Human rights, national security and accountability

National security has long been identified as a sensitive policy issue,^[979] but it has assumed particular contemporary prominence in western Europe and north America following the 11th September 2001 attacks in the US.

Adam Tomkins suggested, writing in 2003, that national security was ‘an area of government from which the courts generally prefer to keep away',¹²⁹ helping to highlight the law's ‘significant limitations' when it came to holding the government to account¹³⁰ and contributing to the conclusion that it was ‘unsafe to assume that greater judicial power, even greater judicial power that is ostensibly confined to the enforcement of human rights',¹³¹ was necessarily appropriate or democratic, especially considering the ‘significant role that political accountability, notwith­standing its imperfections, can and should continue to play'.¹³² However, during the period in which both Parliament and the courts have had to consider the Convention-compatibility of anti-terrorism legislation, it is perhaps significant that for many theorists, the balance appears to have altered somewhat, not least with the House of Lords' decision in A (FC) v Secretary of State for the Home Department (the ‘Belmarsh’ decision).¹³³ Here, it was accepted that section 23 of the Anti-terrorism, Crime and Security Act 2001, which provided for the indefinite detention without trial of foreign nationals reasonably suspected of involvement in international terrorism by the Home Secretary, contravened Arts.

2007); C Walker, Blackstone’s Guide to The Anti-Terrorism Legislation (Oxford: Oxford University Press, 2nd edn, 2009), pp 1-22.

¹²⁸ L Zedner ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’ (2005) 32 Journal of Law and Society 231, 242. For discussion of political pressures encouraging government action (and, by implication, heightening the need for accountability) in the national security field, see Walker, 2009, pp 15-17.

¹²⁹ Tomkins, 2003,p 207. ¹³⁰ Tomkins, 2003,p 208. ¹³¹ Tomkins, 2003,p210.

¹³² Tomkins, 2003,p210.

¹³³ A (FC) v Secretary of State for the Home Department [2004] UKHL 56. to Parliament’s attempt to invoke Art. 15 of the Convention to justify the deroga­tion, was quashed.

The Belmarsh case offers an important illustration of the roles of judicial and political accountability for at least four reasons. The first two are as follows: at the heart of the case lay the question of the compatibility of Parliament’s initial, post-11th September 2001 response to the perceived terrorist threat—namely, provisions of the 2001 Act—with the Convention, which had been brought into national law by the Human Rights Act 1998 when it came into force just a year earlier; and secondly, and on a connected basis given that the courts were still seek­ing to clarify and categorize their constitutional roles as accountability agents in Human Rights Act litigation, the decision contains important observations about the judicial role (which, while not openly couched in the language of accountability, can easily be adapted to it.)^[980]

In his majority judgment, for example, Lord Bingham emphasized that it was preferable to approach the deference owed by courts to political authorities as going to ‘demarcation of functions or...

of an understandable concern for national security, a measure may be taken which, on examination, can be seen to go too far’.¹³⁸

Returning to Tomkins' scepticism about the appropriateness of legal rather than political accountability, it is interesting to note that Helen Fenwick has described Belmarsh as a ‘dramatic rejection of deference in relation to national security matters',^[984] while Aileen Kavanagh suggests that the national security case law of recent years embraces a ‘ “constitutional shift” from a completely hands-off approach (as embodied in the doctrine of non-justiciability) to a more hands-on approach (as embodied in the idea of a variable intensity of review combined with a degree of deference)'.^[985] Kavanagh thus describes Belmarsh as ‘remarkable and significant' not because it involved a total sweeping aside of judicial deference in national security matters—it did not—but rather because the House of Lords insisted on keeping its legitimate reviewing role while acknowledging that ‘the primary decision on what national security was, first and foremost, a decision of the elected branches of government'.^[986] Viewed in these terms, Belmarsh appears to represent a recognition by the House of Lords of both the power of and the limits to the judicial role in relation to the accountability of the executive.

The third basis for the significance of the Belmarsh decision is that among factors repeatedly mentioned by Lord Bingham in his majority judgment were the views expressed on the 2001 measure by Parliament's Joint Committee on Human Rights^[987] and a Committee of Privy Counsellors chaired by Lord Newton with a mandate to investigate the in/compatibility of legislation and legislative proposals with Convention rights. This seemingly suggested that the results of certain types of non-judicial and ultimately political scrutiny could play an important eviden­tial role in a context in which the focus was on assessing the legal legitimacy of legislative and executive action.^[988] The fourth, connected, basis is that the House of Lords' decision can arguably be classified as having encouraged a lengthy ‘dialogue' between the legislature and the highest court about what might be included in terrorism legislation on a Convention-compatible basis, involving an active exchange between political and legal institutions and the promotion of accountability through both routes.^[989]

