Right of extradition of British nationals to USA

The Sunday Times, 2 December

http://www.timesonline.co.uk/tol/news/world/us_and_americas/article2982640.ece

“A senior lawyer for the US Government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under US law because the US Supreme Court has sanctioned it.”

Although commonly believed that the US may only use “extraordinary rendition” as
permitted kidnap of suspected terrorists, a senior lawyer (Alun Jones QC) for the
American government has told an inquiry that due to good American case law relating back to the 1860s on “bounty hunting”, the Supreme Court may not rule international kidnapping illegal.

An extradition treaty exists between the UK and the US, but apparently (case law
between the US and Mexico) the UK may not have any legal remedy to an abduction of a
British national. The US Justice Department refused comment on this assertion that the US may freely kidnap British citizens.

By Oscar Tang

The Telegraph, 3 December

“The US government’s view emerged during an Appeal Court hearing involving Stanley Tollman, a former director of Chelsea football club and a friend of Baroness Thatcher.”

 Further details found at:

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/12/03/wkidnap103.xml

The extradition laws which came into force in 2003 are said to be unfair and biased against UK citizens. The effect is (a) onesided – ie giving the US more power than the UK when extraditing criminals; and (b) can be used against anybody – not just suspected terrorists – and increasingly against white collar criminals.

There is a useful summary of the concerns and legal framework in The Lawyer (from 2006)

http://www.thelawyer.com/cgi-bin/item.cgi?id=120584&d=386&h=388&f=387

Lords Rule that Control Orders Breach Human Rights

“Control Orders Breach Human Rights, Lords Rule”

Daily Telegraph, 31/10/2007

The newspaper article deals with an objection by senior judges to the 18 hour home curfew
as it breaches the right to liberty (article 5 of the European Convention on Human Rights (ECHR)) and the right to fair trial (article 6 ECHR).Furthermore, they held that a 12-hour curfew was permitted and that suspected terrorists should be subject to “civil fair trial procedures”. which has been breached in some cases by the “special advocate procedure” .

Full story at:

http://www.telegraph.co.uk/news/main.jhtml;jsessionid=GMQFNYKNM215JQFIQMFCFF4AVCBQYIV0?xml=/news/2007/10/31/ncontrol131.xml

The foundation of the Rule of Law, as a moral principle, has been undermined, because
the human rights (including the right to liberty)  of persons subject to control orders have not been protected.

“Control orders breach human rights, law lords say”Guardian Unlimited, 31/10/2007 The government must rethink some aspects of control orders imposed on terrorism suspects, the law lords said today, while ruling that the overall system can remain in place. In a complex and lengthy series of decisions, Britain’s most senior judges said that the most restrictive aspect of the regime, an 18-hour home curfew, breached the human right to liberty. However, they held that shorter curfews, possibly up to 16 hours, were acceptable.

Full story at:

http://www.guardian.co.uk/terrorism/story/0,,2202266,00.html  

By Joanna Glajzer and Alec Liong   

Further information can be found at: 

BBC Q&A Control Orders

http://news.bbc.co.uk/1/hi/uk/6268959.stm

Control Orders: Key cases October 2007

http://news.bbc.co.uk/1/hi/uk/7070391.stm 

“The Governance of Britain” and a New Chapter on Liberty?

On 25 October 2007, Gordon Brown set out his plans to write the next chapter in the story of British civil liberties and pledged his commitment to a British Bill of Rights in a speech at the University of Westminister.

Mr Brown said that the British Bill of Rights would “entrench and enhance” individual freedoms.  Yet on the other hand, the Prime Minister stated that the bill would set out the responsibilities “that flow from British citizenship”.  He did not rule out controversial plans for ID cards nor the extension of the holding of terrorist suspects beyond 28 days but said that the latter would be subject to scrutiny.

See a summary of the meaning of a written constitution in the UK – as well as links to a summary of the Prime Minister’s speech on liberty and other documents at:

http://www.politics.co.uk/issue-briefs/domestic-policy/constitution/written-constitution/written-constitution-$366652.htm

This follows the publication on 3 July 07 of the Green Paper, “The Governance of Britain”. Gordon Brown said that the Green Paper sets out for  “a new British constitutional settlement that entrusts more power to parliament and the British people”. This “routemap” (rather than a “final blueprint”) concerns the shifting of power from the executive to Parliament ( for example through limits on the exercise of prerogative powers such as the declaration of war), and reform of public appointments and the role of the Attorney General etc.

