Opinion Piece | Zero Sums Game

Law and security has dual meanings, on the one hand, it is limiting people’s freedom but it is also protecting it. This, in turn, causes tension between freedom and security and most recently policies enacted by Western governments has limited basic liberties in response to the fear of terrorism. When discussing freedom, security and the law, it is evident that there is a power struggle between the judiciary as well as the executive in terms of due process models of justice.

These two bodies of governance present the paradox between the two philosophical arguments of which evil should be oppressed. The following essay will attempt to contextualize the cases relating to freedom and security by focusing on Liversidge v Anderson as well as Others v Secretary of State of the Home Department. Secondly, it will examine the role of the judiciary in relation to the executive in matters of law and security focusing on theoretical debates. Lastly, it will argue against judicial deference to the elected branches of government despite political demands for subservience to the executive. The balance between security and liberty within the context of the global threat of terrorism calls for a necessary new equilibrium situating the judiciary as defiant rather than deferential to the elected bodies of governance.          

The following paragraph will discuss the judgment given in the case of Liversidge v Anderson in relation to the dereference principle. By analysis of this case, the evidence will assert that the right of the executive to imprison persons without trial must be scrutinized by the judiciary and be proven unlawful based on fairness and the rule of law. In Liversidge v Anderson the appellant was detained under the regulation of 18B of the Defence Regulations Act, 1939.[1] This act gave powers to the Secretary of State to detain an individual if they have reasonable suspicion of associations to hostile origins, or is deemed a danger to the public’s safety. The appellant had been detained with no right to trial or a time limit set for detention which is contrary to the fundamentals of law laid down in the Magna Carta as well as the Habeas Corpus Acts.[2] The test for detention is based on ‘reasonable grounds of suspicion’ which leaves executive discretion at the disposal of the Secretary of State.[3] Yet, given the constitutional frame work of Britain’s political and legal system reasonable cause is subject to legal dispute which has and should be treated as an objective fact to be determined by an appropriate legal body. Nevertheless, the House of Lords ruled that the Secretary of State had acted in good faith and therefore, his grounds of reasoning should not be scrutinized. The Law Lords ruling in Anderson is contrary to the court’s duty to subject the decisions of the executive in correspondence with the degree of lawfulness which defines Britain’s Constitution. According to Lord Wright, liberty is a ‘regulated freedom’ and judges can only enforce is as much as the law will allow them to.[4]  

            Essentially, most the Law Lords held that they are obligated to respect the authority of Parliament and the government in national security measures and should not intervene. However, if judges accept Dicey’s doctrine of Parliamentary Sovereignty meaning, parliament is supreme to all other forms of law entities then the division of powers monitored by a check and balance constitutional system will cease to exist. The decisions given by the Law Lords was clearly public policy based rather than legal and resulted in three outcomes. Those being, the judgement implied the condition that the Secretary of State acted in good faith, the minister is technically given full discretion as to whether to detain an individual and lastly, absolute power was given to the executive.[5] Anderson v Liversidge is an example of civil liberties being restricted when judges chose deference in relation to matters of national security.

The following paragraph will be a critical analysis of the Others v Secretary of State of the Home Department (the Belmarsh Prison case) focusing on the ways in which the judges responded to legislation and ministerial decisions on national security and human rights post 9/11. It is important to highlight the socio-political atmosphere the executive, legislature and judiciary faced in the wake of the 9/11 terrorist attacks on the United States. Since the United Kingdom was an ally of the United States, the country was on high alert of imminent threat of terror. Therefore, after the 9/11 attacks the United Kingdom’s government declared a public emergency threatening the life of its citizen’s which lead to the enforcement of the Anti-Terrorism, Crime and Security Act of 2001. Specifically, section 23 of the Anti-Terrorism, Crime and Security Act 2001 allowed for indefinite detention of non-nationals without trial in circumstances where they have been determined by the Secretary of State be to a security risk.[6] This meant that the government could discriminate on grounds of nationality which in turn, derogated from its obligations under the European Convention on Human Rights. Specifically, section 23 of the Anti-Terrorism, Crime and Security Act of 2001 was incompatible with article 5 of the Convention ‘Right to Liberty and Security,’ as well as article 14 ‘Prohibition of Discrimination.’[7]

Unlike in Liversidge v Anderson the judges evaluated the threshold criterion of articles 5 and 14 demonstrating that the courts were not restricted by any doctrine of deference from examining the legality of section. 23. Despite taking affirmative measures to obtain an unbiased and objective assessment of the legality of the executive the ruling in the Belmarsh Prison case is merely a moral victory. Meaning, the judge’s recognized s.23 applied only to non-nationals and unjustifiably discriminated against them on the grounds of their nationality. Lord Hoffman dissented by noting that s.23 is inconsistent with UK’s obligations under the European Conventions of Human Rights.[8] Thus, the judges declared sec.23 of the Anti-Terrorism, Crime and Security Act 2001 as incompatible with UK’s international human rights treaty obligations exercising their duty of the court in its judicial capacity in determining the legality of the appellant’s appeal. The judges wholly accepted the Attorney General’s view that there was a public emergency threatening the life of the nation which Lord Bingham categorized as a ‘more purely political issue’ and not an appropriate matter for judicial review.[9] Although the judges held the executive accountable to human rights violations it did not release the foreign nationals who were detained under the Terrorism Act of 2000.[10]

