William Michael Ramsden Student ID: UM2743HLS6759 Ascertaining the Boundary of Legitimate Judicial Intervention A Final Dissertation Presented to The Academic Department of School of Social and Human Studies In partial Fulfillment of the Requirements For the Degree of Ph.D Link to the University: hhp://www.aiu.edu A I U Ascertaining the Boundary of Legitimate Judicial Intervention ‘Sections 3 and 4 of the Human Rights Act: ascertaining the boundary of legitimate judicial intervention’ Index Chapter 1 Introduction and Overview 3-12 Chapter 2 Human Rights background and Context 13-54 Chapter 3 Freedom and liberty 55-67 Chapter 4 Public Authority uncertainty and Section 6(1) 68-150 Chapter 5 Enforcement under the Human Rights Act. 151-183 Chapter 6 Changing Constitutional Mores. 184-199 Chapter 7 Human Rights Uncertainty 200-239 Chapter 8 Anti-Terrorism Policies and the Open Society 238-353 Chapter 9 SIAT A Case Study 356-385 Chapter 10 The Dialogue Model 386-430 Chapter 11 Descriptive, analytical & normative arguments 431-433 Chapter 12 Conclusion 434-433 Bibliography 434-460 A Dissertation by William Michael Ramsden 1 ‘Sections 3 and 4 of the Human Rights Act: ascertaining the boundary of legitimate judicial intervention’ ------------------------------------------------------------------------------------- A special thanks to my son Michael Philip Ramsden LL.B (Hons), LL.M, who relentlessly read and re-read my thesis to which I am eternally grateful for his thoughts and comments. -and- Equally a special thanks to my younger son Matthew whose patience was beyond compare, as he allowed me time to complete my works at a cost of our extended time together. A Dissertation by William Michael Ramsden 2 ‘Sections 3 and 4 of the Human Rights Act: ascertaining the boundary of legitimate judicial intervention’ Introduction and Overview The purpose of this dissertation will be to examine critically how the judiciary have, so far, approached their enforcement role under Sections 3(1) and 4(2) of the Human Rights Act 19981 and what problems and prospects lie ahead; in particular following the extremists who have created a dilemma upon the United Kingdom2, and America, which brought in swift laws in an effort to address detention of terrorist.3 In supporting this dissertation, a broad approach will be taken. This broad approach will draw not only on the case law but the constitutional relationship between judiciary and Parliament in settling human rights disputes. The relationship between how the judiciary decides cases and how they perceive their role within a constitution cannot be underestimated. It cannot be ignored by the legal practioner, either, and has become a perennial field of study in many jurisdictions, and the implications on practice are immense. 1 Hereafter the ‗HRA‘ 2 The Government, in realising that detaining suspected international terrorists while undertaking the process of arranging deportation, would be incompatible with Article 5(1)(f) have prepared the ground by making a derogation order 3 The policy changes were not limited to the United States, as a large number of countries responded to the threat of terrorism. With terrorist actions around the world, including in Madrid, Bali, Russia, Morocco, and Saudi Arabia. Terrorism politics is truly global. A Dissertation by William Michael Ramsden 3 ‘Sections 3 and 4 of the Human Rights Act: ascertaining the boundary of legitimate judicial intervention’ The judiciary, it will be argued, do not reason to their decisions in a proverbial vacuum. It shall be argued that they are highly influenced by the surrounding constitutional context concerning contentious issues of Parliamentary democracy, equality, separation of powers and so on. The approach of this dissertation, therefore, is to engage in case analysis and to consider surrounding constitutional issues that come to have a bearing upon judicial adjudication4. It will be the purpose of this dissertation to ascertain out of the case law the substantive commitments members of the judiciary make in deciding cases. This will enable a duly considered analysis of the judiciary‘s enforcement role under Sections 3(1) and 4(2) and what factors are important in determining how they exercise this power. Importantly the dilemma of terrorism has had a broad impact upon the decision maker and the Government and ‗proportionally‘ have not always been the victor when looking to protect those of who saw the HRA as the corner stone to democracy. 