National Security Case Law: A Continuing Trend

On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, noted briefly at p 788 of the book). The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.

The issue is this: under what circumstances may a state that is bound by the European Convention on Human Rights (ECHR) be required not to deport an individual to a country that is not bound by the ECHR where the individual concerned will face a trial that would fall short of the standards set by Article 6 (the right to a fair trial)? The ECtHR has ruled before that, as a possibility, there may be such circumstances but until its decision this week it had never found them to exist in fact. (Indeed, the ECtHR first identified the principle at issue here in Soering v UK in 1989, but in the 22 years following that judgment the Court had not once found that an expulsion would be in violation of Article 6.)

Abu Qatada has been convicted twice in Jordan, both times in his absence, for various serious terrorist offences. He alleges that part of the evidence against him had been obtained under torture. The UK sought nonetheless to deport Abu Qatada to Jordan, having first agreed a Memorandum of Understanding with the Jordanian authorities that Abu Qatada himself would not be subjected to treatment contrary to Article 3 ECHR (thus complying with the well-known principle in Chahal v UK: see p 780 of the book, and see further Tooze [2010] PL 362).

In RB (Algeria) the House of Lords recognised that ECtHR authorities suggested that a deportation would not be lawful where the deportee would face in the receiving country a trial that amounted to a “flagrant denial of justice”, or a “flagrant breach of Article 6″ or, as the Court of Appeal had put it, a “complete denial or nullification of the Convention right”. Their Lordships also recognised that the Jordanian proceedings to which Abu Qatada would be subject would be unlikely to meet the standards of Article 6. They ruled, however, that the departures from those Article 6 standards would not be so serious as to satisfy the tests of flagrant denial. The Court of Appeal had ruled that, for Abu Qatada’s deportation to be lawful, a “high degree of assurance” would be required that evidence obtained by torture would not be used in the proceedings. For the House of Lords, this was setting the bar too high. Lord Phillips ruled, for example, that the principle that the state must stand firm against permitting the use of evidence obtained under torture “applies to the state in which an attempt is made to adduce such evidence” but “it does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect …” (para 153; see to similar effect Lord Hoffmann at paras 197-201).

In its judgment in Abu Qatada the ECtHR first clarified the test (“flagrant denial of justice”) and then, for the first time, applied it in favour of an applicant. As to the former the Court said this (paras 260-1):

A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.

In assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases [such as Chahal]. Therefore, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subject to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it.

Applying this test to the facts of the case, the Court ruled as follows (paras 263-7):

The central issue in the present case is the real risk that evidence obtained by torture of third persons will be admitted at the applicant’s retrial … Gäfgen v Germany (2010) reflects the clear, constant and unequivocal position of this Court in respect of torture evidence. It confirms [that] … in the Convention system, the prohibition against the use of evidence obtained by torture is fundamental …

The Court considers that the admission of torture evidence is manifestly contrary … to … Article 6 … It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial.

That there was a real risk that if he was deported to Jordan Abu Qatada would face a trial at which evidence obtained by torture would be used therefore meant that it would be contrary to Article 6 ECHR for the UK to deport him.

The UK now has three months to decide whether to refer this judgment to the Grand Chamber.

Two comments fall to be made about this decision.

The first is: where does this case leave their Lordships’ controversial ruling in A (No 2) (see p 747 of the book)? Recall that in this case the House of Lords had strongly condemned the use of torture evidence but that by a 4:3 majority the Law Lords decided that such evidence should be excluded only if it was established, on a balance of probabilities, that it was obtained by torture. Recall further that the three Law Lords in the minority on this point were scathing about it (see p 747). (A (No 2) is a judgment based on the common law; not on Convention rights.) In Othman (Abu Qatada) v UK the ECtHR commented on this question, saying the following (para 274):

The Court does not consider that the balance of probabilities test, as applied by the majority of the House of Lords in A (No 2), is appropriate in this context. That case concerned proceedings before SIAC to determine whether the Secretary of State’s suspicions that an individual was involved in terrorism were correct. Those proceedings were very different from criminal proceedings where, as in the present case, a defendant might face a very long sentence of imprisonment if convicted. In any event, the majority of the House of Lords in A (No 2) found that the balance of probabilities test was for SIAC itself to apply: an appellant before SIAC had only to raise a plausible reason that evidence might have been obtained by torture. Therefore, the Court does not regard A (No 2) as authority for the general proposition that, subject to a balance of probabilities test, evidence alleged to have been obtained by torture would be admissible in legal proceedings in the United Kingdom, least of all in criminal proceedings.

With respect, not all of this reasoning is persuasive. In at least one sense, the SIAC proceedings in A and in A (No 2) were not so different from criminal proceedings where a defendant may face a long term of imprisonment: after all those SIAC proceedings were concerned with a scheme of indefinite detention without trial (under the Anti-terrorism, Crime and Security Act 2001, s 23). Abu Qatada himself, of course, was one of the claimants in A (No 2): he was one of the men subjected to the internment regime that was impugned by the House of Lords in its famous Belmarsh judgment. Further, it is not clear that the ECtHR has correctly understood the application of the balance of probabilities test in A (No 2). In RB (Algeria) Lord Hoffmann noted (at para 202) that the effect of the Court of Appeal’s decision in Abu Qatada’s case was that the Jordanian court would be perpetrating a flagrant denial of justice if it did not exclude evidence which would be admissible before SIAC! Thus, it may well be that, on analysis, the decision of the ECtHR in Abu Qatada does a great deal more damage to the House of Lords’ approach to the admissibility of torture evidence in A (No 2) than the Strasbourg court was prepared to admit. If I am right about that, hurrah for Strasbourg.

