of strong dualism remains the Brind ruling of the House of Lords. 6 Several journalists here challenged the Home Secretary s decision to ban media organisations from broadcasting directly statements made by representatives of named paramilitary groups and political parties in Northern Ireland. In challenging the decision, the applicants sought to rely upon, among other things, Article 10 of the (then unincorporated) ECHR and the proportionality principle that informs much of the case law on Article 10 (as well as other provisions of the ECHR). However, the House of Lords refused to consider directly the elements of Article 10 ECHR, and it also dismissed the argument that the proportionality principle could provide a basis for challenging the manner in which the Home Secretary had exercised his discretion. 7 As Lord Bridge explained, Parliament had not chosen to give domestic effect to the ECHR and the review of the Home Secretary s decision with reference to it would amount to a usurpation of the legislative function. 8 3 And note that international relations are, for the most part, an excepted matter under para 3 of Sch 2 to the Northern Ireland Act See JH Rayner v Department of Trade and Industry [1990] AC 418, 550, Lord Oliver: [T]he royal prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights on individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of (UK) law unless and until it has been incorporated into the law by legislation. 5 Viz, Part II of the Act. Although note that this essentially places the Ponsonby rule on a statutory footing, that is the rule whereby certain Treaties were laid before Parliament for 21 days prior to the final stages of ratification (see HC Debs, 5 th Series, Vol 171, 1 April 1924, col 2001). 6 R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696. See too, e.g., R (Hurst) v London Northern District Coroner [2007] 2 AC Although on the principle s status in UK law under the Human Rights Act 1998 see R v Secretary of State for the Home Department, ex p Daly [2001] 2 AC 532 and Re E (A Child) [2009] 1 AC [1991] 1 AC 696, 748, Lord Bridge. 2

3 3. Unincorporated Treaties can play an indirect role in domestic proceedings The strong dualism of Brind is, however, to be contrasted with the weak dualism that was noted above and which allows unincorporated international treaties to have an indirect impact on domestic proceedings. There is a number of ways in which this impact can occur, but perhaps the best known is through an interpretive presumption about Parliament s intentions when it legislates in an area where the UK has existing obligations under an unincorporated Treaty. Here, the courts have said that, if the legislation in question is ambiguous, it should, if possible, be given an interpretation that is consistent with the UK s international obligations. 9 This is because the courts presume that Parliament would not wish to legislate contrary to those obligations and that, if it did wish to do so, it could use express words to achieve that outcome. 10 The result is that unincorporated Treaty provisions can influence domestic proceedings through a rule of statutory interpretation that pursues fidelity to the UK s international obligations. Another way in which Treaties can have an effect is when the courts consider their provisions by analogy when resolving points of law about Treaties that have been incorporated in domestic law. Case law under the Human Rights Act 1998 provides one such example, as there have been a number of court decisions that have made reference to unincorporated Treaty provisions when considering the content of rights under the ECHR. For instance, in the seminal Belmarsh detainees case Lord Bingham considered a number of other Treaty provisions when assessing whether the power to detain only non- British nationals was discriminatory within the meaning of Article 14 ECHR 11 (reference was made to, among others provisions, Articles 4 and 26 of the International Covenant on Civil and Political Rights). While the provisions in question did not bind the House of Lords - a point that Lord Bingham noted 12 - they clearly helped to shape its finding that the power in question was discriminatory. This would suggest that the courts can be receptive to relevant and informed submissions about unincorporated provisions whether they are made by parties to proceedings or by third party/public interest interveners (Liberty and Amnesty International intervened in the Belmarsh case) See Garland v British Rail Engineering Ltd [1983] 2 AC 751, 771, Lord Diplock. And for more recent statements see, e.g., R v Lyons [2003] 1 AC 976, 992, para 27, Lord Hoffmann; and Assange v The Swedish Prosecution Authority [2012] UKSC 22, para 122, Lord Dyson. 10 This is a line of reasoning that is now particularly influential in the context of EU membership: see Thoburn v Sunderland CC [2003] QB A v Home Secretary [2005] 2 AC 68. The power of detention was contained in ss of the Anti-terrorism, Crime and Security Act [2005] 2 AC 68, 121, para On the role of interveners see famously - and controversially - Re E (A Child) [2009] 1 AC

