SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 2006: “TERRORISM AND HUMAN RIGHTS”

• Published date: 01 December 2006
• Date: 01 December 2006
• Citation: (2006) 18 SAcLJ 293
• Author: The Right Honourable The Lord PHILLIPS of Worth Matravers LLB (Cambridge), LLD (Exeter) (Birmingham) (London); Barrister (Middle Temple, UK); Lord Chief Justice of England and Wales

1 Singapore was the first member of the Commonwealth in which I was instructed to appear after taking silk in 1978. I cannot tell you what a wonderful experience it was to leave a dreary English winter and be welcomed to a country that combined state-of-the-art modern architecture and luxuriant tropical vegetation, and where everything, and everyone, seemed to work. On the second occasion that I came here I did not make the mistake of leaving my wife behind and she has never forgotten the wonder of her first visit. And so I did not need to be asked twice to come here, with Christylle, to give the 13th of the Academy’s annual lectures. The invitation was all the more welcome because I was aware of the prestige that attaches to these lectures, and of the distinction of the lecturers who have gone before me.

2 And as a new Chief Justice of England and Wales, it has been a particular pleasure to renew my acquaintance with your new Chief Justice, whom I had greatly enjoyed meeting in Kuala Lumpur, when he was Attorney-General, and to meet today the other members of the Bench of the Supreme Court and their law clerks.

3 Two years ago there was, here in Singapore, a major international research symposium attended by leading legal academics from around the world. They had come together to examine and compare anti-terrorism laws and policies in many of the major jurisdictions, including the UK. Victor V Ramraj and Michael Hor of your National University of Singapore made major contributions and subsequently joined Kent Roach of the University of Toronto in editing the papers that had been delivered into a valuable work, Global Anti-Terrorism Law and Policy,1 with a postscript bringing the subject up to date, as at the middle of last year.

4 In this lecture I propose to concentrate on the complex history of the legislation and judicial reaction to that legislation in my own jurisdiction — a story in which I have inevitably played a part — and there have been quite a few developments in that story over the past year. These, however, pale into insignificance when compared to the importance of recent decisions of the US Supreme Court. The US and the UK have seen themselves as partners in the fight against global terrorism, but partners who have differed in relation to the legal constraints on the methods used in that fight. In the US the constraint is their Constitution. In the UK the constraint is the European Convention on Human Rights. While I shall concentrate on the UK I shall be looking at developments that we have been following with great interest on the far side of the Atlantic.

I. The United Kingdom

5 Terrorism is not readily defined, and whether activities amount to terrorism can depend upon your point of view. One man’s terrorist can be another man’s freedom fighter.

6 As an ex-colonial power, the UK has been responsible for detaining without trial as terrorist suspects, in India, in Kenya, in Cyprus, by way of example, men who have gone on to be their country’s leaders. There are still around the world minorities, striving for independence, who resort to measures that are condemned by the regimes in power as terrorist acts.

7 But we are today facing a new kind of terrorism — terrorism inspired by an ideology that treats as enemies those whose way of life is espoused by the vast majority in the democracies against whom the terrorism is aimed; terrorism whose motivation is not a desire for independence, but simply ideological hatred. And the ideology is so strong that some at least of those who share it are prepared to destroy themselves in order the more effectively to destroy others. The suicide bomber is a new phenomenon and one against whom the theory that punishment deters crime is manifestly inapplicable.

8 In a time of national emergency the reaction of those running a country, or making a country’s laws, is to detain without trial those suspected of being at risk of committing subversive activities.

9 Such a course tends to be acceptable to the vast majority of the inhabitants of the country in question, who are not at risk of being locked

up. Dicey, in his great work, Introduction to the Study of the Law of the Constitution, remarked: “Under the complex conditions of modern life no government can in times of disorder, or of war, keep the peace at home, or perform its duties towards foreign powers, without occasional use of arbitrary authority”.2

10 This reaction was reflected by the approach of the majority of the House of Lords to the interpretation of regulations introduced under wartime legislation in both the First and the Second World Wars which permitted detention without trial.