See summary at:

http://politics.guardian.co.uk/constitution/story/0,,2117920,00.html

Governance of Britain Green Paper can be found at:

http://www.official-documents.gov.uk/document/cm71/7170/7170.pdf

 Related documents on Ministry of Justice Website:

http://www.justice.gov.uk/publications/governanceofbritain.htm

Chagos Islanders – Prerogative and Judicial Review

February 2007

On 5 February 2007, the Foreign and Commonwealth Office began their appeal against a High Court ruling of May 2006 (see below) which stated that the exclusion of the Ilois people from the Chagos Islands was unlawful. 2000 people were moved from the archipelago in the late 1960s and sent to Mauritius and the Seychelles, after the UK government secretly leased Diego Garcia to the US to use as an air base. The base has been used to launch bombing raids in both Iraq and Afghanistan and the Islanders are excluded on the grounds that their presence on the Chagos Islands would represent a security threat to the base – albeit one posed from 150 miles away.

Sir Sydney Kentridge QC representing the Islanders is arguing that the order in council, made under the royal prerogative but applied with extraterritorial effect was “repugnant” and ultra vires. The focus is on the constitutional position of such a prerogative power and the fact that there is no precedent for using it to exclude an entire population.

John Howell QC, representing the FCO, argues that the decision of May 2006 represents a “revolutionary” legal change that would affect all British overseas territory”.”

The appeal continues in the High Court listed as C1/2006/1465 The Queen on the application of Bancoult -v- The Secretary of State for Foreign and Commonwealth Affairs.

http://news.bbc.co.uk/1/hi/england/southern_counties/6333223.stm

“In a damning verdict [of May 2006], the High Court …overturned orders in council made by Tony Blair’s administration in 2004 which reversed a previous court decision and banned anyone from living on the islands, known officially as British Indian Ocean Territory. The orders, made under the royal prerogative, allowed the Government to dispense with the inconvenience of parliamentary oversight.” Thus in R (Bancoult) v Secretary of State for Foreign Commonwealth Affairs [2006] EWHC 1038 (Admin), the Court held that “The suggestion that a minister can, through the means of an Order in Council, exile a whole population from a British Overseas Territory and claim that he is doing so for the ‘peace, order and good government’ of the Territory is, to us, repugnant” (para 142).

The Court also reaffirmed the CCSU position – the modern approach to judicial review was that Orders in Council could be challenged. In Bancoult (No 2) the Orders were challenged on the basis of irrationality which did not include the Court making an assessment of the defence interests of the UK or the US and as such did not involve those matters of government policy which the courts have frequently held to be non-justiciable.http://www.telegraph.co.uk/news/main.jhtml;jsessionid=N5GQXJJH1QWORQFIQMFCFFWAVCBQYIV0?xml=/news/2006/05/12/wchag12.xml&sSheet=/news/2006/05/12/ixnews.html

November 2000

“The May 2006 ruling represents “the second time the islanders have won a ruling that their eviction was unlawful.”In 2000, the High Court ruled that a 1971 Immigration Ordinance banning people without permits from entering or remaining in the colony was unlawful.”See: http://news.bbc.co.uk/1/hi/uk/4760879.stm

In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 – the Court held that “the 1971 Ordinance fell outside the power conferred by the 1965 Order to make laws for the “peace, order and good government” of the Territory. Such a power required its people to be governed, not removed; and the political reasons for removal, although dictated by pressing considerations of military security, could not by any forensic test of reasonableness be said to touch the peace, order and good government of the Territory. Accordingly the relevant provision of the 1971 Ordinance was quashed.”

See also:http://news.bbc.co.uk/1/hi/uk/1004840.stm

The response of the Government to the decision was to legislate:“in June 2004 two Orders in Council were made – a Constitution Order and a subsidiary Immigration Order – the effect of which was to deny any person the right of abode in the Territory and to prohibit entry into or presence in the Territory without a permit. The Government explained that it had decided that resettlement could not be permitted and that the decision had therefore been taken to legislate to prevent it and to restore full immigration control over the Territory. This was because it was considered that any attempt to resettle any of the islands would compromise the security of the base at Diego Garcia and prejudice the military operations there.”

See excellent analysis of the 2001 and 2006 decisions in the speech of Lord Justice Richards of 7 June 2006, referred to in the section of this blog relating to judicial review and prerogative power.http://www.judiciary.gov.uk/publications_media/speeches/2006/sp070606.htm

Rule of Law – Contemporary Perspectives

Here are a number of perspectives on the way in which the rule of law operates in modern society – from both domestic and international perspectives. Much of this is taken from the Clifford Chance / JUSTICE Rule of Law Lecture Series. 