Some of these points can be highlighted by considering subsequent develop­ments. Following Belmarsh, Parliament replaced Part 4 of the 2001 Act, includ­ing the disputed section 23, with the Prevention of Terrorism Act 2005, which allowed the Home Secretary to impose restrictions on a person (for example, relating to their association or communications, their place of residence, or their movement within the UK) for purposes connected with protecting the public from a risk of terrorism.^[990] Robert Wintemute has pointed out that Parliament would have needed to consider new legislation anyway given that s 29 of the 2001 Act was a ‘sunset’ provision which would have caused Part 4 automatically to expire in early 2005.^[991] Nevertheless, Peter Hain MP, Leader of the House of Commons, drew attention to the implications of the Law Lords’ Belmarsh deci­sion as a reason for the short timetable for Parliamentary debate concerning what became the 2005 Act,^[992] and the decision itself as a reason for introducing the legislation.^[993] Furthermore, Charles Clarke MP, the Home Secretary, empha­sised that he ‘accept[ed]’^[994] the Belmarsh decision and described the legislation as ‘designed to meet the Law Lords’ criticism that the previous legislation was both disproportionate and discriminatory’.^[995] Indeed, ‘[i]f the Law Lords say that we have discriminatory and disproportionate legislation...

In any event, a spirit of ‘dialogue’ seemed to be evident when the House of Lords later assessed the compatibility of various control orders made under the 2005 Act with Arts. 5 and (occasionally) 6 of the Convention in the JJ, MB and E cases. The general Convention-compatibility of the 2005 legislation was assumed by the Judicial Committee,^[999] while Lord Carswell noted the ‘tension between the opposing imperatives of protecting the safety of the public and protecting individual human rights’ and the difficulty of ‘finding an acceptable resolution’, and stressed that the government had sought to discharge its duty to protect the public but was subject to regular challenges from those affected by the resulting measures, that Parliament needed to legislate in accordance with Convention rights, and that the courts were required to adjudicate upon the Convention-compatibility of the legislation.^[1000]

Furthermore, as in Belmarsh, Lord Bingham sought to draw attention to the views of the Joint Committee on Human Rights and—on this occasion—to those of the Independent Reviewer of Terrorism Legislation.^[1001] Such remarks draw attention to the point that, viewed by reference to a ‘dialogue’, the post-September 2001 national security statutes seem to go beyond initiating a simple exchange between Parliament and the courts in that their provisions may also be subject to periodic review by non-judicial actors.

The Newton Committee’s evaluation was confined to the 2001 Act, but the Independent Reviewer ofTerrorism Legislation serves as a second, more long-standing non-judicial scrutineer. Under Parliamentary pressure, the government agreed to the creation of an independent reviewer during the passage of the 2001 Act, and the position—the holder of which was appointed by the Home Secretary and confined under section 28 only to reviewing certain aspects of Part 4—was filled by Lord Carlile QC until 2011.^[1008] Section 14 of the Prevention of Terrorism Act 2005 in turn (and under Parliamentary pressure) mandated annual independent review of that Act, and under the Terrorism Act 2006—which replaced the 2005 Act—sec­tion 36 mandated the appointment of an independent person to conduct an annual review of the Terrorism Act 2000 and Part I of the 2006 Act. Lord Carlile was also appointed to these latter roles, arguably giving the impression that he had become a general scrutineer. His reports have often been cited in Parliament and by the Joint Committee on Human Rights,^[1009] and as noted above Lord Bingham referred to his conclusions in JJ and MB.^[1010] Lord Carlile’s successor, David Anderson QC, thus argued that while ‘[s]ome of Lord Carlile’s recommendations were rejected or ignored... through his public reports and private interventions, he repeatedly demonstrated the Reviewer’s capacity both to affect the public and political debate on the shape of counter-terrorism laws and to bring about changes to their operation’.^[1011] Nonetheless, Clive Walker criticises the independent review scheme as ‘muddled’ given how far its application varies from statute to statute,^[1012] and suggests that to some extent an appearance of coherence may simply have been the result of the same person being appointed to act as reviewer for all the relevant statutes. In addition, the Joint Committee on Human Rights has suggested that the Independent Reviewer may be seen as insufficiently independent from the gov­ernment and that the post should be reformed ‘so as to be Parliament’s Reviewer rather than the Government’s: appointed by Parliament and reporting directly to Parliament’.^[1013] It is thus interesting that while declining to comment on the merits of this suggestion, David Anderson accepted that future Reviewers must be ‘strong and independent’.^[1014]

