Government's Derogation Decisions under Article 15

Introduction

The European Convention on Human Rights (ECHR) allows Member States to derogate from its provisions in case of “war or other public emergency threatening the life of the nation.” Member States can do so if it is demanded by the “exigencies of the situation” and provided that the measures taken by the state are not inconsistent with its obligations under international law. In the UK, the question has arisen whether the judiciary can review the decision of the government when it does decide to derogate from Article 15 under the provisions of judicial review. This essay critically analyses two cases to discuss whether it would be correct to say that the decision whether there exists a public emergency threatening the life of the nation rests solely with the Government and is not justiciable. The cases are Council of Civil Service Unions ex.p Minister for the Civil Service (GCHQ case), and A v Secretary of State (Belmarsh case). In the second part of this essay, the positions taken by Lord Hoffmann and Lord Bingham in the Belmarsh case are critically analysed. This essay agrees with the position that Lord Hoffmann has taken in the case as opposed to Lord Bingham. The essay first discusses judicial review, especially with relation to judicial review of executive prerogative powers. Then the essay discusses the GCHQ case and Belmarsh case. Finally, the essay discusses the judgments of Lord Hoffmann and Lord Bingham.

Judicial review

Judicial review is statutorily provided under the Civil Procedure Rules, Part 54. Part 8 of the Civil Procedure Rules, Part 54, allow individuals to move the High Court for judicial review into administrative action. The High Court can issue a relevant order in response to application under Part 8.

Dr Bonham’s Case, is perhaps the first instance where a British judge ruled on the extent of judicial review powers of the court, in this case Sir Coke famously observed that the “common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void.” Despite this early example of judicial review in common law, the role of judiciary has been limited in this area because of the complex interrelation between parliamentary sovereignty and judicial powers. Nevertheless, the scope of judicial review has been provided in common law. The GCHQ case in itself is important in this context because in this case, the court had clarified that judicial review can be done over actions of the executive which are illegal, irrational, and procedurally improper. This follows the line of reasoning adopted in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, in which the court had held that if the decision of the executive is so perverse that it goes contrary to anything that a properly directed body could otherwise decide, then judicial review can be done on the ground of irrationality (Wednesbury principles). Therefore, there is already established jurisprudence on whether and under what conditions can the judiciary review the decisions of the executive. While the principle of parliamentary sovereignty would mean that the laws made by the parliament are outside the scope of judicial review, no such limitation is placed on government decision making. Indeed, the doctrine of parliamentary sovereignty requires that judiciary reviews the decisions of the government to test if they are ultra vires was applied the law of the Parliament. Even with respect to the parliamentary law, some dilution in established principles of judicial review has been done because of the application of the principle of European law supremacy and the principles of compatibility between the European law and domestic law through the operation of the European Communities Act 1972 and the Human Rights Act 1998.

GCHQ and Belmarsh cases

Although judicial review is a part of common law as well as statute, the question of how judiciary should deal with the prerogative powers of the executive is one that has been complex and difficult, especially in times of public emergency and war. Courts in England have often been required to adjudge on the question that can the action of the government be justiciable or not. In context of Article 15 of the ECHR, where the provision clearly mentions the determination of whether there is a war or other public emergency threatening the life of the nation, the court may be required to consider whether such determination is subject to judicial review or not. Cases decided by the British judiciary in context of executive declarations of emergency and related issues have seen judges take one of two positions, which are also seen in the judgments of Lord Hoffmann and Lord Bingham in Belmarsh case: either the judges choose to give too much deference to the executive decision as exemplified in Lord Bingham’s judgment; or the judges consider that even executive prerogative is subject to judicial review, as exemplified in Lord Hoffmann’s judgment. The first position accords with the viewpoint that considers ‘inherently political’ decisions, such as, the decision to declare public emergency, as outside the scope of judicial oversight. This viewpoint can be seen in the observation of Lord Diplock in the Council of Civil Service Unions ex.p Minister for the Civil Service, that national security is “par excellence a non-justiciable question.” In R (Gentle) v The Prime Minister, the House of Lords held war making prerogative powers are not subject to judicial review.