4 4. The ratification of an international Treaty does not create a legitimate expectation that domestic decisions will be taken in the light of the Treaty This is another well-known point from the case law and, as with Brind, it corresponds with strong dualism. At its most straightforward, the legal position here is that ratification of a Treaty cannot give rise to an enforceable legitimate expectation that (most obviously) Ministers will exercise their discretion in accordance with the relevant Treaty obligations. Although there is some Australian authority that favours use of the legitimate expectation doctrine in this way, 14 UK law has firmly rejected the argument that the doctrine can found claims based directly upon unincorporated Treaties. In doing so, the courts have thus noted once more the primacy of Parliament s role in relation to international law and the need for the courts to observe the limits of their constitutional role. Two cases can be used to illustrate the approach of the courts. The first is Re T's Application, 15 which was an application for judicial review in which a US citizen who had given birth to a child while living in Northern Ireland challenged the Home Secretary s decision to deport her pursuant section 3(5) of the Immigration Act One of the applicant s arguments was that she had a legitimate expectation that the Home Secretary would take the deportation decision in accordance with the UN Convention on the Rights of the Child However, while Coghlin J (as he then was) accepted that the facts of the case gave the applicant a legitimate expectation that the Convention would be considered in relation to her child, he was quite satisfied that the applicant could not establish a legitimate expectation that the provisions of the Convention would be applied directly to her. As the judge expressed it: To permit her to do so would be to incorporate the provisions of the Convention by the back door. 16 The second case is R v DPP, ex p Kebeline. 17 This case concerned the question whether the applicants could have a legitimate expectation that prosecution decisions would be taken in accordance with Article 6 ECHR in the period of time between the enactment of the Human Rights Act 1998 and the Act s entry into force by order of the Secretary of State (in the event the greater part of the Act was brought into force on 2 October ). Holding that the applicants could not have a legitimate expectation, the House of Lords noted the fact that the Act had not come into force on the date of its enactment and that Ministerial orders were key to the scheme. Their Lordships on that basis held that it would be contrary to Parliament s intentions to recognise an enforceable legitimate expectation as that would be to give immediate effect to an Act that had not been intended to have that effect. 14 Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR [2001] NI [2001] NI 516, [2000] 2 AC SI 2000/

5 5. Ministers have the power - but not a duty - to consider unincorporated standards when making decisions The above rule against legitimate expectations may alternatively be said to reduce to the proposition that Ministers do not have any domestic legal duty to observe unincorporated Treaty provisions when making domestic law decisions. However, that truism can be contrasted with the important fact that Ministers still have a power to consider international standards when making domestic decisions. 19 Moreover, where a Minister does so, this can lead to a decision being challenged for the reason that the Minister has misunderstood, or acted in breach of, an international obligation. For instance, in Re McCallion s Application 20 the widow of a man who was killed in a fight challenged a Ministerial refusal to make an award of criminal injuries compensation because of the deceased s earlier convictions for terrorist offences. The correspondence that preceded the case confirmed that the Minister had considered the UN Convention on the Rights of the Child 1989 when making his decision and that he was of the view that the refusal did not breach the prohibition on discrimination contained in Article 2(2) of the Convention. However, in the corresponding proceedings the judge accepted that this raised the question whether the decision adhered to the international standard and held, on the facts, that there was an arguable case that it had been breached. The refusal decision was accordingly quashed. This may appear as an important development in the law and dicta in other cases, again concerned with the 1989 Convention, have suggested that provisions of the Convention are requirements which should properly be taken into account by the state and its emanations in determining upon their actions. 