Biometric ID Cards - Essay Example

Biometric ID Card System Inserts His/Her Inserts Grade Inserts Inserts Here (Day, Month, Year) The government of a lare European country wants to introduce a new biometric ID card system for controlling access and ensuring national security. Well this is good for the state as matters like these are to be handled by the state and nothing can challenge the validity of it; national security, not even rights that are given to the individuals like for instance Article 8 Right to privacy of the Human Rights Act 1998. To talk of "National security" it means that there can be no overlap of the executive and judiciary, there should be a strict separation of power and so if there is no interference amongst them then this will uphold separation of power. BODY There are couple of cases that I have cited that show what upholds and what undermines national security. The famous GCHQ case or "COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS APPELLANTS AND MINISTER FOR THE CIVIL SERVICE RESPONDENT" tells us about the same scenario involving an issue of national security. The main functions of Government Communications Head quarters were to ensure the security of military and official communications and to provide the Government with signals intelligence; they involved the handling of secret information that was important to national security. Since 1947 the GCHQ was allowed to be in trade unions and many of them took the membership. There was a well established practice of communicating with each other; the officials and trade unions about the terms and conditions of the service of the staff. On 22 December 1983, the Minister of the Civil Service gave instructions under article 4 of the Civil Service Order in Council 1982 with the urgent variation of the terms and conditions which had the impact to abandon the trade union. There had been no consultation of staff with the union before issuing the order. The applicants sought a Judicial Review of Ministers orders on the ground that she had been under a duty to act fairly by consulting those concerned before issuing it. In an affidavit, the Secretary to the Cabinet deposed to disruptive industrial action in support of national trade unions that had taken place at GCHQ as part of a national campaign by the unions made to damage government agencies and that it had been considered that prior consultation about the ministers instruction would have involved a risk of precipitating more disruption and would moreover have indicated vulnerable areas of GCHQs operations. And it was held that the executive were not excepted from the Judicial Review just because it was carried out in pursuance of a power which came from common law, prerogative rather than a statutory source, a minister acting under a prerogative power might be under the same duty to act fairly. The appellants apart from considering national security had a lawful expectation that they were to be consulted before the minister issued her instruction of 22 December 1983 and the decision making process would have been unjust if they were not consulted so this cried out for a Judicial Review. However, it was for the executive not the courts to rule on it, national security outweighed fairness and that that the evidence established that the minister had considered was that she had shown her decision had in fact been based on considerations of national security that outweighed the applicants lawful expectation of prior consultation. The House Of Lords upheld the decision of the Court Of Appeal that the courts had no power to interfere in the matters of national security. This brought in the concept of justifiability. Two principals were established from this, first it was shown that the courts had power to review (through Judicial Review proceedings) prerogative acts as the acts of the parliament. Second was that the House of Lords held that equally the courts can review matters which were not of high policy. Justifiability determines matters which the courts regard themselves as competent to review. Non-justifiable issues were the making of treaties, the defense of the realm, the prerogative of mercy, the grant of honors, the dissolution of the parliament, appointment of the ministers and the disposition of the armed forces. Lets turn to another example A and others v Secretary of State for the Home Department. X and another v Secretary of State for the Home Department Following large scale terrorist attacks in the United States of America on 11 September 2001 the United Kingdom Government concluded that there was a public emergency threatening the life of the nation within the meaning of article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms1. Accordingly, it made the Human Rights Act 1998 (Designated Derogation) Order 2001, designating the United Kingdoms proposed derogation, under article 15, from the right to personal liberty guaranteed by article 5(1) of the Convention, as scheduled to the Human Rights Act 1983, and, by section 23 of the Anti-terrorism, Crime and Security Act 2001, provided for the detention of non-nationals if the Home Secretary believed that their presence in the United Kingdom was a risk to national security and he suspected that they were terrorists who, for the time being, could not be deported because of fears for their safety or other practical considerations. The nine appellants who were detained under the 2001 Act appealed to the Special Immigration Appeals Commission. The commission concluded that there was a public emergency threatening the life of the nation and that, therefore, the Government had been entitled under article 15 to derogate from its obligations under the Convention to the extent strictly required by the exigencies of the situation, which it had done. However the commission quashed the 2001 Order and granted a declaration that section 23 of the 2001 Act was incompatible with articles 5 and 14 of the Convention in so far as it permitted the detention of suspected terrorists in a way which discriminated against them on the ground of nationality, since there were British suspected terrorists who could not be detained under those provisions. The Court of Appeal allowed the Secretary of States