student law review constitutional law the attorney...

Lord Goldsmith, the former Attorney General, initially held the view thatan invasion in 2003 would be unlawful without a ‘further’ UN resolutionbeyond Resolution 1441. Following a trip to the US in February 2003 anddiscussion with various parties to the negotiation, his view changed tothe effect that there was in law a ‘reasonable case’ for going to warwithout a further resolution. Notably he spoke only to US and UK partiesto the negotiation of 1441. As a result, his new position was expressed inhis advice to the Prime Minister dated 7 March 2003, just two weeksbefore the US-UK led invasion.

That position in fact changed again significantly by the time of hispublic statement 10 days later in a written answer in the House of Lordson 17 March 2003. The legal view expressed then was unequivocal:

“Resolution 1441 would in terms have provided that a furtherdecision of the Security Council to sanction force was required ifthat had been intended. Thus, all that Resolution 1441 requires isreporting to and discussion by the Security Council of Iraq's failures,but not an express further decision to authorise force.”

It is clear that the Attorney General had moved from his view thatthere was merely a ‘reasonable case’ that military action would be legalwithout a second resolution to a plain positive that it would be legal. Atthe time, of course, the 7 March advice was not in the public domain andconsequently the movement to an unequivocal view was not evident. The7 March advice was not in fact put into the public domain until 2005,following leaks of its contents in the media. There has been a lot ofcontroversy about the content of the Attorney General’s advice of 7March 2003, and how the caveats in it were absent from his final publiclyexpressed view of 17 March 2003.

Justifying the change in his final position to the Chilcot inquiry, LordGoldsmith explained that he had been asked to give a clear yes or no bythe armed services and the civil service, as they were concerned theycould not act without such certainty. Leaving aside the unresolvedquestion of whether that was sufficient justification for expressing hislegal view publicly as he did, was the basis of his legal advice sound in thefirst place?

The advice of 7 March had set out the three possible bases for the useof force: (1) self-defence (which may include collective self-defence); (2)exceptionally, to avert overwhelming humanitarian catastrophe; and (3)authorisation by the Security Council acting under Chapter VII of the UNCharter.

Force may be used in self-defence if there is an actual or imminentthreat of an armed attack; the use of force must be necessary, ie the onlymeans of averting an attack; and the force used must be a proportionateresponse. Lord Goldsmith expressed the commonly held view that theremust be some degree of imminence. He rejected any US arguments for

the recognition of a broad doctrine of a right to use force to pre-emptdanger in the future. The Attorney General’s view was that there was noargument that the UK faced an imminent threat and this basis could notbe relied upon. As regards the infamous government dossier and its claimthat Iraq could use weapons of mass destruction within 45 minutes, hestated that was not something he had any regard to.

The second potential basis for the use of force would be to avertoverwhelming humanitarian catastrophe. This was emerging as a further,and exceptional, basis for the use of force without a UN resolution. It wasrelied on by the UK in the Kosovo crisis and was the underlying

Student Law Review 2010 • Volume 60 15

CONSTITUTIONAL LAWStudent Law Review

THE ATTORNEYGENERAL’S ADVICE ON THE LEGALITY OFTHE 2003 WAR IN IRAQby Graham Arnold, barrister, Farringdon Chambers

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p15-16 – Constitutional Law v60 8/4/10 07:30 5

justification for the No-Fly Zones in Iraq. The doctrine remainscontroversial. In any event the Attorney General, in his advice, saw noreason why it would be an appropriate basis for the use of force in 2003.

Consequently the only lawful basis for the use of force in 2003 waswhere it was authorised by the UN Security Council acting under ChapterVII of the UN Charter. Therefore the key question is whether resolution1441 had the effect of providing such authorisation without furtherresolution. The argument that 1441 itself provided the authorisation touse force depended on the revival of the express authorisation to useforce given in 1990 by Security Council resolution 678. This has beentermed the ‘revival argument’.

The revival argument is controversial. It is not widely acceptedamong academic commentators. It is probably fair to say that themajority of commentators and international lawyers assert that nothingless than an explicit authorisation to use force in a Security Councilresolution will ever be sufficient. Lord Steyn and Lord Bingham, formerlaw lords, have both expressed the view that the use of force wasunlawful without a further resolution. It was also the view of theprincipal legal advisors at the Foreign Office at the time. However, theAttorney General ultimately did not agree with these views.