21 That said, it would be very surprising if such dicta were intended to displace the above point about the non-existence of a legal duty, and it is also to be noted that the domestic courts are, in any event, reluctant to engage in disputes about the meaning of unincorporated provisions. 22 The McCallion case discussed above can again be used to illustrate the point, as the meaning of Article 2(2) subsequently came before the courts in a challenge to a further decision to refuse an award of compensation. Noting that there were differing views about the meaning of Article 2(2), the High Court and Court of Appeal were both of the view that House of Lords authority precluded them from engaging in a dispute about the meaning of the Article and whether the Secretary of State had acted consistently with it. 23 In the result, the proceedings were dismissed at the leave stage. 19 Re Adams Application [2001] NI 1, [2007] NIQB Re E (A Child) [2009] 1 AC 536, 561, para 60, Lord Carswell. 22 See, e.g., R (Corner House Research) v Director of the Serious Fraud Office [2009] 1 AC 756 and JH Rayner Ltd v Department of Trade and Industry [1990] 2 AC See [2009] NIQB 45 and [2009] NICA 55, considering, among other cases, those at n 22 above. 5

6 6. Incorporated Treaties can be enforced in Northern Ireland courts, subject to the terms of the relevant Act of Parliament Of course, the corollary of all of the above is that, where Parliament has enacted legislation to give effect to an international Treaty, the provisions of the Treaty will be directly enforceable in the domestic courts. This (self-evident) point is however subject to one very important qualification, namely that the extent of application of the Treaty will depend upon the wording of the relevant Act of Parliament (this being in addition to any point about whether the Treaty itself is intended to create enforceable rights and obligations 24 ). While Parliament may enact legislation that includes broadly worded formulas that render Treaty provisions far-reaching in their effects - an example here is the European Communities Act 1972 that gives effect to the EU Treaties, including the Charter of Fundamental Rights 25 - other legislative schemes may be more finely worded and place limitations on the reach of international norms. Should there be any dispute about the meaning of this latter type of scheme, constitutional orthodoxy could be expected to lead the courts first to the intentions of Parliament in enacting the scheme rather than to the content of the Treaty that it incorporates. An example of the latter type of scheme is provided by section 22 of the Human Rights Act In broad terms, that section states that the Act does not have retrospective effect and that the ECHR cannot be used to challenge decisions and so on that were taken before 2 October 2000 (the date on which the majority of the Act came into force). While case law on the section has been both complex and (occasionally) controversial, the courts have consistently held that Parliament has intended to limit the ECHR s temporal reach in domestic law in line with the terms of section At its height, such reasoning has corresponded with an understanding that the ECHR and domestic law remain as distinct entities even with the enactment of the Human Rights Act Customary international law is part of the common law, albeit that the common law is subject to statute Beyond Treaty law, the other most prominent source of international law is customary international law. Customary norms are those that have attained the position of general 24 R (Adan) v Home Secretary [2001] 2 AC 477, 516, Lord Steyn. 25 On the reach of the Charter see Case C-411/10, NS v Home Secretary [2012] 2 CMLR 9. Note that the terms of the ECA 1972 and its related case law are now to be read alongside the European Union Act See, e.g., Wilson v First County Trust (No 2) [2004] 1 AC 816 and Wainwright v Home Office [2003] 4 All ER 969. But note that section 22 provides, exceptionally, for retrospective effect where proceedings have been brought by or at the instigation of a public authority, on which exception see R v Lambert [2002] AC 545 and R v Kansal [2002] 1 All ER See, e.g., Lord Nicholl s judgment in Re McKerr [2004] 1 WLR 807, 815, para 25. But note that the House of Lords ruling in McKerr, insofar as related to the nature of the State s obligations under Article 2 ECHR, was distinguished by the Supreme Court in Re McCaughey [2011] 2 WLR 1279, as read with Šilih v Slovenia (2009) 49 EHRR

