Practice and Procedure

Political capital

PUBLISHED December 1, 2006

Human rights: torture and government attitudes worry Keir Starmer QC and Sejal Parmar, even though recent case law proves we have come at least some way on human rights issues

Human rights have been at the forefront of an unprecedented political assault in the last year, predominately because of the constraints that the Human Rights Act 1998 (HRA) sets on government action. Tensions between the judiciary and the executive culminated in May, when the Prime Minister tried to undermine a ruling allowing Afghan asylum-seekers who had hijacked a plane to remain in Britain by branding it an ?abuse of common sense?. He was wrong to do so. In the first place, the idea that the judiciary is for some reason surrendering its independence in some ill-thought out attempt to frustrate the government is absurd and smacks of paranoia. Secondly, as Lord Bingham pointed out in A (FC) v Secretary of State [2004] UKHL 56, although the government is fully entitled to insist on the proper limits of judicial authority, it is wrong to stigmatise judicial decision-making as in some way undemocratic. The HRA 1998 gives the courts a very specific, wholly democratic, mandate.

Courtroom clashes

Over the year, anti-terrorism and security measures have provided, perhaps unsurprisingly, for some of the sharpest courtroom clashes. Control orders, adopted in response to the House of Lords ruling in A (FC) that indefinite detention was incompatible with basic human rights, have been challenged on the basis that they breach the right to liberty under Art 5 of the European Convention on Human Rights (ECHR) and the right to a fair hearing under Art 6 of the ECHR. So far, the results are even. In August 2006, the Court of Appeal quashed a number of control orders on the basis that they amounted to a deprivation of liberty contrary to Art 5 of the ECHR. But at the same time, it found that the non-disclosure to a controlled person of the case against him with the result that he could not challenge it effectively involved no breach of due process. Both cases are now on appeal to the House of Lords.

The ?War on Terror? has also required courts to grapple with complex issues of international and human rights law. In R (Al-Jedda) v Secretary of State for Defence [2006] EWCA Civ 327, the Court of Appeal held that the UK?s human rights obligations were displaced its obligation to obey a UN Security Council Resolution. If upheld, that will allow the undemocratic UN Security Council to override the basic human rights obligations solemnly entered into by over 160 of the world?s 193 states. That too is pending before the House of Lords.

More positively, in R (Al Skeini) v Secretary of State for Defence [2004] EWHC 2911, the Court of Appeal accepted the extra-territorial application of the HRA to those falling within the jurisdiction of the UK in Iraq . By that means, the families of those killed at the hands of UK soldiers in Iraq may at least find out one day how their loved ones met such tragic and unnecessary deaths. The House of Lords in Jones v Saudi Arabia [2006] UKHL 26 , however, refused to accept that there was any jurisdiction to hear claims against Saudi Arabia by men who were systematically tortured by Saudi state officials. The idea that these individuals could or would return to Saudi Arabia to pursue their claims only has to be stated to expose the gaping hole now left in the protection offered to torture victims.

More generally, there has been an increasingly willing to recognise ?public? or classical civil and political rights over ?private? or ?intimate? rights. Compare the House of Lords? judgments in Jameel v Wall Street Journal [2006[ ukhl 44 (strengthening press freedom on matters of public interest as protected by Art 10 of the ECHR) and A v Home Secretary (No 2) (torture) [2005] UKHL 71 (emphasising the absolute ban on torture under Art 3 of the ECHR) with those in Ali v Lord Grey School Head Teacher and Governors [2006] UKHL 14 (denying that a school pupil?s right to education under Protocol 1, Art 2 of the ECHR had been breached when he had been excluded from a particular school), Kay v Lambeth LBC; Price v Leeds CC [2006] UKHL 10 (limiting the ability of occupiers to raise Art 8 of the ECHR arguments in possession proceedings) and the numerous decisions in immigration cases such as EM (Lebanon) v Secretary of State [2006] EWCA 1531 (refusing a challenge to an asylum decision based on Art 8 of the ECHR). Surely, as well, Ann Marie Rogers should have been able to advance her claim to the cancer drug Herceptin on pure human rights grounds.

Challenges ahead

Looking ahead, in 2007, torture is likely to re-emerge as a topic of judicial focus. Appeals will test the proposition that rogue governments, repeatedly in breach of their international obligations, can now be trusted not to torture those the UK chooses to return to their shores because of private promises to the Prime Minister that they will henceforth behave. Unsure about its prospects of appeal on that issue, the government is in the case of Ramzy v The Netherlands in the European Court in an attempt to reverse the rule that individuals should not be sent to be tortured or killed in third countries. So much for the absolute prohibition on ill-treatment.

Perhaps, in 2007, it is also time to abandon the bifurcated approach to public and private rights by exploring more imaginatively the breadth of Art 8 of the ECHR. While the Commission for Equality and Human Rights, which is due to start work in 2007, may be viewed by some as an appropriate forum for advancing social and economic rights, the integration of economic, social and cultural rights, taken perhaps from the European Social Charter and the International Covenant on Economic, Social and Cultural Rights, into mainstream human rights discourse is surely now a priority.