Infringement of Human Rights in a Democratic Society - Assignment Example

Infringement of Human Rights in a Democratic Society Law empowers as well as restricts the actions of officials. Although the law is an indispensable requirement for the just management of intelligence, it is not sufficient. In reality, law subsists mainly to permit infringement on human rights, despite establishing procedures for obtaining appropriate authorisation.1 The UK Government has breached Human Rights law on several occasions, under the guise of counter terrorism measures and public policy. The House of Lords decision in the Belmarsh Detainees Case, served to promote the human rights of the detainees. The UK government was dismayed at this development, as it had embarked upon a path that sought to curtail the human rights of suspected terrorists. The government’s actions were seen to be incompatible with the Human Rights Act, and this was conceded by the authorities, in January 2005.2 In the Belmarsh case,3 nine foreigners, suspected of being terrorists, were detained without charge, under the provisions of the Anti – Terrorism Act;4 subsequent to their certification by the Home Secretary.5 The attempt by the UK government to derogate from ECHR was challenged by these detainees.6 Their Lordships examined whether the derogation was legitimate; and whether the statutory provisions relied upon by the government in detaining these individuals were incompatible with the ECHR. In a majority decision, the Law Lords ruled that the provisions of the Anti – Terrorism Act were incompatible with the ECHR.7 This was deemed to be so, as the detention was disproportionate and discriminatory to the perceived threat to the UK and its citizens. As a compromise, the UK government declared that it would enact legislation that would obviate the necessity for indefinitely detaining suspected terrorists. These initiatives were thrust upon the populace, under the garb of the Prevention of Terrorism Act 2005. The avowed objective of the government, with respect to non – nationals was to either detain them indefinitely or to deport them.8 The new legislation was aimed at circumventing human rights jurisprudence. Subsequent to the Belmarsh debacle, the government introduced a control orders mechanism that was applicable to both UK nationals and non – nationals.9 As a consequence, the government arrogated to itself, sweeping powers, to the detriment of human rights and fundamental freedoms. There was a public outcry against these measures to muzzle fundamental freedoms and human rights. Specifically, the backbench MPs of Labour in the House of Commons came out in open rebellion. This move was supported by the members of the Upper House, and the Labour government was compelled to beat a hasty retreat.10 As a result, the government made several amendments to its controversial control orders legislation. For instance, this piece of legislation was to be subjected to review after the passage of a year, and the authorisation of a judge was made mandatory for such orders, save in the case of temporary emergency orders.11 The Tony Blair government repeatedly fell foul of the judiciary, on account of its proclivity to disregard human rights, in the aftermath of the terrorist attacks on the nation. Thus, in Secretary of State for the Home Department v. JJ and Others, the House of Lords ruled that the government, by imposing control orders on 6 individuals, had committed an act of deprivation of liberty that was in violation of article 5 of the ECHR.12 The UK had incorporated the provisions of article 3 of the ECHR into its Human Rights Act.13 This provision of the ECHR extends to instances, where a Contracting State exposes a person to the risks prohibited in this provision, in locales that are external to the jurisdiction of that Contracting State. The Convention Against Torture, disallows the deportation of an individual, by a Contracting State to a country, where that person is at risk of being tortured.14 The UK has violated the provisions of the ECHR from quite some time, and this predates the risks posed to national security by the Al Qaueda and other Islamic terrorists. In Chahal v United Kingdom, a Sikh who had been active in the separatist movement in India for establishing an independent nation, was sought to be extradited by the Indian government.15 Accordingly, the UK government detained this individual and made arrangements for his deportation to India. The European Court for Human Rights, held that the UK was precluded by article 3 of the ECHR from deporting Chahal to India, where there was an obvious risk of his being subjected to torture. It also held that the UK government had infringed article 5(4) of the Convention, which provides for the right to judicial review of the lawfulness of the detention.16 With this decision, the ECtHR impressed upon the UK government that it could not employ the pretext of national security, in order to circumvent the extraterritorial effect of the Convention provisions. Consequently, derogation from article 3 of the Convention is not permitted, even if there is the possibility of danger to the life of the nation. The UK remained undeterred by such setbacks, and in some instances, filed cases with the ECtHR, it intervened and called for a reversal of the decision in Chahal, so that suspected terrorists could be extradited. For instance, it intervened in Mohammed Ramzy v Netherlands17, and Saadi v Italy.18 Both these cases involved the deportation of individuals who could reasonably be suspected of being international terrorists. However, the ECtHR ruled that as there was a real danger of their being tortured, on being extradited to their native country, article 3 of the Convention would be clearly violated, if they were to be deported. Hence, it disallowed their deportation. The UK had made interventions, in the hope that the decision in Chahal would be overturned, and that it could legitimately deport the numerous Islamic terrorists that were foraying into the nation, with mala fide intent. UK laws relating to terrorism are of a sweeping nature. For example, the acts of individuals that damage property or harm others, with the intention of furthering some religious, ideological or political cause, are deemed to be acts of terrorism, even if such acts do not take place on British soil. Such acts attract the provisions of the criminal law.19 In addition, the Terrorist Act has made it a crime to incite terrorism, and such incitement need not be restricted to the UK. Continuing in a similar vein, the Terrorism Act of 2006 makes it a crime to encourage terrorism, by any individual. Such an individual need not be a UK citizen. In addition, the terrorist act can take place in any country and the encouragement can transpire at any place. Similarly, it is a crime to be associated with terrorism training, attending a terrorist training camp, or to be in possession of certain prohibited materials. Thus, a person who commits a terrorist act in some other country can be apprehended and subjected to anti – terrorism laws, on entering the territory of the UK. A