Honour amongst men

The war on terrorism and the prospect of an attack on Iraq are set to challenge human rights laws. Nicholas De Marco reports on how the courts have been battling to strike a balance

Along with life and truth, civil liberties are often the first casualties of war. The historical precedents speak for themselves. During World War II the UK interned various foreign nationals, workers were prohibited from exercising the right to strike and the news was more or less controlled by the state. During the Falklands conflict, certain television programmes were banned and attempts were made to exercise government control of the news. In the last war against Iraq, UK authorities deported numerous Iraqis on dubious grounds, and the troubles in Northern Ireland led to the “temporary” Prevention of Terrorism Act, internship of Republican sympathisers, limitations on freedom of movement and a government ban on live broadcasts of interviews with members of one of the province's largest political parties.
Yet it is during periods of national crises, when governments are under intense pressure to force through draconian legislation, that human rights protection becomes most important. Recall how often proponents of incorporation of the European Convention cited the enactment of the Prevention of Terrorism Act in the wake of public outrage at the Birmingham pub bombings in the 1970s as evidence of the need for a human rights charter. But has the enactment of the Human Rights Act diminished the prospect of such abuses, or is history repeating itself regardless? So far the signals are mixed.
In many democratic nations, a raft of draconian legislation followed the 11 September attacks. The US, despite its strong constitutional rights, has detained hundreds of people indefinitely and without trial – many in the notorious Camp X-Ray in Guantanamo Bay. The European Commission made regulations that allowed the seizure of assets of any person designated by the UN to have terrorist connections. And in the UK, the Anti-Terrorism, Crime and Security Act 2001 provided for extensive new state powers, including the power to indefinitely detain without trial foreign nationals suspected of terrorist involvement. Some have described the UK act as possibly the most draconian legislation Parliament has passed in peacetime in over a century. Its powers of detention have forced the UK to seek to derogate from Article 5 of the European Convention (right to liberty and security) within two years of its incorporation. Indeed, in an article in The Daily Telegraph (17 December 2001) the Lord Chief Justice, Lord Woolf expressed concern at the passage of the act, saying: “In previous wars, things have happened which, with hindsight, are now known to have been wrong. We have to be astute to avoid that happening, so far as possible.”
The shockwaves from 11 September and the 'war on terrorism' have been felt in our courts, too. In one immigration decision relating to matters before the attacks, the House of Lords allowed the Home Secretary a wide margin of appreciation in determining what constituted a threat to national security. Lord Justice Steyn and Lord Justice Hoffmann said their findings were reinforced by the attacks in New York and Washington. In Home Secretary v Rehman [2001] Lord Hoffmann said that the attacks “underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security”. This deferential approach was followed by the Court of Appeal in an important case concerning freedom of expression and the Home Secretary's ban on the leader of the Nation of Islam Louis Farrakhan entering the UK. This was an area where it was held “appropriate to accord a particularly wide margin of discretion to the Secretary of State” .
But the story is not all one-sided. British courts have thrown out a number of recent cases involving attempts by the US to extradite terrorist suspects on insufficient grounds. Perhaps most important of all, in a case challenging the UK's derogation from Article 5 of the convention and the detention without trial of nine international terrorist suspects, the Special Immigration Appeals Commission has found the measures an unlawful breach of the Human Rights Act. The decision itself is ambiguous. On the one hand the commission found the Government was justified in derogating from Article 5 and detaining people without trial, on the other, it found a breach of Article 14 (prohibition of discrimination) in the irrational limitation of these measures to non-UK nationals alone. The decision placed the measures, and the primary legislation itself, under the kind of anxious scrutiny that would have been perhaps impossible before the Human Rights Act. Further, it was held that Section 3 of the act required the legislation be “read down”, meaning that persons not connected with Al Qaeda could not be detained under the provisions.
The judiciary is doubtless in an invidious position. It is the state's responsibility to protect the nation from terrorism. Reliance upon informants, spies and interrogation of suspects is inevitable. Deference to the state by the courts in this arena is necessarily broader than in any other. However, the duty to defer does not relieve judges from their special duty to protect constitutional rights.
The most important change brought about by the Human Rights Act is the growth in opportunities for challenging civil liberties abuses. Primary legislation authorising draconian measures can now be scrutinised. Section 2 of the act, requiring courts to consider Strasbourg jurisprudence, is important here. Even in war, where a contracting party can derogate from the convention, it is, as stated in Aksoy v Turkey (1997), “for the court to rule whether… the states have gone beyond the 'extent strictly required by the exigencies' of the crisis.”
If the UK becomes embroiled in a war with Iraq the threats to civil liberties are likely to intensify. The Human Rights Act will be put to its greatest test. We should remember that it is not, in the final analysis, the scheme of the Human Rights Act that will protect liberties. Even the strongest charters of rights can be ignored or interpreted away. Much will depend on the readiness of lawyers and judges to be bold in times when human rights are most at risk yet most required.
Nicholas De Marco is a barrister at Blackstone Chambers and general editor of Administrative Court Digest