Not Saussure

October 20, 2006

Lord Chief Justice’s answer to Dr Reid

Filed under: civil liberties, UK, War on Terror — notsaussure @ 3:23 pm

The BBC reports that

The Human Rights Act is a vital part of the fight against terrorism and should be strongly supported, the most senior judge in England and Wales has argued.

The lecture by Lord Phillips, the Lord Chief Justice, is now online. He provides a very useful history and explanation of how, and why, the Human Rights Act has been used to challenge, sometimes successfully and sometimes not, government anti-terrorism measures, much to the displeasure of Dr Reid , who thinks the judiciary ‘just don’t
get it,’ and of Mr Blair, who thinks ‘traditional civil liberty arguments are not so much wrong, as just made for another age.

Lord Phillips doesn’t agree. Despite what the press like to portray as ‘as strife between the judge and the executive in relation to dealing with terrorism,’ he explains

In England and Wales there is no such strife. Policy is for the executive, but their policy must respect the rule of law. It is not for the judge to attempt to influence policy. The judge’s job is simply to apply the laws that are made by a democratically elected Parliament.

He explains the significance of the European Court of Human Rights’ judgments in the cases of both Soering and, at some length, that of Chahal, of which Dr Reid complained about specifically in his speech to Demos, where he says the ruling means

that we ought to be prohibited from weighing the security of our millions of our own people if a suspected terrorists remains here when trying to deport

In point of fact, that’s a bit misleading. Chahal means there’s an absolute bar on deporting someone if he’s at risk of torture or execution back home. What you can do, though, is do what the Labour government did in 1997 (as the European Court apparently suggested in Chahal) and set up a Special Immigration Appeals Commission, or SIAC, who can detain him if they think it’s necessary.

The problem is, though, that SIAC has to operate under the rule of law, including the Human Rights Act, rather than the say-so of the Home Secretary of the day (who may, as we have recently seen, be signing orders having been woken up to sign them in the middle of the night, when he’s on the edge of a nervous breakdown). They need, for example, to be able to persuade SIAC that there’s good reason for the controls they want to impose. And, as Lord Phillips explains at length, Home Secretaries haven’t always been able to stay within their powers;

Policy is for the executive, but their policy must respect the rule of law. It is not for the judge to attempt to influence policy. The judge’s job is simply to apply the laws that are made by a democratically elected Parliament. I propose, however, to conclude this lecture by explaining why I am content that the laws which I have to apply when dealing with terrorism include the Human Rights Act.

In the United Kingdom the executive and the legislature have sought to deal with the threat of terrorism by imposing restraints on the freedom of those the executive suspects, but cannot prove, are involved in terrorism.

The Government recognises, however, that the extent to which it is free to do so is circumscribed by the Human Rights Convention and that Parliament has determined that it should be the duty of the courts to rule on whether or not legislation is compatible with the Convention and to strike down secondary legislation or executive action that infringes the Convention. I believe that this is a satisfactory state of affairs.

Furthermore, not only is it satisfactory; it’s a valuable part of the War on Terror:

Terrorism is spawned by ideology and the ultimate battle is one of ideology. John Reid, the Home Secretary, in a recent speech, said that we were living through what was “at heart an ideological struggle”; a struggle between democracies and “the core values of a free society” on the one hand and “those who would want to create a society which would deny all the basic individual rights we now take for granted” on the other.

At a lecture given at the London School of Economics earlier this year, Shami Chakrabarti, the Director of the human rights group Liberty, observed “the philosophy of post [Second World] war democrats is that of fundamental rights, freedoms and the rule of law. This is the legacy of Eleanor Roosevelt and …of Winston Churchill”… “If our values are truly fundamental and enduring, they have to be relevant whatever the level of threat”.

I share these sentiments, coming from two very different quarters.
Respect for human rights must, I suggest, be a key weapon in the ideological battle. Since the Second World War we in Britain have welcomed to the United Kingdom millions of immigrants from all corners of the globe, many of them refugees from countries where human rights were not respected. It is essential that they, and their children and grandchildren, should be confident that their adopted country treats them without discrimination and with due respect for their human rights. If they feel that they are not being fairly treated, their consequent resentment will inevitably result in the growth of those who, actively or passively, are prepared to support the terrorists who are bent on destroying the fabric of our society. The Human Rights Act is not merely their safeguard, it is a vital part of the foundation of our fight against terrorism.

It will be interesting, indeed, to see what Dr Reid makes of these words if, as I imagine they will be, they’re quoted to him when he tries to bring in more measures to sort out his control orders fiasco.

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