regime based on the Human Rights Act has come into force in the UK. The effects of this system extend beyond the territory of the UK, and are applicable to every individual in the world. The protections provided in the HRA, are applicable to events taking place anywhere in the world, and are not limited to those that transpire in UK territory. The Human Rights Act 1998 engendered constitutional changes to the UK law. According to Article 6 ECHR a suspect has the right to remain silent in a police station. This was the ruling in Murray v UK. However, this right is not absolute and as had been held in Condron v UK, the presiding judge can instruct a jury to draw conclusions from the silence of the accused, during a public interview.20 On occasion, events taking place in some foreign locale come under the purview of the UK authorities. This is dependent on the type of authority that the UK has over that territory. From the perspective of international law, initiatives by the UK, regarding events that take place outside its territory, where the interests of its populace were not at stake, would be patently inequitable.21 Moreover, such conduct would be in breach of international law. There are several cases that have challenged the legality of the HRA and its consistency with the ECHR. Among these, the landmark cases include Malone v Metropolitan Police Commissioner 22 and R v Secretary of State for the Home Department, ex parte Brind. 23 In these cases, the courts refused to declare that the Crown had unlawfully breached the rights provided by the ECHR or the common law. These cases demonstrate the absence of protection for rights before the HRA. Moreover, these cases also establish the absence of judicial remedies, in the context of infringements of rights. They also demonstrated that the courts did not possess the authority to declare an Act of Parliament to be unconstitutional.24 The Courts had refused to declare that the Crown had violated fundamental rights. In Malone, the plaintiff sought a declaration from the court that the police had tapped his telephone without any statutory authorisation. It was his contention that the police were in breach of his rights under the common law and the ECHR. The Court refused to issue the declaration sought by the plaintiff. The judge stated that the court would issue declarations only in respect of enforceable rights and liabilities.25 No declaration would be forthcoming from the courts, in respect of moral, social or political rights or liabilities. In the absence of such legal standing and enforceability, the rights provided by the ECHR were not legally valid in the UK and therefore not enforceable. This was because the UK had not incorporated the ECHR into its national legislation. The judge reasoned that the plaintiff did not have any legally enforceable rights of property, privacy, or confidentiality under the common law, which would be violated by the wiretapping.26 Thus, he had no rights, what so ever, that would promote the declaration that the phone tapping was unlawful. In this case, the wiretapping was ordered by the executive, in the absence of statutory or common law authority. As there were no specific legislative prohibitions against such wiretapping, it was not held to be illegal. This case failed to establish whether a declaration would be unwarranted or impossible as a remedy, in instances wherein an act of Parliament, had itself breached a fundamental right provided by the common law.27 Instead, it established that the declaratory power of the courts were restricted to making declarations on matters that were justiciable in courts. The Brind case consisted of a request for a declaration that the Crown had breached the fundamental rights of an individual. The request was preferred, solely under the unincorporated Convention. This case involved only rights under the ECHR and not any constitutional rights. The Home Secretary had been empowered to instruct the BBC and Independent Broadcasting Authority to refrain from broadcasting speeches by persons who represented proscribed terrorist organisations. The claimants argued that the prohibitory orders issued by the home secretary were ultra vires, and that the home secretary was under a legal duty to comply with the provision of section 10 of the ECHR.28 The House of Lords did not countenance this contention. Lord Donaldson conceded that there were similarities between the rights under common law and the ECHR. However, in the case under consideration, the effect of the Convention rights was to be assessed. This case was seized with the status of the Convention rights and failed to address the perceived divergence between the common law rights and the authorising statute.29 The House of Lords held that the ECHR was not enforceable, as it had not been incorporated into the domestic law. In accordance, with the above discussion, it can be concluded that the state enacts legislation that circumvents human rights. One such initiative is the introduction of anti terrorism measures and policies. To a certain extent, human rights tend to curtail the excesses committed by the state. However, the state can suspend human rights by enacting suitable legislation. The UK government, has frequently, changed its laws, in its battle against terrorism. Although human rights constitute a control mechanism, in respect of the excesses of the state; in reality, the UK has been compelled to breach human rights, in order to deal effectively, with terrorism. Bibliography A and others v Secretary of State for the Home Department [2004] UKHL 56 Anti-terrorism, Crime and Security Act 2001 Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 Chahal v The UK [1996] (22414/93) ECtHR 54 David Jenkins, ‘Common law declarations of unconstitutionality’, 7(2) International Journal of Constitutional Law (2009) 210 David McKeever ‘The Human Rights Act and anti-terrorism in the UK: one great leap forward by Parliament, but are the courts able to slow the steady retreat that has followed?’ (2010) Public Law 110 Dominic McGoldrick, ‘Security Detention in Practice: Security Detention-United Kingdom Practice’ (2009) 40 Case Western Reserve Journal of International Law 510 ‘European Court of Human Rights Chahal v The United Kingdom’ (1997) 9 International Journal of Refugee Law 86 Great Britain: Parliament: House of Commons: Foreign Affairs Committee, House of Commons, Human rights annual report 2008: seventh report of session 2008-09, report, together with formal minutes, oral and written evidence (The Stationery Office, 2009) Human Rights Act 1998 Malone v Metropolitan Police Commissioner (N0. 2) (1979) 2 All ER 620 Mohammed Ramzy v Netherlands [2005] 25424/05 ECtHR R v Secretary of State for Home Department ex parte Brind (1991) 1 AC 696 Secretary of State for the Home Department v JJ and Others [2007] UKHL 45 Saadi v Italy [2008]ECtHR The Terrorism Act 2000 Thomas Poole, ‘Harnessing the Power of the Past? Lord Hoffmann and the Belmarsh Detainees Case’ (2005) 32 Journal of Law and Society 534 Ursula Smart, Law for Criminologists: A Practical Guide (Sage Publications Ltd, 2008) Read More