In GCHQ case, the question of judicial review arose with relation to a decision of Margaret Thatcher government to bar GCHQ employees from joining trade unions on the basis of national security. The GCHQ employees argued that the order of the government came in the way of their legitimate expectations. The government argued that they had Royal Prerogative, which was not subject to judicial review. The House of Lords held that Royal Prerogative is not outside the scope of judicial review, unless the power was exercised under national interest compulsions, in which case the court could not review the judgment. Therefore, the clear indication in GCHQ is that the decisions made in national security are outside the scope of judicial review. This is so even if the decisions of the executive lead to unfairness as in the case of the employees of GCHQ whose reasonable expectation was thwarted by the executive’s decision. The House of Lords held that even if the decision was unfair to the employees, it was outside the scope of judicial review because the decision was made on the basis of national security. In the GCHQ case the Royal Prerogative was used and in the Belmarsh case, the legislation of the Parliament was in issue. The Royal Prerogative refers to the powers that the monarch had in making treaties, declaring war, and deploying the armed forces. In GCHQ, as in the cases before this, courts have tended to limit themselves in reviewing the decisions that are made in the name of the Crown. In GCHQ, the court identified areas that are not justiciable, including (per Lord Roskill) prerogative powers “relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers.” Therefore, the limited approach to judicial review of the Royal Prerogative was taken in GCHQ. This contrasts with the decision of the House of Lords in Belmarsh, wherein their Lordships decided that the decision of the government could be reviewed on the basis of the ECHR even if the issue of national security was claimed as a ground for making the decision. However, the Human Rights Act 1998 has been enacted much after the GCHQ case and that legislation is one of the important reasons why the House of Lords decided the way they did in Belmarsh. This is discussed below.

Article 15 of the ECHR, which allows Member States to derogate from the provisions of the convention, does so on the basis of there being a war like or public emergency situation in which the states would be justified in suspending the operation of certain rights in the ECHR. The question of judicial review may arise because individuals would be deprived of their rights under the ECHR on the basis of the satisfaction of the executive that there is an existence of public emergency. Courts may consider this to be their responsibility because they are under a duty to protect civil liberties and human rights under Section 4 of the Human Rights Act 1998, as per which courts are required to interpret domestic law in a way that is compatible with ECHR or declare incompatibility between the two. In this context, it is pertinent to mention the following observation of Simon Brown LJ: “court’s role under the Human Rights Act is as the guardian on human rights. It cannot abdicate this responsibility.” However, when the state itself derogates from the ECHR on the ground that there is a public emergency, the court may have no ground for judicial review unless it can review the very decision of the government with regard to declaration of public emergency. This poses a conflicting situation for the court because of the general that the “the executive is better placed that the judiciary” in making determinations of this nature. Therefore, the court may be required to treat the decision with some deference. However, as the decision of GCHQ case and Belmarsh indicate, it is not necessary that the court will take such a deferential route.

In Belmarsh, the question before the court was whether the provisions related to indefinite detention in Anti-Terrorism, Crime and Security Act 2001, were contrary to the rights protected under ECHR or not. The background of this legislation is that it was enacted in the wake of the terror attacks against the US on 11 September, 2001 in which more than 3000 people had died. The Anti-Terrorism, Crime and Security Act 2001 was a response to this legislation on the basis that similar attacks could take place against the UK and had to be prevented, for which one of the provisions was that the state could indefinitely detain non-British terror suspects. The argument of the state was that being a national security question, it was only open to the determination of the executive or legislature and not the judiciary. Rejecting this argument, the court decided in Belmarsh that it does not need to give such as high level of deference to the decision of the executive. Although, Article 15 of the ECHR allows the government to derogate from ECHR, the court decided that whether such a public emergency exists is not outside the purview of the judicial review. The House of Lords by majority of eight to one, struck down the derogation order on the basis that there was an incompatibility between the indefinite detention provisions and the ECHR. The position taken by the House of Lords led parliament to repeal the provisions relating to indefinite detention in the 2001 Act.

The question of how far the courts can review the government’s decision with respect to public emergency was taken up in the Belmarsh case. The doctrine of political question was used as an argument by the government to argue that the judiciary cannot review the decisions of the government which are purely in the domain of the government; these are the so called political questions. The doctrine of political question is used as a defence against judicial review on the ground that deference to the political will is necessary in some questions, such as those related to national security. Lord Bingham’s judgment specifically mentions this issue as will be discussed later in this essay.

The contrasting viewpoints: Lord Hoffmann and Lord Bingham

Lord Bingham and Lord Hoffman took contrasting positions in Belmarsh case. The question before them was the extent to which deference ought to be paid to the decision of the executive to determine the existence of public emergency. Lord Bingham took a position of deference saying that the court must give “great weight” to the decisions of the Home Secretary, and Parliament “ because they were called on to exercise a pre-eminently political judgment.” Lord Bingham’s reasoning seems to suggest that the extent of judiciary’s deference to executive depends on the extent to which the question can be said to be political. If the question involves more political and less legal dilemma, then the executive is in the better position to respond to it. This much can be gleaned by the following observation made by Lord Bingham: “The more purely political a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision.” Admittedly, Lord Bingham does not say that judiciary can never review the decisions taken under the Royal Prerogative because he admits that review can be done if there is a legal issue involved in the use of the Royal Prerogative. Therefore, Lord Bingham keeps the option open for judicial review. However, in the present case he considered that the question was purely a political question and there was no legal content in that question.