In disputes regarding human rights and national security judges are fully equipped to act independent from political pressures to interpret and apply the law through judicial decision-making. Others v Secretary of State of the Home Department was a landmark judgement and according to Zender ‘signaled a reassertion of judicial might.’[11]Zender examines judiciary procedures through due-process models. Even during times of imminent terrorist threats the due process system embedded in criminal justice provides safeguards through judicial review to balance collective interests and personal liberties. By judge’s nonbiased legal reasoning ‘it may be possible to enhance collective security against terrorism without diminishing individual security against the state.’[12] Judges should uphold their democratic mandate by being defiant rather than deferential to balance security and liberty. David Feldman’s academic journal ‘Human Rights, Terrorism and Risk’ takes a similar stance towards judicial deference and discuss’ the risks involved in shifting away from freedom towards security based public policies. Feldman argues ‘we cannot properly fight terrorism with one hand tied behind our back.’[13] Meaning, proper measures to address terrorist threats must be taken while being reluctant to sacrifice civil liberties. Therefore, the tendency of judges to seek Parliament’s approval in cases of national defense delegitimizes its independency and leads to an imbalance between security and liberty.

Despite the doctrine of separation of powers there is a tendency to oppose the independency of judicial legitimacy within the United Kingdom. There has been reluctance on behalf of judges to decide policy matters regarding national security. In matters of national security, the cost of failure can be high which alters the scheme of civil liberties and restricts judge’s roles as safeguards. Keith Ewing critique’s the judiciary and claims judges have failed to prevent legislation which enacts human rights violations.[14] The ‘judicial arm’ of government has not extended to the decisions of ministers of the Crown on terrorist activities and has instead continued to take a deference approach. However, the relationship between the courts and Parliament regarding decisions of civil liberties is a power struggle between Parliamentary supremacy and the rule of law. It must also be acknowledged that judges are limited in scrutinizing the executive which sometimes results in deference by the courts. Kavanagh offer’s three reasons for this occurrence one being, the executive will claim the need for secrecy of national security related cases which leaves the judiciary in uncertainty.[15] Secondly, judges are aware of the legal and political consequences if they fail in reaching a balanced decision.[16] Lastly, judges are experts of law not policy therefore at times their expertise may be limited and legitimacy should defer to the executive.[17]That said, cases such as Belmarsh demonstrate the courts role under the Human Rights Act of 1998 as the guardians of human rights and the presence of judicial activism despite the above-mentioned challenges.

As previously stated in the wake of terrorist attacks steaming from September 11^th, 2001 and recent threats to security from Islamic extremist groups, the executive has implied that a curtailment of liberty is an appropriate remedy. Jeremy Waldron’s article ‘Security and Liberty, the Image of Balance’ argues that this is a product of political defeatism.[18] Meaning, despite efforts to strike a balance between individual’s liberties and security measures the state favours limiting liberty and uses the threat of terrorism to justify its means.[19] Although this argument fails to recognize the legitimacy of the judiciary and its democratic accountability, elements of this theory are demonstrated in Secretary of State for the Home Department v Rehman 2001. Mr. Rehman applied for indefinite leave to remain in the United Kingdom but was denied based on suspected terrorist organization ties.[20] The decision is Rehman suggests the balance in question is not between security and civil liberties but rather an ‘us’ versus’ ‘them’ zero-sums political game.

Despite due-process measures of governance as well as the rights embedded in the European Convention of Human Rights, they are not prima facie rights which without the safeguards of the judiciary the executive may legitimately exploit. Derogation is allowed under article 8 of the ECHR ‘for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’ as well as article 15 of the Convention allows which allows for ‘derogation in time of emergency.’ These derogations at the disposal of the executive and legislature could lead to an unjust erosion of due process rights and a decline in the purposive approach.[21] Even though ‘in matters of national security the cost of failure can be high,’ the elected branches of government have responsible government conventional duties to balance the protection of individual rights with counter-terrorism measures. On the other hand, judges have a constitutional mandate to monitor the decisions made by the legislature and executive to the standards of the rule of law and the Convention.[22] Despite critics accusing judges of being ‘more executive-minded than the executive,’ Aileen Kavanagh refutes this claim by testifying to a significant change in the constitutional landscape since the enactment of the Human Rights Act 1998.[23] The judgement in the Belmarsh Prison case rejected the notion that decisions made by the legislature and executive on national security are immune to judicial review. The balance between security and liberty within the context of the global threat of terrorism calls for a necessary new equilibrium between the divisions of powers.