Resolution 1441 and the revival argument.Following Iraq’s invasion and annexation of Kuwait, the Security Councilauthorised the use of force against Iraq in resolution 678 (1990). Thisresolution authorised coalition forces to use all necessary means to forceIraq to withdraw from Kuwait and to restore international peace andsecurity in the area. The resolution gave a legal basis for Operation DesertStorm, which was brought to an end by the cease-fire set out by theCouncil in resolution 687 (1991). The conditions for the cease-fire in thatresolution (and subsequent resolutions) imposed obligations on Iraq withregard to the elimination of WMD and monitoring of its obligations.

The ‘revival’ argument depended on the fact that Resolution 678authorised the use of force and the contention that Resolution 687suspended it on conditions, but did not terminate it. In other words if Iraqwas found to be in ‘material breach’ of the relevant conditions theauthority to use force could be revived at any time subsequent. That wasthe Attorney General’s view as expressed in his advice. In other words anew resolution explicitly authorising the use of force was not required,merely a current resolution finding Iraq in material breach of resolution687.

The Attorney General pointed out that it was a requirement that theSecurity Council had to make the relevant finding that Iraq was in‘material breach’. This was different from the position taken by the USwho argued it was open to them independent of the Security Council tomake such a finding.

Of note, in 1998 a determination had been made by the SecurityCouncil in Resolution 1205 that Iraq was in ‘flagrant violation’ of theconditions in 687. That had been used to justify the use of force in 1998,namely targeted bombing as part of ‘Operation Desert Fox’. But did thatdetermination suffice in 2003? The Attorney General’s view, as confirmedat the Chilcot inquiry, was no and in his judgment you could not rely onpast findings of breach. Therefore a new determination by the SecurityCouncil was required.

So did Resolution 1441, adopted on 8 November 2002, provide thenecessary determination? 1441 did confirm at paragraph 1 that Iraq wasin material breach of resolution 687 at the time. But paragraph 2 thenprovided that Iraq was to be given a final opportunity to comply. Even ifone accepted the revival argument, plainly, the authority to use forcecould not be revived under 1441 unless Iraq failed to take its ‘finalopportunity’ to comply.

Paragraph 4 of 1441 provided that false statements or omissions indeclarations by Iraq and failure by Iraq at any time to comply with andcooperate fully in the implementation of resolution 1441 shall constitutea further material breach of Iraq's obligations and will be reported to theCouncil for assessment under paragraphs 11 and 12 of the resolution.

This, it was argued by the Attorney General, meant that the Council hadpredetermined that Iraq would be in material breach provided it wasshown factually that they had failed to comply as required.

Paragraph 12 provided that the Council would convene immediatelyon receipt of a report of non compliance "in order to consider thesituation and the need for compliance with all of the relevant Councilresolutions in order to secure international peace and security".

The critical legal question was, “did 1141 mean there needed to be afurther decision by the UN? Or, once it had become factually apparentthat Iraq had failed to comply as required, was there authority to useforce without any further decision from the UN?”

In the end the Attorney General, in his advice of 7 March, concludedthere was a ‘reasonable case” that no further decision was required andforce was authorised on the basis of 1441 provided “hard evidence ofnon-compliance and non-cooperation” could be demonstrated. He reliedon the fact that the resolution had deliberately adopted the word‘consider’ in paragaraph 12 and not the word ‘decide’. He took that tomean that provided the Council had considered reports of further noncompliance, and there was clear evidence of non compliance, it did notmatter that no decision was reached on the back of it.

However in reaching that conclusion he said this:

“… the language of resolution 1441 leaves the position unclear andthe statements made on adoption of the resolution suggest thatthere were differences of view within the Council as to the legaleffect of the resolution. Arguments can be made on both sides. A keyquestion is whether there is in truth a need for an assessment ofwhether Iraq's conduct constituted a failure fully to cooperatewithin the meaning of paragraph 4 such that the basis of the cease-fire is destroyed. If an assessment is needed of that sort, it would befor the Council to make it. A narrow textual reading of the resolutionsuggests that sort of assessment is not needed, because the Councilhas pre-determined the issue. Public statements, on the other hand,say otherwise.