The Rule of Law and Constitutional Change 

The Attorney General Lord Goldsmith on 22 Februrary 2006 discussed the rule of law and constitutional change. He discusses three themes: 

1)     Importance of the rule of law and constitutional change.

2)     Policing the rule of law: The role of the courts and Parliament.

3)     Does the rule of law mean the rules of lawyers? 

Transcript available at:http://www.lse.ac.uk/collections/LSEPublicLecturesAndEvents/pdf/20060222-Goldsmith.pdf 

Are the rules of the game changing? 

At the PM’s Press Conference on 5 August 2005, Tony Blair outlined the government’s new security measures. Controversially and now often quoted, the PM stated: “Let no-one be in doubt, the rules of the game are changing”   This was to underline the necessity of new security measures to deal with new and increasingly dangerous terrorist threats. The transcript can be found at: http://www.number-10.gov.uk/output/page8041.asp 

The Judiciary and the Rule of Law 

Roger Smith, the Director of JUSTICE used Tony Blair’s phrase for the title of his Rule of Law lecture – “Changing the Rules: the judiciary, human rights and the rule of law” – on 1 March 2006. He considers the constitutional relationship between different arms of government and the change this is subject to in our current climate. Transcript available at:  http://www.lse.ac.uk/collections/LSEPublicLecturesAndEvents/pdf/20060301-SmithRoger.pdf 

In terms of the rule of law and the protection of human rights – do we place an ever increasing reliance on the judiciary? Cherie Booth QC argues that this is so, using the Belmarsh case as an example. See:  http://politics.guardian.co.uk/terrorism/comment/0,,1537446,00.html 

The above link provides excerpts from the 19^th Aslan Shah lecture on July 2005 in Kuala Lumpur. This is an interesting lecture which gives both a general and itnernational and specific and domestic description of the role of the judiciary in protecting human rights.  Booth also examines the role of the judiciary as guardians of the rule of law (through judicial interpretation) in the context and challenges of modern democracies. See  http://www.britishhighcommission.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1099136730412&a=KArticle&aid=1119529869003 

Terrorism  

Shami Chakrabarti, the Director of Liberty has also used the PM’s phrase against him on a number of occasions. Directly after the PM’s August 2005 Press Conference she stated in an article in the Guardian that:

“The “game” in question appears to be No 10’s national security policy less than a month after 52 Londoners were murdered on their way to work. The statement could enter the hall of political infamy for this poor-taste metaphor alone.

What then of the “rules”? These, it seems, are a reference not just to our Human Rights Act, but to centuries of democratic tradition. Rules against torture and arbitrary detention, the right to a fair trial, freedoms of conscience, expression and association and the principle of equality under the law – these foundations of our society were dismissed as the naive and outmoded “tolerance” of a “good-natured nation”.”

See: http://www.guardian.co.uk/attackonlondon/comment/story/0,,1544683,00.html

Chakrabarti has subsequently referred back to the PM’s phrase in a series of television and radio debates as well as a lecture on “Terrorism and the Rule of Law” on 11^th May 2006. The transcript may be found at: http://www.iccl.ie/DB_Data/publications/Shami_speech.pdf   

International Perspective 

Judge Rosalyn Higgins (President of ICJ) lectured on ‘The ICJ, the United Nations system and the rule of law’. Transcript available at: http://www.lse.ac.uk/collections/LSEPublicLecturesAndEvents/pdf/20061113_Higgins.pdf 

“”Dicey famously identified three principles which together establish the rule of law: “(1) the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; (2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and (3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts.” How then, in this national model, should an “international law of rule” look? … “

Abstract from LSE website: http://www.lse.ac.uk/collections/law/news/news-firstpage.htm 

Written Constitution – A Serious Idea?

Lord Goldsmith QC the Attorney General in an interview with Sky News on October 8 2006 stated that the idea of a written constitution is “something we seriously ought to consider, there are strong reasons in principle why we ought to consider doing that”.