The first two non-judicial reviewers clearly comprise or are members of the social/ political ‘great-and-good’: in other words, ‘above criticism’ and usually former political actors rather than currently elected politicians. However, a third non-judicial scrutiny mechanism—the Parliamentary Joint Committee on Human Rights—comprises members of both Chambers with a special interest in human rights, and (as noted above) evaluates proposed and enacted anti-terrorism measures for their compatibility with Convention rights: something which may offer practical help to legislators in identifying the human rights implications of Bills.^[1015] While some of the Committee’s evaluations have been heeded by the government, Murray Hunt observes that the executive also ‘frequently rejects’ the Committee’s recommendations, not least in the area of national security.^[1016] However, Hiebert notes that ‘[{Increasingly, parliamentar­ians refer to JCHR reports in their deliberations, although this occurs more often in the House of Lords than the Commons and is more likely to happen among opposi­tion members or cross-benchers than government party members’.^[1017] Meanwhile, Hunt is clear that ‘there has been more independent scrutiny within Parliament of the Government’s record on human rights’.^[1018] The judiciary seems also to have been keen to note the Committee’s concerns.^[1019] At a conceptual level, and very much in line with the notion of ‘dialogue’, Hiebert therefore suggests that the Committee assumes a ‘central role’ in the ‘dialectical relationship’ between government, Parliament and the judiciary contained within the Human Rights Act.^[1020]

The three non-judicial reviewers mentioned here have all, to varying extents, played a role in political and/or (through judicial citation) legal evaluation of national security measures, hopefully on balance reflecting Kent Roach’s suggestion that ‘[i]ndependent reviews of both legislation and police actions have the potential to provide increased accountability for national security activities’.^[1021] Sometimes this has involved their findings being invoked in judicial decisions or Parliamentary debates as supporting justifications for the decision-maker’s own conclusion; sometimes it has involved mutual citation for the same purpose by two or more of the non-judicial reviewers—almost emphasizing such reviewers’ collective and indi­vidual expertise in national security matters, going above and beyond that generally possessed within Parliament or by the judiciary.^[1022] Nonetheless, given that all three reviewers have their roots in the legislature, they must ultimately—and as is implied by the label ‘non-judicial’—be seen as political, even if they or their members are no longer involved in or at least focusing on the day-to-day business of party poli­tics. These reviewers’ role in the ‘dialogue’ concerning national security measures therefore implies that courts and contemporary politicians are perhaps involved in a somewhat three-sided process, when seeking to hold government to account, rather than engaging only in ‘dialogue’ with one another.^[1023]

Given this background, it is interesting to see that the Joint Committee—as a part of the legislature—has seemingly recognized the important role played by legal accountability, while also suggesting that scrutiny within Parliament has been inad­equate. In its 2010 Report, revealingly entitled Counter-Terrorism Policy and Human Rights: Bringing Human Rights Back In, the Committee emphasized ‘the serious democratic deficit in the making of counter-terrorism policy’ since 2001.^[1024] In particular, ‘Much of what we now know’ about anti-terrorism measures effected using executive action ‘has only seen the light of day because of litigation or the release of previously classified documents by foreign governments’.^[1025] The Committee thus felt it important to critically assess whether Parliament’s accountability mechanisms had been operating effectively enough, causing it to conclude that ‘the mechanisms of democratic accountability for counter-terrorism policy have largely been found wanting’.^[1026] For example, the Court of Appeal’s judgment in R. (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs^[1027] raised serious doubts about the Intelligence and Security Committee’s effectiveness as a mechanism for scrutinizing the security services, causing the Joint Committee to recommend that it be converted into a ‘proper’ Parliamentary committee with an independent secretariat, legal advice and investigatory mechanisms.^[1028] While the focus of these comments was on executive action, it is clearly significant from the standpoint of accountability that a body which might be described as a non-judicial part of the ‘dialogue’ relationship was nonetheless emphasizing the crucial nature of the judicial contribution.

It should thus be clear that the 2001 and 2005 Acts provide an important case study of the roles played by political and legal accountability.^[1029] While courts have traditionally been reluctant to become involved in national security matters, Belmarsh may suggest that this reticence has slightly declined, while still remaining powerful. Legal challenges, as a basis for holding government to account, may seem a more promising option than was once the case, albeit one to which there are limits. Within the political sphere, an active role has been played by the Joint Committee on Human Rights (acknowledged by Lord Bingham in two of his judgments). The Committee does not seem itself to feel that its Reports have been accorded sufficient weight elsewhere in the political process, and has doubts about the efficacy of other ingredients of that process as mechanisms for securing proper accountability for national security measures, but some commentators are more optimistic.^[1030] From the standpoint of accountability of the legislature, the key lesson seems thus to be that the debate and litigation concerning the 2001 and 2005 Acts may plausibly suggest that some sort of ‘dialogue’ concerning national security legislation has taken place between Parliament and the courts, albeit an exchange in which other institutional actors associated with the political process have been involved.^[1031] It might also be ventured, given the central and difficult place occupied by national security issues in contemporary politics, that the material considered here makes it hard to imagine a workable approach to security measures which did not involve inter-institutional ‘dialogue’ and include some combination of legal and political accountability mechanisms

D.