7 acceptance by civilised nations as a rule of international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decision. 28 It has long been recognised that such norms can form part of the common law and that this allows the courts to have regard to them even in the absence of enabling legislation. 29 For instance, in R (European Roma Rights Centre) v Immigration Officer at Prague Airport, 30 the House of Lords held that arrangements that had been made for preclearance, extra-territorial immigration control were contrary both to the Race Relations Act 1976 and customary international law on non-discrimination. The claimants in the case had argued that Roma applicants were treated less favourably than non-roma applicants when seeking clearance to enter the UK and, in accepting that submission, the Lords noted that discrimination was universally proscribed. In an approach that was similar to that of Lord Bingham in the Belmarsh case, considered at point 3 above, Baroness Hale thus referred to a range of international instruments that evidenced non-discrimination s place as a shared value within the international legal order. Use of customary international law is, however, subject to rules of precedent and to the superior force of statute, and this can inevitably limit its reach. The leading case on the point is perhaps the (in)famous Pinochet saga in which the central issue was whether the former President of Chile could be extradited to Spain to face charges related to his alleged authorisation of acts of torture and murder (including against Spanish citizens) during his period in power. 31 Although the House of Lords held that heads of state could not claim immunity from prosecution in respect of torture because torture is a crime against humanity that has a peremptory status in customary international law (immunity from prosecution is likewise a customary norm), a majority also held that the Extradition Act 1989 prevented extradition for crimes that were not crimes in both the UK and the requesting country at the time they were committed (the so-called double criminality rule ). As torture committed outside the UK had become a crime for the purposes of the Act only after the UK had enacted the Criminal Justice Act 1988 and Chile and Spain had ratified the International Convention against Torture 1984, the former President could be extradited to face charges solely in respect of those acts committed after the date on which the double criminality rule was satisfied (which was held to be 8 December 1988). The potentially wider liability of the former President under customary international law was thereby rendered secondary to statute and to the related understanding that UK courts can impose criminal liability only where the legislature authorises them to do so The Christina [1938] AC 485, 497, Lord MacMillan. 29 Chung Chi Cheung v The King [1939] AC 160, 168, Lord Atkin. 30 [2005] 2 AC R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 3) [2000] 1 AC 147. For analysis of the case see D Woodhouse (ed), The Pinochet Case: A Legal and Constitutional Analysis (Hart Publishing, Oxford, 2000). 32 But see also the emphasis placed on customary international law in the opinions of Lords Millett and Phillips. And on the relationship between statute law and international standards on torture see also Jones v Ministry of the Interior of Saudi Arabia [2007] 1 AC

8 8. General principles of law are an (increasingly?) important source of law Another area of interest outside the realm of Treaty law is that of general principles of law. Although it is sometimes said that these are merely one aspect of customary international law, there has also been an increased emphasis in recent years on the place of the principles within global administrative law. 33 The corresponding literature emphasises that principles such transparency, accountability and legality now exist above the level of the State and that these play a vital role in controlling the exercise of power at the global/international level. Leading cases on the point include the Shrimp-Turtle decision of the WTO Appellate Body 34 and the ECJ s celebrated if controversial decision in Kadi v Commission and Council. 35 It is perhaps a little ambitious to suggest that the domestic courts would wish to adopt general principles of law that are said to exist primarily at the global/international level. Nevertheless, it should be remembered that the history of the proportionality principle in domestic law is one of incremental development at the interface with European law and that this may also occur with principles such as transparency. 36 Indeed, while it true that full recognition of the proportionality principle occurred only after the enactment of the Human Rights Act 1998, 37 there had been some earlier judicial statements about the common law s relationship to the principle in a number of administrative law cases. 