The relevant extract from the article is found below, but the full transcript is available at: http://www.skynewstranscripts.co.uk/transcript.asp?id=275 

The article by Matt Chorley in the Guardian also sets out the Attorney General’s position.http://politics.guardian.co.uk/homeaffairs/story/0,,1890995,00.html 

 “…Boulton:          If we are about standing up and values wouldn’t it therefore be a good idea to take a leaf out of David Cameron’s book and rather than rely on a kind of compromise historic statement coming out of Europe to actually have a U.K. bill of rights so that everyone would know exactly what their rights were and the new supreme court could interpret it? 

Goldsmith:      I think he is quite wrong about what he has said and I notice that he’s repeated again what he said before even though some of his own top colleagues described it as xenophobic legal nonsense.  There’s a different question about whether having now got effectively a bill of rights or the human rights act we ought to think about whether we should have a written constitution to deal with other aspects of that.  That I think is another debate and that’s not what he’s talking about -

Boulton:          - You sound as if you’re interested in that.;

Goldsmith:      I think that is something that we seriously ought to consider, there are strong reasons in principle why we ought to consider doing that.”

The A & Others litigation: Human Rights and Terrorism

Belmarsh CaseThe House of Lords decision in A & Ors v Secretary of State for the Home Department [2004] UKHL 56 demonstrates that the judiciary can act as an important constraint against executive excesses in safeguarding human rights. The Lords ruled that the indefinite detention without trial of non-nationals suspected of committing terrorist offences , who could not be deported, violated Article 5 of the European Convention on Human Rights (right to liberty). Article 14 (non-discrimination) was also violated because the measures were discriminatory as they only applied to non-nationals whereas a national could be just as likely to commit a terrorist offence. Thus the Lords quashed the 2001 Statutory Order, derogating from Article 5 of the Convention and declared Part IV of the Anti-Terrorism Crime and Security Act 2001 as incompatible with Articles 5 and 14 of the ECHR.See Liberty’s response to the ruling, detailing its significance and likely implications:-http://www.liberty-human-rights.org.uk/publications/pdfs/lag-lords-ruling-atcsa.pdfThe full judgment is available at:http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&oth-1.htmControl OrdersIn response to the A & Ors decision in December 2004, the Government introduced control orders under the Terrorism Bill 2005. The House of Lords defeated the Commons over the Bill.http://news.bbc.co.uk/1/hi/uk_politics/4338737.stmUnder the Prevention of Terrorism Bill 2005, control orders were introduced – replacing Part IV of the Anti-Terrorism Crime and Security Act 2001. There are 2 types – one requiring a derogation from Article 5 ECHR, one not.http://www.homeoffice.gov.uk/security/terrorism-and-the-law/prevention-of-terrorism/Challenges to control orders have been through the courts, culminating in the decision of the Court of Appeal in August 2006 where the original control orders were declared a “deprivation of liberty” contrary to Article 5.  The Home Secretary has been given leave to appeal to the House of Lords. http://www.guardian.co.uk/frontpage/story/0,,1835412,00.htmlFor an excellent chronological overview of events from A in [2004], the control order regime, the second decision in A in 2005 concerning the admissibility of evidence obtained through torture, as well as a snapshot of the US position see speech by Lord Phillips, Lord Chief Justice on 19 October 2006.http://www.judiciary.gov.uk/publications_media/speeches/2006/sp191006.htmThe Terrorism Act 2006Note that the controversy surrounding the Terrorism Act 2006 concerns 28-day (reduced from 90-days) and the offence of “glorification of terrorism”. (It does not deal with control orders)http://news.bbc.co.uk/1/hi/uk_politics/4715478.stm For an overview of how recent terrorism legislation fits within political debate see:http://politics.guardian.co.uk/attacks/ A & Ors v Home Secretary (No 2) [2005] UKHL 71.Prohibition on torture (Secretary of State argued that the admission of evidence obtained through torture at SIAC was not precluded by law). Question: Could SIAC, when hearing an appeal under ATCSA by a person detained under that Act, receive evidence “which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of the British authorities?  HL unamanimously held: They all noted that the prohibition of torture had long been established as a constitutional principle of this land. Held that torture evidence could not be admissible.  Lord Bingham: common law principles “compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice”   Standard of proof required before torture evidence excluded Majority: evidence should not be admitted if it is concluded on a balance of probabilities that it was obtained by torture.  Minority (went further) excluded evidence unless satisfied that there was no real risk that it had been obtained by torture. Lord Nicholls: the approach of the majority “would place on the detainee a burden of proof which, for reasons beyond his control, he can seldom discharge. In practice that would largely nullify the principle, vigorously supported on all sides, that courts will not admit evidence procured by torture”.