appeal and dismissed the appellants cross-appeals. Though the response necessary to protect national security was a matter for the executive and Parliament, where Convention rights were in issue national courts were required to protect them by adopting an in-depth review of whether such a right had been impugned, and the courts were not precluded by any doctrine of deference from finding the proportionality of a measure taken to limit such a right; that the right to personal liberty was among the most fundamental rights protected and the restrictions imposed by section 23 of the 2001 Act called for close check; that since section 23 applied to non-nationals suspected of international terrorism but not to United Kingdom Nationals who were to be presented qualitatively the same threat, since it allowed non- National suspects to leave the United Kingdom, since it did not address the threat from United Kingdom nationals, and since it was capable of applying to individuals who did not Pose that threat, it did not soundly address the threat to security, was a disproportionate Response, and was easily required by the exigencies of the situation within the meaning of Article 15; that since there had been no derogation from the stopping of discrimination in Article 14, since the relevant context was that of security, not of immigration control, and since the appellants were treated differently on nationality grounds from United Kingdom Nationals suspected of terrorism with whom they shared the nature of being both irremovable from the United Kingdom and suspected of terrorism, the United Kingdom nationals were the appellants relevantly analogous comparators; that since the motive of Section 23 was to safeguard the United Kingdom from the risk of a terrorist attack from both groups, and since only the non-national suspects were taken into custody, the measure unjustifiably discriminated against them on grounds of their nationality or immigration status; further, that such treatment was inconsistent with the United Kingdoms international human rights treaty obligations to afford equality before the law and to protect the human rights of all individuals within its territory. Malone v United Kingdom also states what is tend to be at stake. The applicant, an antiques dealer, was prosecuted for offences regarding to dishonest handling of stolen goods. During the trial, it was found that the applicants telephone had been tapped by the police acting on the authority of a warrant issued by the Home Secretary. Following his acquittal on the criminal charges, the applicant brought civil proceedings hoping to establish that the tapping of his telephone had been unjust. Sir Robert Megarry V.-C. decided that no declaration could be allowed to the applicant although he expressed serious concern about the state of the law relating to telephone tapping. Before the Commission, the applicant alleged violations of Articles 8 and 13 of the Convention ; he relied heavily on the earlier judgment of the European Court of Human Rights in Klass v. Germany 2 E.H.R.R. 214 . In its report, the Commission found violations of Articles 8 and 13 (see (1983) 5 E.H.R.R. 385 ). Held, unanimously, by the Court, that there had been a breach of Article 8 and, by 16 votes to 2, that it was not necessary to consider Article 13. The Court reserved the issue of just satisfaction under Article 50 and referred the issue back to the chamber. On the other hand R. v Secretary of State for Foreign and Commonwealth Affairs Ex p. Everett turned other way round in which, the Secretary of State is entitled to adopt and act upon a policy to reject passports to those persons for whose arrest a warrant is extant in the UK provided that details of the warrant are communicated and represented by the applicant are taken into account. The applicant, a British citizen living in Spain, applied for a new British passport. The application was rejected because, he was told, there was a warrant for his arrest in the UK and the Secretary of State would not issue a passport in these matters. The applicant sought judicial review of that decision. Before the hearing he received details of date and place of issue of the warrant on the stated offence in respect of which it had been issued. The judge held that the Secretary of State should have inquired into the Circumstances of the warrant of arrest prior to the refusal of the application and quashed the decision. Allowing the appeal, that judicial review was right for a decision taken under the Royal Prerogative where it was an administrative decision which affected the rights of the individual and was not to have foreign policy implications. The Secretary of State was entitled to adopt a policy of rejecting passports to those for whose arrest a warrant was extant and he was to act on that policy provided he justified the reason for his refusal and the details of the warrant and took in account any representations as to circumstances that may justify making an exception to the policy. Although the Secretary of State had failed to communicate the details of the warrant to the applicant by the time of the hearing, the applicant had received those details. There was nothing-extra ordinary in the case to make him an exception to the policy and so he had suffered no injustice. The judge should have exercised his discretion against granting relief Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374 applied. CONCLUSION According to national security the laws keep changing, while most of the time it is dealt in the hands of the executive and is said to be a non justifiable issue while we have seen how courts have dealt with non-justifiable issues like for instance reviewing of passports; R v Everett and posthumous pardon; R v Bentley. REFERENCES Barnet, H, 2004, Constitutional and Administrative Law. 5th ed. London: Cavendish Publishing. Lexis nexus Online Law Library; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case) Lexis nexus Online Law Library; A v Secretary of state for the Home Department [2004] UKHL 56;[2005] 2 AC 68 West Law Online Library; Malone v United Kingdom (1984) 7 EHRR 14 West Law Online Library; R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett [1989] 1 QB 811  Read More