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Lord Bingham: the rule of law or bending the rule of law?

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The death of Lord Bingham, the former senior Law Lord (senior appeal judge in what is now the UK Supreme Court), silences a significant voice on the issue of how far incursions into human rights by the government can be justified by the “war on terror”.

Lord Bingham’s was a committed but moderate view which led him, perhaps unfortunately, to a sense that the judiciary must in a democracy with a sovereign parliament, craft a compromise on human rights with the political sphere, the legislature and the executive. His two judgments in the linked cases commonly known as “A v Home Secretary”, one on torture and one on detention without trial, bear witness to such a disturbing compromise. The torture case allows the possibility of people being detained without trial on torture evidence. The detention case judgment balked at simply declaring detention without trial wrong and refused to deal with whether there truly was an emergency in post-9/11 Britain sufficient to justify such detention.

While the cases were based on classic, text book subject matter regarding the rule of law, the use of torture and detention without trial, and Bingham’s rulings did not favour the government, his judgments nevertheless left open wide areas within which the executive may act apparently contrary to those principles.

Take the torture case, (reported as A and others v Secretary of State for the Home Department (No 2) [2005] UKHL 71) which hinged on the use that could be put to torture evidence gathered abroad without the connivance of British authorities. Put briefly, Bingham said that such evidence could not be admitted in a court of law, including in the tribunal set up to hear appeals against arrest and detention of foreign terror suspects, the Special Immigration Appeals Commission (SIAC). However, the authorities could act on such evidence if they came across it – they could arrest individuals on the basis of information got by torture. He says (at paragraph 47):

“I am prepared to accept … that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6.”

Article 3 relates to torture, Articles 5 and 6 to detention and trial. Lord Bingham is saying security services are wholly free to act upon third-party foreign torture evidence to arrest and detain. This might seem reasonable if the security services could make their arrests, question the detainees and find admissible evidence for a trial. Unfortunately several appellants in the case were being held without trial (subject to an indefinitely pending deportation). On the face of it, the government lost the case since it wished to reserve the right to offer such evidence to courts. But Bingham’s subtle distinction not only did not help the appellants but it opened a wide area of operation for the security services to flout human rights. A government lawyer who was asked privately who won in this case was able to say without hesitation: “We did.” After all Lord Bingham even went so far as to suggest security services can act on evidence extracted directly by UK personnel using torture, albeit there would be an Article 3 case regarding the torture itself.

The appeal in the detention case (with the same appellants, reported as A and others v Secretary of State for the Home Department [2004] UKHL 56) was based, in part, on the definition of a public emergency. The attorney general submitted that it was up to the government, “as the guardian of its own people’s safety” to decide whether there was such an emergency – a “threat to the life of the nation” – under the Anti-terrorism, Crime and Security Act 2001. If there was such a threat, the government could derogate from Article 5(1) of the European Convention on Human Rights on “liberty and security of person” to detain suspects preparatory to deportation.

This is a classic “rule of law” battleground going back certainly to the 17th century in England, and our histories generally tell us that freedom ultimately triumphed over arbitrary power.

‘The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational’ – Bingham on judicial deference

Bingham, however, cited an early European Court of Human Rights case which upheld the use of “special powers” to detain a former IRA man in less dangerous circumstances than after the 9/11 terrorist attacks in America,  (Lawless v Ireland (No 3) (1961). Bingham’s view was that “the government [post-9/11] could scarcely be faulted for reaching that conclusion [that there was a threat] in the much more dangerous situation which arose after 11 September”. The home secretary, his colleagues and parliament “were called on to exercise a pre-eminently political judgment” regarding the terrorist risk.

Bingham was content that such a judgment should indeed be within the arena of politics and hence be accepted by the court – even though other threatened European countries sought no such derogations – and even though the derogation had been made in order to allow the detentions rather than because of any specific event or culmination of events constituting a “public emergency”. He had been here before in the “gays in the military” case. Then he laid out how far his “judicial deference” to the executive on defence and security matters went:

“The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational … Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test.” (R v Ministry of Defence ex parte Smith)

Judges did not have the experience, never mind the right, to challenge ministers’ views on threats to security, whether from gays in arms or putative terrorists.

Nevertheless, in the detention case, Bingham’s concern for a more individualist notion of equality before the law allowed him instead to uphold the appellants’ challenge to the government on discrimination grounds. The appellants had been detained prior to deportation – but deportation could not go ahead for human rights reasons (risk of death or torture in their home countries). They were therefore held in indefinite detention.

This, Bingham concluded, constituted unlawful, unequal treatment contrary to Article 14 of the ECHR (from which the 2001 Act did not derogate): “The appellants were treated differently because of their nationality or immigration status.” Other non-UK nationals could be removed from the country and UK nationals could not be removed. Thus the appellants’ immigration limbo led to their detentions being unlawful on the basis of discrimination, not on the basis of whether indefinite detention was unlawful per se or whether Britain was right to claim an emergency to justify derogation when other countries in Europe, also subject to al-Qa’ida terrorism, had not.

Bingham’s judgments in the torture and detention cases can be seen as pragmatist rather than progressive. In the detention case he felt unable to challenge the government’s view of whether there was a “threat to the life of the nation” whereas Lord Hoffmann, sitting alongside him, explicitly did so in his judgment. Indeed Hoffmann implied that the logic of Bingham’s approach was that if a non-discriminatory way could have been found to detain the appellants, then the law would not have assisted them. As he put it: “… the power of detention is at present confined to foreigners, and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well”. The Prevention of Terrorism Act 2005, in its use of control orders, indeed, does in effect do just that.

The torture case amounts to saying that the courts could keep clean hands by refusing to admit torture evidence in trials but meanwhile the executive could continue its dirty work by making use of such evidence.

The danger of presenting Lord Bingham as a heroic figure who stood out against a government placing human rights under threat is less that his achievements will be exaggerated (for they are considerable) but rather that we, as a society, will consider that, thanks to a system that allows for such independent-minded judges, we are further along the road of embedding human rights into our core values than is truly the case. It is certainly a time to mourn the loss of a great legal mind and a powerful advocate of human rights, but also to mourn the fact that even such a far-seeing and clear-thinking judge was forced to compromise on human rights at a time when they are most needed – and potentially most under threat.

Twitter: alrich0660

Note: Bingham’s 2006 lecture, the basis of his book, The Rule of Law, is here (pdf)
A critique of Bingham’s Rule of law is here:
Bingham’s rule of law: outdated, utopian – and desperately needed

 Some of these issues are considered by Francis FitzGibbon here in light of the new Ian Cobain book Cruel Britannia

Those interested in the rule of law, Dicey and how it is misunderstood by modern politicians, see:
We need a judicial review into who’s killing JR; and
Cameron, Shoesmith and the Rule of Law
Also: Jeremy Wright’s rule of law: Justice shall not be sold – unless the price is right
On torture: Torture, a history of hypocrisy

Note, June 2018: The Parliamentary Intelligence and Security Committee has now revealed at least some of the complicity of of the British authorities in “third party” torture (or “mistreatment” as it calls waterboarding, white noise, stress positions, hooding, sleep deprivation and psychological trickery). The report is here.

About alrich

Journalist and blogger on legal and financial/economics issues

3 responses »

  1. Pingback: Bingham’s rule of law: outdated, utopian – and desperately needed now | Thinking legally

  2. Pingback: Torture: A history of hypocrisy | AL's LAW

  3. Pingback: Begum judgment: a dilemma for liberals | AL's LAW

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