In these circumstances, I remain of the opinion that the safest legalcourse would be to secure the adoption of a further resolution toauthorise the use of force. I have already advised that I do notbelieve that such a resolution need be explicit in its terms. The keypoint is that it should establish that the Council has concluded thatIraq has failed to take the final opportunity offered by resolution1441, as in the draft which has already been tabled.”

At the time of the 7 March advice, attempts were being made at UNto have a ‘second’ resolution adopted confirming Iraq had failed to takethe final opportunity offered to it in 1441. The resolution split the UN andwas eventually withdrawn under an alleged threat by France to veto thenew resolution "whatever the circumstances”.

The Attorney General knew by the 17 March that there would be nosecond resolution. It was in that knowledge that he gave his unequivocalview of the legality of the use of force without a further resolution ordecision.

There are very serious legal doubts about the ‘revival argument’. Canit be right that an authority to use force for a particular purpose in 1990is capable of being resurrected thirteen years later where there is nolonger sufficient support within the UN? Even if the revival argument issustainable, in the circumstances of an ambiguous resolution should theauthority to go to war be found in a narrow textual interpretation of itstext? The final question is should the Attorney General have expressed hisview unequivocally when his actual opinion was that there was no morethan a ‘reasonable case’?

These are important questions that the Chilcot inquiry will no doubtseek to address. But perhaps there is a further question that needs to beconsidered: What competent judicial body could rule that the invasionwas illegal? And what consequence could follow if the use of force was infact illegal? Those are questions that will be considered in the next issue.

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Some nine years after its conception and five years after the original textof the constitutional treaty was adopted, the Lisbon Treaty finally enteredforce on 1 December 2009.

Amongst key innovations of the treaty, two have attracted the mostattention. First, the new Commission President to represent the EU andsecondly, a new ‘double-hatted’ Minister for Foreign affairs.

At an informal meeting in Brussels in November, the Heads of Statereached a political agreement on the appointment of Herman VanRompuy as the President of the European Council. He will be elected fora period of two and a half years, renewable once. At the same timeCatherine Ashton was appointed as High Representative of the Union forForeign Affairs and Security Policy.

While much has been made of the appointment of a President, itshould be remembered that the EU already had three Presidents: thePresidents of the Commission, the Council and the Parliamentrespectively. The treaty adds a new figurehead but with limited legalpowers. The new President will not possess executive powers akin to a USor French President. Indeed the unfortunate appearance of horse-tradingregarding the appointment of Mr. Van Rompuy has further emasculatedthe new role. The European Commission president, who has a wholetreaty of legal powers, remains a more significant role legally.

The main institutional innovation is the creation of the new Ministerof Foreign Affairs, elected by the European Council, who will beresponsible for the representation of the Union on the internationalscene. This function will merge the previous tasks of the HighRepresentative for the Common Foreign and Security Policy with those ofthe Commissioner for External Relations. The Minister will be ‘double-hatted’ in that she will hold a seat in both the Council (as Chair of theForeign Affairs Council) and the Commission (as one of its VicePresidents). Again, this is hoped to lead to a more co-ordinated approachin foreign policy. The Union’s newly acquired single legal personality willalso enable the Minister to play a more visible role in world affairs. TheMinister will be supported by a new European External Action Service,which will include seconded national diplomats and officials from theCouncil and the Commission.

However other innovations are of a greater significance legally thanthe creation of either of these two roles. The key legal innovations arelisted in the table below. Perhaps of greatest significance legally in itspotential impact is the incorporation of the Charter of FundamentalRights into EU law. The Charter will apply to all Member States when theyimplement Union law. The European Court of Justice (ECJ) will holdjurisdiction. The UK government is adamant that the UK specific protocolwill ensure that the Charter will not extend the powers of any court – UKor European – to strike down UK legislation or to create any greater socialor economic rights than are already provided in UK law. However it is verydifficult to see how this will work in practice.