4 For instance terrorism laws came under scrutiny both be the UK courts and the European Court of Human Rights, where detention without charge was a violation of the Convention on Human Rights. A Dissertation by William Michael Ramsden 4 ‘Sections 3 and 4 of the Human Rights Act: ascertaining the boundary of legitimate judicial intervention’ In particular in light of the Global threat through terrorism, it will be necessary to examine in great detail5 how the Convention on Human Rights;6 embraced or otherwise rejected any compromise. In particular the use of Torture has been at the forefront of the investigation in the way that the judiciary has failed in most cases to remedy the obvious violations of the HRA. We shall look at the newly formed Special Independent Appeals Tribunal,7 who it will be ventilated fail to adhere to the Convention in the procedure/s adopted8 It shall be argued that the use of ‗closed‘ evidence before the SIAT is in its self a violation of the Convention/s as well as the HRA. It shall be argued that the workings of the SIAC, in failing to adhere to the common law principles, let alone the HRA has caused concern to those who hold the HRA dearly, which even outraged a Senior Politician as ―degradable9‖. The secrecy deployed by the SIAC does to not lend itself to the spirit of the HRA, yet such deficiencies, almost go unchecked by the 5 Critically analysed in Chapter 8. 6 Hereafter the Convention 7 Hereafter SIAC 8 For instance the use of closed evidence and the restriction placed upon the Special Advocate in being unable to take proper and full instructions. 9 Mr. Jack Straw MP A Dissertation by William Michael Ramsden 5 ‘Sections 3 and 4 of the Human Rights Act: ascertaining the boundary of legitimate judicial intervention’ judiciary. For completeness consideration will be given to a number of case studies, at the speed in which determinations are made by the SIAT10 Conversely, this dissertation selectively draws upon the case law of both the European Court of Human Rights11 and domestic courts, domestically, both post and pre HRA cases will be considered and analyzed to ascertain how the judiciary understands their role, precipitated by the statute itself. On the pan-European level, European Court12 cases will be analyzed, with particular emphasis on how they have come to characterise rights in question, and the bearing this can have on domestic courts. Of course, the varying judicial approaches need to be put in context, and this dissertation will aim throughout to make this connection clear. Detailed reference is required to the reasons behind the HRA, its legislative history and how Parliament settled on its key provisions, and again it should be borne in mind that the threats 10 Chapter 9 11 Hereafter the ‗ECtHR‘ 12Discussed in Chapter 4 A Dissertation by William Michael Ramsden 6 ‘Sections 3 and 4 of the Human Rights Act: ascertaining the boundary of legitimate judicial intervention’ that society are now faced, were not within the contemplation of the Convention, nor was the global stage for terrorism. This understanding plays an important part in locating the HRA in a constitutional context embracing many different (and in some cases, diametrically opposed) ideals. Particularly, it will be argued that there is an internal constitutional tension that itself brings to bear on how the judiciary operate under Sections 3(1) and 4(2); which leads to highly divergent and opposed views on determining what human rights is, when they are engaged, when they are breached, and how they are enforced, the latter being of immense importance to those suffering such violations. However, this dissertation will go further than merely connecting the influence of constitutional context on the case law, and will make some claims as to how the judiciary should be approaching their role under Sections 3(1) and 4(2). This normative aspect of the dissertation, which calls for a new approach embracing greater Parliamentary scrutiny of human rights, is deemed entirely necessary to set new practical guidance on the judiciary‘s enforcement role. A Dissertation by William Michael Ramsden 7 ‘Sections 3 and 4 of the Human Rights Act: ascertaining the boundary of legitimate judicial intervention’ It is because of the surrounding constitutional context, coupled with the HRA, which has distorted judicial decision making out of a definitive shape. A new approach is essential to provide practical guidance on the vexed enforcement mechanisms under Sections 3(1) and 4(2). In support of this broad approach, this dissertation will be divided into eleven chapters. Chapter 1, provides an overview, whilst chapter 2, visits the background and takes a historically survey the passage of the HRA and why it was considered necessary, what it sets out to achieve, whom it protects and whom it is enforceable against; given that the statute effectively incorporates the Human Rights and Fundamental Freedoms13, time will be spent analysing how the Convention operates, the obligations it places on member states, and how aggrieved parties can seek redress to the European Court. Moreover, the judicial method of the European Court, as resonant in the case law, will be given some consideration. Particularly, it will be examined; how human rights are characterised – whether they confer a negative or positive14 13 Hereafter the ‗Convention‘ 14 Discussed in Chapter 1 A Dissertation by William Michael Ramsden 8 ‘Sections 3 and 4 of the Human Rights Act: ascertaining the boundary of legitimate judicial intervention’ obligation or both, whether they are absolute or subject to qualification as ‗necessary in a democratic society‘, whether they afford a wide or margin of appreciation.