The second comment to make about Othman (Abu Qatada) v UK is hinted at in my title: this is but the latest decision of the Strasbourg court in a national security case from the UK in which the ECtHR has overturned the House of Lords: MB was effectively overturned in A v UK (as their Lordships recognised in AF (No 3)); Gillan was next; then Al Skeini and Al Jedda; and now Abu Qatada. This is quite a list. It makes for sobering reading for anyone who thinks that human rights are safe in the UK, even in our highest courts. Strasbourg may still get it badly wrong from time to time, but my word do we still need it. Strasbourg was right, and the House of Lords wrong, in all five of these national security cases.

The Process of Constitutional Change

We consider the story of British constitutional reform at the end of chapter 1 (pp 24-47). To this story must now be added a further set of references. Of growing concern during the period of reform has been the issue of the fairness of the process. Too many times it looked (at least to some) that the Government of the day was “playing politics with the constitution”, changing it to suit its needs rather than because what it was seeking to do was genuinely in the national interest. This concern came to the fore in 2003-05 with the sorry saga of the aborted abolition of the post of Lord Chancellor; it surfaced again in 2009-10 as the Brown Government first delayed and then, at the last minute, radically amended its Constitutional Reform and Governance Bill (see p 30); and the arguments were rehearsed yet again when the Coalition rushed out its first round of constitutional reforms, with the Fixed-term Parliaments Bill (now Act) and the Parliamentary Voting System and Constituencies Bill (ditto) seeming to have more to do with coalition compromises than with principled, consultative constitutional reform.

In the light of its strong criticisms of each of these Bills/Acts, the House of Lords Constitution Committee launched an inquiry into what it called The Process of Constitutional Change. Its report (15th report of 2010-12, HL 177) was published in July 2011; the Government response (Cm 8181) was published in September; and both were debated in the House of Lords on 7 December 2011.

The report reiterated various of the criticisms of recent practice (paras 23-49) and made a series of recommendations designed to ensure that in the future best practice would be adhered to. The Committee proposed that ministers should, upon the introduction of a new Bill, explain formally what its constitutional implications were and, if there were any, what processes had been undertaken in developing the Bill (had there been prior public consultation, or pre-legislative scrutiny, or even a referendum, etc) (paras 65-105). This, it was felt, would focus the ministerial mind on questions of due process (as well as on substance) and would help to facilitate more effective parliamentary scrutiny of the process of constitutional change.

These proposals — which were hardly revolutionary — were unceremoniously shot down by the Government, who refused to countenance the idea that any distinction should be drawn between constitutional law-making and law-making in any other field. There was no case, in the Government’s view, for thinking any more carefully about legislation affecting the constitution than legislation affecting any other area of public policy.

While some Peers indicated a degree of sympathy with the Government, a large majority of those who spoke in the debate on 7 December supported the Constitution Committee both in terms of its diagnosis of the problem and as regards its proposed solutions. Despite the Government’s rather uncompromising stance, it may yet be that the Committee has set out a blueprint for at least what should be done. Further measures of constitutional reform are likely to be forthcoming in the 2012-13 session of Parliament. We shall see how closely (if at all) they adhere to the processes recommended by the Committee.

 

 

Update on Legislation

The last ten weeks of 2011 were a relatively quiet time in terms of major constitutional developments. The beginning of 2012, by contrast, has started with a real bang, and is witnessing a dispute between the UK and the Scottish Governments that could well set much of the constitutional agenda for the next three years. I will say more about this in another post in the next few days.

First, there are two matters from the end of 2011 that I want to update. This post concerns legislation. The next post will concern an under-reported development with regard to the process of constitutional reform.

Three Bills referred to in the book have now been passed (this is in addition to those Bills noted below last October). The newly enacted measures are the Localism Act 2011, the Public Bodies Act 2011 and the Terrorism Prevention and Investigation Measures Act 2011. A word now on each.

Section 1 of the Localism Act has now enacted the form of words (quoted from clause 1 of the Bill) that we cited at p 273 of the book. The question posed at p 273 and the comment made at p 276 still apply: i.e., whether the new s 1 will mean the end of the ultra vires principle or whether it will mean only a qualification to that principle; and to note while the Act liberalises local authorities to some extent, at the same time it confers a range of fresh powers on the Secretary of State. The former will be determined in due course by case law. One further provision of the Localism Act 2011 to note is section 25, which concerns the law of bias (or predetermination) in the context of local authorities. Case law on this matter is set out in chapter 10 (p 696). Section 25 would appear to make it harder than is suggested in the case law to argue that a decision of a local authority should be quashed for reasons of predetermination.

The Public Bodies Act 2011, as prefigured at p 436, effects very considerable reforms to arms-length bodies (or quangos). As predicted in chapter 2 (pp 129-30) the legislation was substantially amended during its passage through Parliament in the light of the extensive criticisms of the Bill that were voiced by the select committees that examined it. For example, a number of the procedural safeguards now legislated for in section 10 of the Act were not contained in the Bill as it was first introduced.

Finally, the Terrorism Prevention and Investigation Measures Act 2011 (the TPIMs Act) will, when it is brought fully into force, repeal the Prevention of Terrorism Act 2005; and thus TPIMs will replace control orders in the panoply of the UK’s counter-terrorism measures. The ministerial statement that announced this is reproduced at p 787 of the book.