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

For a useful account tracing the approach of the courts to judicial review of prerogative powers see speech by Lord Justice Richards “The International Dimension of Judicial Review” of 7 June 2006.  Richards LJ discusses the cases we discussed in tutorial including CCSU; CND; R(Abbasi); and R(Al-Jeddah).  

Full transcript of speech available at: http://www.judiciary.gov.uk/publications_media/speeches/2006/sp070606.htm

Richards LJ states: 

“It was long considered that, whereas there could be judicial control over the exercise of statutory powers, prerogative powers were beyond the scope of judicial review.   

That view met its end in a case in 1984, arising out of a battle between the government and the civil service unions over a decision to change the terms and conditions of staff at GCHQ without prior consultation with the unions:  CCSU v Minister for Civil Service [1985] 1 AC 374.  The House of Lords held that it is not the source but the subject-matter of a power that determines whether it is susceptible to judicial review.  Thus the fact that a minister is exercising a prerogative power rather than a statutory power is not itself a decisive factor.  Whether the courts can control the exercise of the power depends on the particular subject-matter. 

That principle is one of great importance, as we shall see, but their Lordships also made clear in their judgments that, among the powers considered not to be susceptible to judicial review by reason of their subject-matter were prerogative powers such as those relating to the conduct of foreign affairs, the making of treaties or the defence of the realm.  Areas of high policy of this kind were regarded as non-justiciable.”  CCSU opened the door for a greater degree of judicial scrutiny over the exercise of prerogative powers, however, the door remains closed with respect to those non-justiciable questions: Examples:British Airways Board v Laker Airways Ltd [1984] 1 QB 142: “accordingly it would be strange if in this field [of foreign policy] the courts and the executive spoke with different voices and they should not do so ….” 

R(CND) v Prime Minister & Others [2002] EWHC 2777: High Court held that: (1) courts had no jurisdiction to decide on matters of international treaty law which had not been incorporated into domestic law via legislation – hence they refused to give an advisory opinion on whether it would be lawful for the HMG to take military action in Iraq without a second UN Security Council Resolution (2)  a court ruling would be damaging to international relations. 

R (Jones and Others) [2006] UKHL 16: House of Lords held that no crime of aggression existed in domestic law and a consideration of such a crime in the courts would entail a review of the “transactions between sovereign nations on the plane of international law”. 

R(Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76 Court of Appeal held: (1) no enforceable duty to make representations/ diplomatic negotiations etc to intervene to protect a British citizen suffering at the hands of a foreign state (2) but a legitimate expectation that the Foreign Secretary would act on statements of policy – but these only limited to certain circumstances where the HMG would “consider making representations”. 

R (Al-Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWHC 972: by reason of nationality the state had no standing to make a formal claim on his behalf –  distinguished from Abbasi because a non-British national. Irrespective of this – these decisions are located within the context of foreign policy and therefore an area where the courts are cautious to tread.  R(Al-Jedda) v Secretary of State for Defence [2006] EWCA Civ 327: UN Security Council Resolution 1546 authorised detention of dual British-Iraqi national contrary to requirements of Article 5 ECHR (arbitrary detention) – the former “trumped” the latter such that Convention rights could not be relied on for the time being when qualified by a UNSCR. 

R (Bancoult) v Secretary of State for Foreign Commonwealth Affairs  [2006] : Orders in Council may be subject to judicial review under the modern law.

[NB – Richards LJ also includes cases on extraterritorial jurisdiction under Article 1 ECHR regarding the jurisdiction of domestic courts to review, those acts carried out by
UK authorities on foreign soil, for their compatibility with the Convention rights. Eg see R(B); Bankovic; R(Al-Skeini); and R(Abbasi) and R(Al-Jeddah) discuss this point too.]

On 12 December 2006, the Court of Appeal gave judgment in R (on the application of Gentle & Clarke) v. the Prime Minister, the Secretary of State for Defence and the Attorney General [2006] EWCA Civ 1690 concerning judicial review of the refusal by the government to hold an independent inquiry into the circumstances which led to the invasion of Iraq.  The Court held at [84] that “Such an inquiry would inevitably involve, not only questions of international law, but also questions of policy, which are essentially matters for the executive and not the courts”.

Constitutional Reform

The judicial role of the Lord Chancellor has been transferred to the Lord Chief Justice. This strengthens the separation of powers in the UK by emphasising the independence of the judiciary from the executive arm.  For more on this see:- 

 http://www.dca.gov.uk/constitution/reform/faqs.htm

US Position – fetters on executive excess

The separation of powers in the US is much celebrated and each arm of government is held to account via a complex system of checks and balances. President Bush has been criticised for increasing Presidential power which critics call an “imperial presidency”. Recent developments, however, have shown that there are still important fetters on this power.The Supreme Court has on a number of occasions declared the indefinite detention of “enemy combatants” in Guantanemo Bay as “unconstitutional” and has also declared that the military tribunals for the detainees “raised separation of powers concerns of the highest order”.

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/06/30/wus130.xmlhttp://www.guardian.co.uk/guantanamo/story/0,,1809111,00.html

Professor Gearty states the war on terror has resulted in executive excess in the US but is careful to point out that the same has been true in the UK. He argues that decisions such as Rasul, Al-Odah and Hamdi demonstrate well that executive excess can be reigned in by the judiciary.

http://www.guardian.co.uk/guantanamo/story/0,13743,1254930,00.html

See also the section in this blog on the Belmarsh decision - A & Others v. Secretary of State for the Home Department  [2004] UKHL 56 .

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