It is submitted that this position of Lord Bingham does not accord with the duty of the court to uphold human rights under the Human Rights Act 1998. On the other hand, Lord Hoffmann appears to take a more measured view of this matter when he noted that the use of the powers by the Home Secretary directly affects rights of the individuals against whom such detention orders are made. The following observation is critical to understanding the viewpoint taken by Lord Hoffmann: “the power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial. Nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom.” Lord Hoffmann turns to the conflict between powers of the executive and the rights of the affected people to highlight where the legal content in the question is involved. Lord Bingham considered this question to be completely political but he neglected to consider that the question also involved an important matter of the rights of those indefinitely detained.

Clearly, Lord Hoffmann and Lord Bingham have taken two very divergent approaches to the issue of whether the question before them was a political question or whether it also involved a legal issue. Lord Hoffman has argued that the government may not use the powers in an unreasonable manner because there is a potential for interference with the liberties and rights of the people. The ECHR allows derogation in Article 15, but Lord Hoffmann considered that the court needs to consider whether the decision of public emergency is justified or not. In this context, Lord Hoffmann takes a more flexible view of the extent of judicial review and the extent of deference that the judiciary must pay to the executive decisions. This is consistent with the position taken by Lord Hoffmann explanation on judicial deference in R (ProLife Alliance) v BBC, in which case he noted that the word deference may be popular in describing the relationship between the judiciary on one hand and legislature and executive on the other hand, but he did not believe that “overtones of servility, or perhaps gracious concession, are appropriate.” In Belmarsh, Lord Hoffmann has stuck with this principle and has refused to let the idea of deference to the executive be taken to the extent that the court refuses to review an executive decision which has serious implications for human rights. Indeed, Lord Bingham has also not said that the judiciary ought to be completely servile to the executive. However, by adjudging the decision of the executive to be purely political in nature, Lord Bingham has effectively shut the option of judicial review on such a decision. UK is a State Party to the ECHR. As such, it is bound by its provisions; courts are under a duty to also meant to give deference to the Human Rights Act 1998, Section 4 which requires that the national legislation is compatible with the European law. In this context, considering the use of Article 15 simply on the basis of executive decision to derogate from the convention is inappropriate. It does involve a legal question, which Lord Bingham has neglected to consider.

Conclusion

Judicial review of the decision taken by executive on the existence of public emergency is possible as per the current jurisprudence on the matter. In Belmarsh, judicial review was permitted over a legislation under the provisions of the Human Rights Act 1998. This was a position different from GCHQ in which the House of Lords decided that the executive decision is outside the scope of judicial review if made in national security. In Belmarsh the House of Lords refused to take that line and declared that the provisions of indefinite detention were in conflict with the ECHR rights of the detained. This despite the declaration of derogation under Article 15 of the ECHR by the British government. Within Belmarsh, Lord Hoffmann and Lord Bingham did take divergent positions. Lord Hoffmann’s position is more balanced towards human rights, whereas Lord Bingham’s position is that the question is a political question and within the domain of the executive. Lord Bingham however neglects to consider that there is a possibility that the executive decision could be unfair to the detained in the context of their ECHR rights.

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Cases

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

Council of Civil Service Unions ex.p Minister for the Civil Service [1985] AC 374.

Dr Bonham’s Case 8 Co. Rep. 107a, 113b, 77 Eng. Rep. 638 (1610).

International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728.

R (Gentle) v The Prime Minister [2006] UKHL 20.

Books

Fenwick H, Civil Liberties and Human Rights (Oxon: Routledge 2007).

Abbott K, Pendlebury N and Wardman K, Business Law (London: Cengage 2007).

Oliver D and Drewry G, The Law and Parliament (Cambridge: Cambridge University Press 1998).

Slapper G and Kelly D, The English Legal System: 2015-2016 (Routledge 2015).

Journals

Cram I, ‘Beyond Lockean Majoritarianism?—Emergency, Institutional Failure and the UK Constitution’ (2010) 10 (3) Human Rights Law Review 461.

Helmholz RH, ‘Bonham’s Case, Judicial Review and the law of nature’ (2009) 1 (1) Journal of Legal Analysis Winter 325, 327.

Poole T, ‘United Kingdom: the royal prerogative’ (2010) 8 (1) International journal of constitutional law 146.

Steyn, ‘Deference: A Tangled Story’ [2005] Public Law 346.