11 The most famous, or notorious, decision was that in Liversidge v Anderson,3 where the House, in the face of a notable dissent by Lord Atkin, held that the Home Secretary was not required to give any reason for locking up a citizen pursuant to a regulation which gave him the power to do so if he had “reasonable cause to believe” him “to be … of hostile associations … and that by reason thereof it was necessary to exercise control over him”.4

12 As we shall see, it is no longer so easy for the legislature of the UK to confer such powers on the Secretary of State. The difficulty lies in the incorporation in our domestic law of the European Convention on Human Rights and the expansionist approach to the interpretation of that Convention of the European Court at Strasbourg. At the end of the Second World War two Conventions were concluded, largely by way of reaction to that War. The first dealt with the manner in which a State should treat those within its boundaries. This was the 1950 European Convention on Human Rights (“The Human Rights Convention”).5

13 The second placed restrictions on the circumstances in which a State could deport aliens who had sought refuge within its boundaries. This was the 1951 United Nations Refugee Convention.6 This Convention

required signatories to grant asylum to those who had fled persecution in their own countries. There was, however, an exception to this obligation. If an asylum seeker posed a threat to the security of the country in which he was seeking asylum, that country was entitled to deport him even if he faced the risk of persecution in his own country.

14 Although most of the signatories of the Human Rights Convention were also signatories to the Refugee Convention, the Strasbourg Court has held that the former Convention precluded repatriation of someone if he faced a serious risk of torture or inhumane or degrading treatment in his own country, even though he posed a threat to the security of the country in which he had sought refuge.

15 Article 3 of the Human Rights Convention places an absolute bar on subjecting someone to torture or inhuman or degrading treatment. In Soering v United Kingdom7 the Strasbourg Court held that Art 3 would be infringed if a person was extradited to a country where there were substantial grounds for believing that he would suffer such treatment. In that case, however, the court stressed that inherent in the Convention was the search for a “fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights”.8

16 The UK has always contended that this balance was not observed in the sequel to Soering, namely the case of Chahal v United Kingdom.9 In that case the UK sought to deport to India Mr Chahal, a Sikh separatist, who had been refused asylum, on the ground that his presence was not conducive to the public good for reasons of national security.

17 He resisted deportation on the ground that he feared that he would be tortured if he were returned to India. The UK government argued before the Strasbourg Court that the Secretary of State was entitled to balance Chahal’s interest as a refugee against the risk he posed to national security if not deported. The Strasbourg Court rejected this argument. It held that “whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected

to treatment contrary to Article 3 if removed to another State”10 it was unlawful to remove him. The activities of that individual, however undesirable or dangerous, could not be a material consideration.

18 This decision has far-reaching implications and, in a case that is presently before the Strasbourg Court, the UK has intervened in an attempt to get the Strasbourg Court to have second thoughts about Chahal. Let me explain the implications of Chahal.

19 Article 5 of the Human Rights Convention provides that no one shall be deprived of his liberty, save in certain specified circumstances, the most material being lawful detention after conviction by a competent court. Another is lawful detention of a person against whom action is being taken with a view to extradition or deportation. Where, however, deportation is not possible because of the impact of Art 3, there is no right to detain a suspected terrorist without trial. Executive detention is not an option. Thus it follows from the decision in Chahal that the Convention prevents you from sending the alien who is a threat to your national security back to his own country, but does not permit you to detain him, if he insists on remaining in your country against your will.

20 The Strasbourg Court in Chahal struck a further blow to the UK’s ability to take executive action in the interests of national security.

21 The Secretary of State had ordered that Chahal should be deported on the ground that his continued presence in the UK was not conducive to the public good for reasons of national security. When Chahal challenged that order by judicial review, the English court held that issues of national security were for the Secretary of State and could not be subjected to review by the court. The Strasbourg Court held that this was not good...