If recent commentary is any guide, among online magazine NewMatilda.com’s readers there seems to be a growing chorus of opinion in favour of a Charter of Rights. Australia has been consistently in breach of its international human rights treaty obligations.* So, it is unsurprising that many are reaching the conclusion that more needs to be done to entrench our freedoms and liberties.
In this context a recent decision of the House of Lords in Britain, the nation’s highest court, provides a powerful and timely example of how a Charter can constrain the abuse of executive power. The case concerned the detention of people suspected of being international terrorists. Its relevance to Australian conditions, therefore, is clear.
In 1998, Britain incorporated the European Convention on Human Rights into its domestic law. The Human Rights Act which gave domestic effect to the international treaty came into force in 2000. What this meant was that people in Britain, from that time onwards, could take action in British courts to protect their human rights against any infringement by legislative or executive action.
In this case, A(FC) and others v Secretary of State for the Home Department (December 2004), nine people who had been detained under the provisions of Britain’s Anti-Terrorism legislation appealed against their continuing imprisonment. Their detention had been ordered pursuant to a draconian provision in the anti-terror laws (thankfully not yet enacted in this form in Australia) permitting the Home Secretary to issue a certificate where he or she suspected that a foreign national residing in Britain was an international terrorist. Once the certificate was issued, the person specified in it could be detained by the Minister. Further, detention would continue indefinitely if the person could not be deported, either because to do so would be in breach of international law or because deportation was impractical for some other reason. The appellants in the case had all been detained for three years or more, without charge and without prospect of trial.
The Blair government knew that this provision would be in breach of the European Human Rights Convention. So by a parliamentary enactment it lodged a derogation from Article 5 of the Convention. Article 5 provides that:
(5)(1) Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.
The detention of people suspected of being international terrorists did not fall within any of the specified exceptions. So, the derogation order was necessary if the draconian provision was to remain in place.
However, countries cannot derogate from the Convention as and when they like. They can only do so ‘to the extent strictly required by the exigencies of the situation and provided that the measures proposed are not inconsistent with a nation’s other obligations under international law’.
So, the question before the Court was this. Could the British Government derogate from its obligation to secure the right to liberty and security of the person and in so doing provide for the detention, without trial and without prospect of release, of non-citizens whom it suspected were international terrorists?
The House of Lords’ answer was a resounding ‘No’. Baroness Hale summarized the Court’s position forcefully in these terms:
These people are not detained under Article 5 with a view to deportation or extradition…They are being detained on suspicion of being international terrorists, a reason which does not feature in Article 5. It does not feature because neither the common law, from which so much of the European Convention is derived, nor international human rights law allows indefinite detention at the behest of the executive, however well-intentioned. It is not for the executive to decide who should be locked up for any length of time, let alone indefinitely. Only the courts can do that and…only after the grounds for detaining someone have been proved. Executive detention is the antithesis of the right to liberty and security of the person.
The European Convention, then, provided the ground upon which the Court could stand and determine the compatibility of the Government’s action with its international human rights obligations.
But it also did more than this. It provided a set of legal principles, and a form of legal reasoning, which the Court could use to assess, more or less objectively, the reasonableness of the Government’s restriction on the liberty of the subject. This is how it worked.
As noted earlier, countries which have signed up to the European Convention can derogate from their obligations in certain, specific circumstances. Derogation is permissible where, first, there is a state of war or public emergency; secondly, the measures derogating from the rights must be no more than are strictly necessary to meet the threat; and thirdly, the measures must not conflict with the nation’s other binding obligations under international law. These criteria, then, provided a principled framework within which the Court could determine whether the power to detain foreign nationals was proportionate to the harm it was designed to defeat.
The House of Lords decided in relation to the first criterion that the threat posed by terrorism was sufficient to constitute a public emergency. In doing so, it acknowledged that the Government rather than the Court should properly be responsible for assessing the magnitude and imminence of the threat. Only in an extreme case, perhaps involving bad faith, would the Court second guess the Government’s view on this question.
