The UK Courts and the Decision, Human Rights Act 1998 Inalienable - Essay Example

Introduction This paper examines a case in public law where an issue with terrorism and national security has caused the Prime Minister to and HomeSecretary to attempt to use the prerogative powers of public order and national security to use drastic measures to deal with terrorism. This measure because necessary because the PM and Home Secretary deem the acts of Parliament as being insufficient in dealing with terrorism in the UK. Due to that, they seek to get the Privy Council to issue an Order in Council that states that: 1. Human Rights Act 1998 is not applicable to the exercise of the Order 2. The formulation of a special tribunal by the Order in Council for the trying of suspected terrorism and terrorist sympathisers 3. The tribunal could detain suspects for 90 days. The period is renewable. 4. The nomination of a state advocate to represent the suspect. They cannot choose their own representatives. 5. The state advocate of a suspect could not meet with suspects. 6. The tribunal would hear the case in the absence of the suspect and the state advocate would be appointed to represent the interest of the suspect. 7. Guilty persons will be detained indefinitely and not allowed to meet their visitors. 8. Suspects would be subjected to “harsh but realistic” regime of incarceration [possibly, torture] 9. There would be no right for appeal for the suspects when they are convicted. 10. There would be no press reports of any type related to the suspects and their hearings. The paper provides an advice for the Prime Minister and Home Secretary on the problems they are likely to encounter with the Order in Council and its provisions. This would be done in relation to Parliament and to the Courts. The UK Courts and the Decision The courts in the UK are required to operate within the fundamental and primary framework of laws in the UK that are a valid part of the laws of the land. This include the traditional sources of UK law and other sources of the law in the country. Primarily, the proposed order in council is meant to affect the fundamental human rights of suspected terrorists and terrorist sympathisers. This is a portion of UK law which is influenced and covered by the Human Rights Act 1998 which integrates the European Convention of Human Rights into the UK legal system. Thus, the courts are bound to regard the Human Rights Act. The following pointers below make it imperative for the courts to disregard or at least qualify certain elements and portions of the proposed law when dealing with suspected terrorists. This means that the Prime Minister and Home Secretary will not be able to crack down on terrorists as harshly as they seek to do it. Human Rights Act 1998 Inalienable The first article of the proposed Order in Council states that the Human Rights Act 1998 has no application to suspected terrorists who will be arrested within the period under review. Basically, this is a very strong statement that the courts cannot apply in their cases. This is because Article 1 of the Human Rights Act states that the act covers all conventional rights of all persons. It states specifically that the convention “shall secure to everyone within their jurisdiction, the rights and freedoms defined in... this convention...”. This implies that all persons are covered by the Human Rights Act 1998 and it incurs inalienable right that all human beings in the UK are entitled to. Hence, it is not possible for the Prime Minister and the Home Secretary to invoke any law that will seek to deny any citizen or person in the UK and in foreign territories around the world where UK forces or representatives operate and the rules permit the use of conventional international rights1. Article 14 of the Human Rights Act 1998 states that the invocation of the Human Rights convention should not be done in a manner that is discriminatory. In a case relating to Clift V United Kingdom (2010), it was established that discrimination against people in the freedom of having a life was to be applied consistently to all persons and not in a manner that is deemed discriminatory. Thus, due to Article 1 (Protocol I) which makes the HRA (1998) universal in its application and Article 14 prevents being selective in the application of the articles in real life cases. This means that judges will have to apply the Human Rights Act in all cases and not be selective. Hence, the courts will have no other option but to disregard the Order in Council if it is ever passed. Application of the HRA in UK Courts There are some absolute rights in the Human Rights Act whilst there are some qualified rights2. Absolute rights are those that are enshrined and imperative and cannot be modified in their application. However, qualified rights can be limited by the authorities in the state. The absolute rights include: Article 3: Prohibition against torture Article 4: Prohibition against slavery Article 7: no punishment without law and Article 9: Freedom of thought, conscience and religion The other laws are qualified and can be limited and this include: Article 2: The right to life Article 5: Freedom of person Article 6: Right to fair trial Article 8 Respect to privacy and family life Article 10: Freedom of expression Article 11: Freedom of peaceful assembly and association Article 13: Right to an effective remedy for breach of convention Article 14: Rights to enjoy the rights of the freedom of the convention without discrimination. This discussion of qualified rights brings to board the natural question of what causes the qualification of these rights? According to Barnett and Diamantides, there are six main factors that can cause the eight potentially qualified rights to be limited by a nation or a community and this include: 1. Protection of national security. 