Covert derogations and judicial deference: redefining liberty and due process rights in counterterrorism law and beyond.

• Author: Fenwick, Helen

This article considers the use of control orders in the United Kingdom as an example of one of the most important legal aspects of the "war on terror": the development, alongside the criminal justice approach, of a pre-emptive system. It argues that in relation to such orders the executive has in effect sought to redefine key human rights in a manner that, at its most extreme, amounts to covert derogation, and that both Parliament and the judiciary have been to an extent drawn into and made complicit in this process. It highlights key aspects of this story in order to illustrate some broader points about the role of judges, Parliament, and the rule of law in response to such exceptional measures. It argues that the attempted minimization of the ambit of rights, the spreading use of secret evidence, and the damaging constitutional impact of excessive judicial deference, are of great significance beyond UK counterterrorism law and can help illuminate both the opportunities and the dangers in constitutional dialogue.

Cet article etudie les ordres de controle au Royaume-Uni a titre d'exemple d'un des aspects les plus importants de la reponse juridique a la > : le virage d'une justice penale reactive vers la creation d'un systeme preemptif parallele. Les auteurs soutiennent qu'en ce qui a trait a ces ordres, l'executif tente de redefinir les droits fondamentaux de la personne, ce qui, dans les situations extremes, revient a y deroger secretement. Ils ajoutent que tant le Parlement que l'appareil judiciaire ont d'une certaine maniere ete associes a ce processus et en sont devenus complices. L'essai souligne certains aspects de cet enjeu afin d'illustrer des questions plus larges sur le role des juges, du Parlement et de la primaute du droit face a de telles mesures exceptionnelles. Les auteurs soutiennent que cette tentative de reduire la portee des droits, l'utilisation croissante d'elements secrets de preuve ainsi que les effets dommageables de la deference judiciaire excessive sur la constitution ont une importance qui s'etend au-dela des lois anti-terroristes britanniques. Ces enjeux peuvent jeter de la lumiere tant sur les bienfaits que sur les dangers du dialogue constitutionnel.

Introduction I. Control Orders and the Legal Background II. Redeeming the Right to Liberty under Article 5 ECHR A. Imposing Article J ECHR Compliance in the Courts? B. The Stance ofdie European Court of Human Rights on "Deprivation of Liberty" C. Domestic Failure to Uphold Liberty? D. Conclusions: The Wider Significance of Adopting a Narrow Conception of "Deprivation of Liberty" III. Due Process and Article 6 ECHR A. Introduction: The "Inherently One-Sided Procedure" B. The Spread of Secret Evidence in Proceedings in the United Kingdom and Beyond C. Risk Assessment, Intelligence, and Evidence D. Control Orders, Due Process, and the Domestic Judicial Response: Division and Partial Accommodation E. Intervention by the European Court of Human Rights: Principle Restored F. Conclusions on die Pre-A v. United Kingdom Case Law on Article 6: Covert Derogations and the Wider Constitutional Picture IV. Possible Responses: Probing National Security Claims to Allow Greater Disclosure and Prosecution Conclusion Postscript Introduction

In contrast to the approach of the Bush administration in the United States, which adopted a military, extra-legal approach to certain aspects of its counterterror policy--including imprisonment in legal "black holes" at Guantanamo and other "ghost" prisons (1)--the United Kingdom has continued to ensure that even the extraordinary counterterror measures of detention without trial and subjection to control orders are clothed in legal authority and apparent human rights compliance. (2) The adoption of such exceptional measures in the United States and the United Kingdom represents a partial shift from a criminal justice response to the creation of a "pre-emptive" (3) system operating alongside the criminal justice approach--measures are taken against individuals based upon an assessment of the risk they pose, in terms of their likely future conduct. These measures form part of what Lucia Zedner has termed "an emerging genre of preventive justice" (4) driven by the fear of an extraordinarily heightened risk from terrorism and allowing for anticipatory action against perceived threats, with the aim of preventing terrorist activity before it occurs. We thus see a partial shift from a post-crime system, based on criminal offences, proof, and punishment, to a pre-crime society, based on risk assessment, suspicion, and pre-emption. (5) Examples in the anti-terror context include: the establishment of the detention facility at Guantanamo Bay; the powers to detain foreign terrorist suspects indefinitely without conviction, introduced in the United Kingdom by part IV of the Antiterrorism Crime and Security Act 2001 (ACTSA); (6) "Control Orders" under the Prevention of Terrorism Act 2005 (PTA), (7) also introduced in Australia into division 104 of their Criminal Code; (8) powers of detention for investigatory (9) and preventive purposes (10) in Australia; the power to detain noncitizens in Canada on grounds of risk to national security, (11) which was recently declared unconstitutional by the Supreme Court of Canada; (12) and the use of racial profiling in stop-and-search under anti-terrorism powers in the United Kingdom and the United States. (13) But of course the use of pre-emptive measures tends to create a greater likelihood that human rights, especially due process rights, will be violated, placing governments in the position of seeking to evade that possibility. Therefore they must either: (i) assert that human rights laws are inapplicable (draining law from the "war on terror", the stance taken in some respects by the Bush administration); (14) (ii) derogate from their human rights obligations; or (iii) find a way of diluting the standards upheld by the rights.