38 It may therefore be that such statements, or certainly the communitaire reasoning that informed them, could act as a bridging point for the reception of global/international principles into domestic law. 9. International law recognises a line between law and politics Another point that is well-established in domestic and international case law is that there is a distinction to be drawn between law and politics in the international sphere. This has two dimensions, the first of which corresponds with the state immunity doctrine that takes statutory form in the State Immunity Act According to this doctrine and the Act, States are immune from the jurisdiction of the courts of the United Kingdom save to the 33 See B Kingsbury, N Krisch, R Stewart, The Emergence of Global Administrative Law (2005) 68 Law and Contemporary Problems WTO Appellate Body, United States Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, Doc No (12 Oct 1998). 35 Joined Cases C 402/05P and C-415/05P, Kadi & Al Barakaat International Foundation v Council and Commission [2008] 3 CMLR For commentary on its existing status see C Howell, Is There a General Principle Requiring Transparency about How Decisions Will be Taken? [2011] 16 Judicial Review R v Secretary of State for the Home Department, ex p Daly [2001] 2 AC E.g., R v Ministry of Agriculture, Fisheries and Food, ex p Hamble (Off-shore) Fisheries Ltd [1995] 2 All ER

9 extent that is provided for by the Act. In broad terms, this is intended to ensure that the comity of relations between States is not disturbed by the threat of legal proceedings and that the actions of state agents and officials enjoy a necessary though not absolute immunity. 39 In O Muilleoir v McDowell, 40 the High Court thus dismissed defamation proceedings that had brought against Ireland s Minister for Justice, Equality and Law Reform in respect of comments that the Minister made about the Northern Bank robbery. The plaintiffs in the case had claimed damages and an injunction, but the defendant argued that his comments fell within the ambit of State immunity. The Court agreed and granted the order sought by the defendant. The second dimension concerns the courts more general reluctance to become involved in questions that are essentially political and which are considered non-justiciable. 41 A well-known example here is R (CND) v The Prime Minister, 42 which was brought against the backdrop of the (then) widely anticipated invasion of Iraq by US led-forces. Relying on the jus cogens norm of customary international law that prohibits the unlawful use of force in international relations, the claimants sought an advisory declaration that UN Security Council Resolution 1441 did not authorise States to take military action in Iraq (the term jus cogens denotes those peremptory norms of international law such as the rule on torture in Pinochet that are fundamental and do not permit of derogation by any State). In dismissing the claim, the Administrative Court first rejected the argument that it had any jurisdiction to declare on the meaning of an international instrument (Resolution 1441) that had not been incorporated into domestic law. But more significant was the finding that it would not in any event have wished to embark upon the determination of (the) issue. 43 For the Administrative Court the points raised were non-justiciable, as they went to the matters of international relations, national security and defence that the courts regard as ill suited to the judicial process. Self-restraint was considered both appropriate and necessary The experience of other national legal orders has persuasive force This final point concerns comparative law and the experience that other national legal orders have had when absorbing international law. In short, it is sometimes said that the UK is a part of the common law legal tradition and that UK courts may be able to borrow 39 For judicial consideration of the limits to the immunity and its rationale see Holland v Lampen-Wolfe [2001] 1 WLR See also Jones v Ministry of the Interior of Saudi Arabia [2007] 1 AC [2007] NIQB Buttes Gas and Oil Co v Hammer [1982] AC 888, 932, Lord Wilberforce. 42 [2002] EWHC [2002] EWHC 2777, para See also, and more recently, R (Al Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin). 9

10 from the case law of other common law jurisdictions. 45 This is certainly something that has been seen in some recent decisions 46 and, while it is true that UK courts have also rejected comparative approaches (see point 4 above on legitimate expectations), arguments about other common law courts can still have considerable worth. This is true not only in terms of how those systems have received international norms but also in terms of the overlap that may exist between national constitutional values and those that inform international law. Borrowing from other common law systems may therefore allow the content of international norms to influence domestic proceedings even if they are ultimately described in terms that are slightly different. 45 C Harlow, Import, Export. The Ebb and Flow of English Public Law [2000] Public Law See, e.g., Cullen v Chief Constable of the RUC [2003] 1 WLR 1763, 1772, para 18, noting US, Canadian, and Irish case law on detained persons rights of access to lawyers. 10