2. For the prevention of crime and disorder. 3. The protection of health and morals. 4. Protection of the rights or freedom of others. 5. Prevention of disclosure of information received in confidence. 6. Maintaining authority and impartiality of the Judiciary3 This means that where some of this actions come up, the courts might have to interpret the HRA 1998 in a way that the public interest can be preserved. However, in doing so, they have to use the principles of proportionality which states that where action is to be taken to limit the rights of a given person, the restriction should not be more than what is necessary to achieve the legitimate aim4 Critique of the Facts of the Proposed Law From the preamble of the Human Rights Act defined above, there are some specific implications in the proposed order in council which will not be acceptable and hence, cannot be integrated into the public institutions. Operation of the Tribunal V Right to a Fair Trial Article 6 of the European Convention on Human Rights states that there must be a fair trial before an independent and impartial tribunal. From the proposed arrangements of the new order that is being proposed, it seems that there are some elements and aspects of the principles that do not constitute a “fair” and “independent” trial. Everyone has the right to a fair and public trial as per Article 6. In Golder V United Kingdom5, a convicted criminal serving a prison term sued a prisons officer for defamation. He sent a request to the Home Secretary for a solicitor but that request was denied. The court held that Article 6 was denied. This implies that whatever a person does or whatever his status is, he has the right to get a solicitor. This means that in principle, terrorists or suspected terrorists cannot be denied the right to a lawyer when the need one. Otherwise, the process will be deemed unfair6. Also, it is not allowed for anyone to be held for up to 48 hours without being given the right to access legal advice as per Article 67. Additionally, a person will have to be given privacy to engage or consult with his chosen solicitor. In a related case of Brennan V United Kingdom8, it was held that in a situation where a suspect was questioned in the presence of police officers was an abuse and breach of his fundamental human right under Article 6. Additionally, everyone has the right to appeal under the Article9. This is a right that the courts cannot deny to the people who will be detained under this law. Definition of Terrorist Sympathisers Clearly, the definition of terrorist sympathisers is quite broad and can potentially interfere with Article 9 of suspects. This is because the article guarantees the right of people to freedom of thought and conscience. Thus, people can technically support the cause of terrorists without being tagged as terrorist sympathisers. This has ramifications for freedom of expression (Article 10) and freedom of association (Article 11). Lawfulness of Arrests and Detention Arrest and detention must be done in a reasonable manner in order to ensure that justice is served. Articles 5 and 6 relate to the right to liberty and freedom. The Prevention of Terrorism (Temporary Provisions) Act 1974 was held to be in violation of Article 5 of the act because it allowed the detention of terrorists for up to seven days without trial under the discretion of the Home Secretary10. Moreover, in OHara V United Kingdom11, it was held that the failure of authorities to present a person before trial promptly is a breach of his fundamental human rights under Article 5. This order in council, seeks to hold suspected terrorists for 90 days and this is renewable. This will be a serious and gross abuse of the fundamental human rights of suspects and it will take the UK to the dark ages of modern history and the government will be on the same level as the Nazi, Stalinist or Apartheid governments of Germany, Soviet Union and South Africa respectively. Degradation of Punishments Article 3 states that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. This include the use of torture and other means to get people to confess to crimes where they are forced to give information against their will. In the proposed law, suspects are to be held in solitary confinement with no right to visitors. This is a degrading punishment and a denial of fundamental human rights. Also the use of “harsh but realistic” methods to get the suspects to