The detention without trial of foreign nationals under part IV of the ACTSA was the first manifestation of the pre-emptive approach in UK counterterrorism law--it used the second strategy of derogation: suspending the right to liberty under article 5 of the European Convention on Human Rights (ECHR). (15) The derogation was challenged under the Human Rights Act (HRA), (16) the act giving domestic effect to the ECHR, and the derogation--and therefore part IV itself--was found to be incompatible with the ECHR by the House of Lords in the well-known Belmarsh decision. (17) As a result, the British government abandoned part TV, and switched strategies. It withdrew its derogation from article 5 ECHR, and introduced "Control Orders" under the PTA. (18)

The withdrawal of the derogation from the right to liberty amounted to a public affirmation by the British government of its intention to protect British citizens from terrorism while remaining within the normal human rights standards laid down by the ECHR, as the Council of Europe had recommended. (19) However, a key argument of this paper is that the Labour government's policy since then (and now that of the current government) amounted to a switch to the third strategy outlined above: to use the threat of terrorism not as a reason for openly derogating from human rights standards, but instead to persuade Parliament and the judiciary into acquiescing in the creation of minimal interpretations of certain ECHR rights that stripped them of much of their content. This tactic had the effect of, at worst, seeking to create effective covert derogations and, at best, of redefining the rights so that they emerged only in a diluted form in practice. The government adopted two contrasting tactics to that end. Those parliamentarians without the requisite legal expertise were simply assured that the measures were compliant with the ECHR rights. In contrast, with respect to those Members of Parliament with greater awareness of the requirements of the ECHR and, of course, to the courts themselves, the tactic was to argue that this partial minimization of liberty and due process rights was necessary given the exceptional threat posed by terrorism and the pressing need to protect public safety and national security. At times this was achieved simply by exploiting any ambiguities in the interpretation of ECHR rights so as to produce the most executive-friendly reading of them possible. In general, such tactics become possible due to the febrile atmosphere typically generated by government claims that we are in a semi-permanent state of emergency (20) in which the risk of terror attacks is discursively amplified by both government and media, (21) and the human rights of suspects are easily portrayed, in Loader's vivid phrase, as a "gamble with people's safety". (22) Hence, legislators may be pressured into passing anti-terrorism laws in haste with much too little scrutiny and amendment (23)--as happened in the United Kingdom in relation to the introduction of the two key pre-emptive detention measures post-9/11. (24) In turn, this means that judicial review of the exercise of such powers becomes, as Ramraj put it, "an institutional safeguard against policy-making motivated primarily by public fear." (25)

But precisely when it is most needed, the judicial safeguard also comes under intense pressure. As this paper shows, the UK government sought to persuade the judges to acquiesce in this process of diluting rights, partly by constant invocation of the need for particular judicial deference in the area of national security. At times, indeed, it has sought to reduce the judicial role to one of accepting the government's assessment not only of the extent of the threat from terrorism, but of the proportionality of the measures needed to combat it. In Belmarsh, for example, a principal submission of the government was that:

As it was for Parliament and the executive to assess the threat facing the nation, so it was for those...