The balance between security and liberty within the context of the global threat of terrorism calls for a necessary new equilibrium situating the Judiciary as defiant rather than deferential to the elected bodies of governance. The following essay has addressed the issues of balance between freedom and security by discussing the cases of Liversidge v Anderson as well as Others v Secretary of State of the Home Department. The judicial reasoning behind these cases demonstrates a shifting in powers from the executive to the judiciary in cases of national security.

The central focus of this paper has been to advocate for judges to not dilute their constitutional powers to the legislature and to remain deferent rather than deferential. Despite judges not being policy experts they are fully competent and possess the necessary skills and expertise to scrutinize the legislature ensuring the protection of civil liberties. Despite political pressures by MP’s such as Michal Howard who lobby against aggressive judicial review activism, judges are to remain as the safe guards of human rights.[24] United Kingdom’s unique unwritten Constitution is based on the fundamental principles of reasonability and the rule of law. Despite Parliament having a Constitutional authority of legitimacy allowing them to pass legislation, the judiciary is a necessity for restrictions on the executive and legislature when reasonably needed. 

 By Jessica Anna Bernatek, LLB Law Candidate

Bibliography:

Secretary of State for the Home Department v Rehman [2001] UKHL 47
Liversidge v Anderson [1946] UKHL 1
A& Others v Secretary of State for the Home Department [2004] UKHL 56
Magna Carta (1215)
Habeas Corpus Act (1679)

‘Home Office: Defence Regulation 18B, Advisory Committee Papers | The National Archives’ (Discovery.nationalarchives.gov.uk, 1945) <http://discovery.nationalarchives.gov.uk/details/r/C9147> accessed 5 April 2017

United Kingdom: Anti-terrorism, Crime and Security Act 2001 [United Kingdom of Great Britain and Northern Ireland], 2001 c. 24, 14 December 2001, available at: http://www.refworld.org/docid/3de73e8e4.html [accessed 4 April 2017]

Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, available at: http://www.refworld.org/docid/3ae6b3b04.html [accessed 11 April 2017]

United Kingdom: Human Rights Act 1998  [United Kingdom of Great Britain and Northern Ireland],  9 November 1998, available at: http://www.refworld.org/docid/3ae6b5a7a.html [accessed 4 April 2017]

United Kingdom: The Terrorism Act 2000 [United Kingdom of Great Britain and Northern Ireland], 2000 Chapter 11, 20 July 2000, available at: http://www.refworld.org/docid/46e552412.html [accessed 4 April 2017]

“House Of Lords – Secretary Of State For The Home Department V. Rehman (AP)”. Publications.parliament.uk. N.p., 2001. Web. 2 Apr. 2017.

“Liversidge V. Anderson”. Uniset.ca. Web. 4 Apr. 2017.

“House Of Lords – A (FC) And Others (FC) (Appellants) V. Secretary Of State For The Home Department (Respondent)”. Publications.parliament.uk. N.p., 2004. Web. 4 Apr. 2017.

Chorley C, ‘The Modern Law Review’ [1937] Blackwell Publishing Ltd. <http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1941.tb02807.x/abstract> accessed 4 April 2017

Feldman D, ‘Human Rights, Terrorism And Risk: The Roles Of Politicians And Judges’ [2006] Public Law

‘Home Office: Defence Regulation 18B, Advisory Committee Papers | The National Archives’ (Discovery.nationalarchives.gov.uk, 2017) <http://discovery.nationalarchives.gov.uk/details/r/C9147> accessed 6 April 2017

‘House Of Lords – A (FC) And Others (FC) (Appellants) V. Secretary Of State For The Home Department (Respondent)’ (Publications.parliament.uk, 2004) <https://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&oth-1.htm> accessed 4 April 2017

‘House Of Lords – Secretary Of State For The Home Department V. Rehman (AP)’ (Publications.parliament.uk, 2001) <https://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd011011/rehman-1.htm> accessed 2 April 2017

Kavanagh A, ‘Constitutionalism, Counterterrorism, And The Courts: Changes In The British Constitutional Landscape’ (2011) 9 International Journal of Constitutional Law

‘Liversidge V. Anderson’ (Uniset.ca) <http://uniset.ca/other/cs5/1942AC206.html> accessed 4 April 2017

Street A, ‘Judicial Review And The Rule Of Law Who Is In Control?’ [2013] The Constitution Society <http://www.consoc.org.uk> accessed 10 April 2017

Tempest M, ‘Howard Warns Against Judicial Activism’ The Guardian (2005) <https://www.theguardian.com/politics/2005/aug/10/uksecurity.terrorism> accessed 4 April 2017

Waldron J, ‘Security And Liberty: The Image Of Balance*’ (2003) 11 Journal of Political Philosophy

Zedner L, ‘Securing Liberty In The Face Of Terror: Reflections From Criminal Justice’ (2005) 32 Journal of Law and Society