speak in a 90-day period could be tantamount to torture and the use of force to extract information against the will of suspects Advice to the Prime Minister and Home Secretary The HRA cannot be eliminated in application due to Article 1 and 14 which make it universal and avoids discrimination. There are some inherent rules and principles that cannot be limited and this include prohibition of torture, punishment without law and freedom of thought. The attempt to apply the law will have challenges that it will inevitably prevent victims from getting a fair trial, which is a principle that cannot be limited in the era of the HRA 1998. The arrests and detentions are not lawful as they limit the rights of suspects in investigations. The punishments proposed are degrading. Due to the strong conflicts between the proposed law and rights of suspects that the law targets, it is likely that the law will not be applicable in practice and most of it cannot be invoked in court cases. Parliament & the Order in Council The definition of orders in council is complicated. One of them is that: Orders in Council are issued by the Queen “by and with the advice of Her Majesty’s Privy Council” and are made under powers given in a parent Act. They can be used for a wide variety of purposes but most frequently when an ordinary Statutory Instrument would be inappropriate, such as transferring responsibilities between government departments or where it affects the constitution by extending legislation to the Channel Islands. Orders in Council were also used to transfer powers from ministers of the UK Government to those of the devolved assemblies.12 This implies that an order in council needs to be made through a parent Act which allows an authorised person in government to make a law. Thus, there must be a parent act that will help the individual in question to make the law. From the actions of the Prime Minister and Home Secretary, they seem to be acting to prevent a chaotic situation which requires a strong action. From the examination of the proposed law of the Prime Minister and Home Secretary, it seems it will go against the Human Rights Act 1998 which was enacted by parliament. And with the parliamentary supremacy that comes with it, it can be overwritten only by a specific element of the act that gives them the power to do so. This can be found in Article 15 which deals with the Derogation of the HRA 1998. Derogation and Limitation of Human Rights Act 1998 Article 15 provides that if a state finds it impossible to comply with specific articles, they can state to derogate it or enter a reservation as to a matter in the convention13. However, there is no derogation in the area of the right to life (Article 2), freedom from torture (Article 3) freedom from slavery and servitude (Article 4) and freedom from retrospective criminal liability (Article 7). Thus, from a superficial view, it seems derogation could be an option that could justify the refusal to respect the Human Rights Act. However, the reason why the Prime Minister and Home Secretary cannot use that to create a statutory instrument that will bind the court in this matter is that, the right of derogation is very limited. This is because the law states that: In time of war or other public emergency threatening the life of the nation, any high contracting party may take measures derogating from its obligations under this convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law14 However, the lawfulness of derogation is very questionable. The case of Brogan V United Kingdom (1988) the parties challenged when and where a “public emergency” could be said to have occurred. In this case, there was a strong contention of whether the disturbances in Northern Ireland which included riots and killing would constitute a public emergency or not. It was eventually held that a case of chaos in Northern Ireland, a case for derogation under the circumstances in Northern Ireland is not legal15. In effect, it is apparent that the situation does not constitute an activity that allows the Prime Minister and Home Secretary to act as “high contracting parties” to make a law that can deal with it. This is because the situation is not really a public emergency. Hence, they cannot get the power to override parliaments law. This means that the Human Rights Act 1998 will have to be upheld and the Prime Minister and Home Secretarys quest to limit it is an attempt to act ultra vires and this is unconstitutional. Bibliography Books Barnett, Hilaire. Constitutional and Administrative Review 9th Edn (London: Routledge, 2011) Barnett, Hilaire and Diamantides Marinos. Public Law 3rd Edn (London: University of London. 2012) Journals House of Commons Delegated Legislation (London: The Stationary Office, 2013) Cases Brannigan and McBride V United Kingdom (1993) Brennan V United Kingdom (2001) Clift V United Kingdom (2010) Golder V United Kingdom (2005) Ireland V United Kingdom (1978) Magee V United Kingdom (2000) R (Al-Saadoon) V Secretary of State for Defence (2009) Steel V United Kingdom (1999) 28 EHRR 603 Taylor V Lawrence (2002) Whitfield V United Kingdom [2005] Read More