Next, however, the Court looked at whether the derogation conformed to the principle that any measure adopted should not go beyond what was ‘strictly required by the exigencies of the situation.’ The essential question here was whether the means used to impair the right, in this case the right to liberty, were no more than were necessary to accomplish the legislative end i.e. the prevention of terrorism. It was here that the Government’s position ran into trouble.
The problem was that the power of executive detention applied in law only to foreign nationals. It did not apply to British citizens. Yet the evidence before the Court was clear. Citizens and non-citizens alike fell within the class of people who might be regarded as having been involved in activities associated with terrorism or terrorist organizations.
It was not thought necessary for the prevention of terrorism to legislate for the certification and detention of citizens. How then could it be necessary and reasonable to legislate for the detention of non-citizens since they posed no greater or lesser threat? The conclusion was obvious. If it was not strictly necessary to lock citizens up at the will of the executive, it was not strictly necessary to lock non-citizens up either. The means, the Court concluded, were therefore disproportionate to the ends.
The third criterion that had to be considered was the one which stated that the measure derogating from the Convention right should not, in any other way, breach international law. Here, too, the ground crumbled under the Government’s feet. In the Convention, and in international law more generally, it is axiomatic that rights and freedoms should be enjoyed without discrimination on any ground such as sex, race, colour, language, religion and so on. In this instance, however, a clear case of discrimination on the basis of nationality existed. As Lord Bingham put the matter succinctly:
The undoubted aim of the relevant measure…was to protect the UK against the risk of Al-Qaeda terrorism…That risk was thought to be presented mainly by non-UK nationals but also and to a significant extent by UK nationals also. The effect of the measure was to permit the former to be deprived of their liberty but not the latter. The appellants were treated differently because of their nationality or immigration status.
The principle of equality before the law is fundamental in every Western legal system. As Lord Hoffman said:
Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour.
It followed naturally that the law permitting the executive detention of foreign nationals was discriminatory. Since no rational ground could be found for that discrimination, the derogation order could not be supported legally as it constituted a breach of one of the fundamental principles of international law.
Consequently, the derogation order was quashed and the relevant sections of the anti-terrorism legislation were declared incompatible with Britain’s obligations under Article 5 of the European Convention on Human Rights.
What then can we take from this example that is of relevance and value to the Australian debate? To begin with, it is clear that a Charter of Rights can afford significantly greater protection for individual rights and freedoms than exists at present. The quasi-constitutional status of European Convention rights incorporated into British law meant that individual liberty could not be overridden by simple parliamentary enactment.
Next, the law of the European Convention, as developed by European courts including courts in the UK, provided a principled framework within which to assess the reasonableness and rationality of governmental action that infringed upon human rights. There is no argument that in extraordinary circumstances, governments may properly adopt measures which detract from freedoms and liberties. But a Charter requires that such action be justified in terms of emergency, be proportionate to the end to be served and not be discriminatory.
It is worth noting in the UK case, further, that the Court’s declaration of incompatibility did not have the effect of striking down the anti-terror provisions. Rather, a declaration returns the matter to parliament for immediate reconsideration. In most cases the relevant provisions are amended. Politically it is very difficult for Government to justify a continuing breach of human rights to the parliament and public alike. The system is a good one, therefore, because it creates a constructive dialogue between the courts, the parliament and the people in relation to the observance of people’s fundamental rights. The dialogue is informative and educative.
Finally, of course, a Charter provides a legal avenue for those whose freedoms have been trampled to challenge the injustice of their treatment. Not all cases will be meritorious but some will be, and society will be better for the provision of an appropriate remedy.
In this context it is worth remembering that if the British case had occurred in Australia, our Constitution and our High Court could not, as the law stands, provide any similar avenue for redress.
* Those interested may like to read my, Mr Ruddock Goes to Geneva, UNSW Press 2003