It is right that the Charter does not apply to purely domestic law butthe reach of EU law into the domestic law of Member States isconsiderable and expanding. UK will not be able to isolate itself from

developments in other member states. It will not be able to simply ignorethe jurisprudence of the ECJ. History has shown that one cannot operatea two-tier system of rights within European law. The UK’s position willinevitably unravel in due course. In any event, one must also ask why theGovernment are so adamantly opposed to the application of these rightsin this country? It is strange to argue that one is protecting the rights ofthe UK public by denying them access to further rights. The episodecontinues the government’s failure to advocate the importance offundamental rights and the revitalising effect they can have on the UK’sconstitutional tradition.

The incorporation of the Fundamental Charter of Rights may wellprove to be the most significant and positive innovation of the LisbonTreaty. The impact upon the domestic law of all member states is yet tobe seen but should not be underestimated.

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Student Law Review 2010 • Volume 5910

Student Law Review

THE LISBONTREATYby Graham Arnold, barrister, Farringdon Chambers

Summary of key innovations of Lisbon Treaty• Single treaty merging the three ‘pillars’ and creating one legal

personality.• Simplification of legal instruments.• Clarification of competences and strengthening of principle of

subsidiarity in areas of ‘shared’ competence.• Clarifies the respective roles of the European Parliament, the

Council and the Commission.• ‘New’ President of the Commission with enhanced mandate.• ‘New’ permanent President of the European Council.• New extended ‘team’ presidency of the Council of Ministers.• Increased role for European Parliament through general

application of ‘legislative procedure’.• Increased transparency and democracy – ‘legislative’ Council to

meet in Public and Commission to consult more widely withcitizens and regional representative bodies.

• Right of one million citizens to ‘invite’ Commission to submitproposal to the Council.

• New method for calculating qualified majority voting.• Increased qualified majority voting and restriction of national

vetoes in areas of ‘freedom, security and justice’.• Emergency brakes on decisions in areas of judicial cooperation in

criminal matters.• New passarelle clause allowing ‘fast track’ reduction of unanimity

requirement to qualified majority.• Provisions for external relations in the form of a Common Foreign

and Security Policy rewritten – essentially unchanged but,• New Union Minister of Foreign Affairs to strengthen Union’s role

in world affairs and encourage greater cooperation in foreignpolicy across Member States.

• The Charter of Fundamental Rights made legally binding inapplication of EU law.

• New ‘exit’ clause

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12 Student Law Review 2009 • Volume 58

THE UK has one of the largest DNA databases in theworld. The National DNA Database (NDNAD) holdssamples for 5.2% of the UK population. One might

compare that with 0.5% in the USA. The database hasexpanded significantly since it was set up in 1995. Theissues regarding the over representation of certain ethnicgroups, particularly young black men, are well known.

The development of the database has occurred without anyclear statutory basis or uniform protections for individuals.England, Wales and Northern Ireland are the only jurisdictionswithin the Council of Europe which allow for the indefiniteretention of fingerprints and DNA material of any person of anyage suspected of any ‘recordable’1 offence, regardless of chargeor conviction. In Scotland, DNA samples taken when people arearrested must be destroyed if the individual is not charged orconvicted.

A Grand Chamber of the European Court of Human Rights(ECtHR) unanimously held that this blanket approach of retainingDNA material was incompatible with the right to privacy underthe European Convention on Human Rights (ECHR).2 Despitedomestic judgments in the government’s favour,3 the Strasbourgjudgment was widely anticipated and should not have taken thegovernment by surprise. International human rights law is muchstronger on rights to privacy.

The facts of the ECtHR case are that the applicants, S. andMichael Marper, are both British nationals, who were born in1989 and 1963 respectively. They live in Sheffield. The caseconcerned the retention by the authorities of the applicants’fingerprints, cellular samples and DNA profiles after criminalproceedings against them were terminated by an acquittal andwere discontinued respectively.

On 19 January 2001 S. was arrested and charged withattempted robbery. He was aged eleven at the time. Hisfingerprints and DNA samples were taken. He was acquitted on14 June 2001. Mr Marper was arrested on 13 March 2001 andcharged with harassment of his partner. His fingerprints and DNAsamples were taken. On 14 June 2001 the case was formallydiscontinued as he and his partner had become reconciled. Oncethe proceedings had been terminated, both applicantsunsuccessfully requested that their fingerprints, DNA samples andprofiles be destroyed. The information had been stored on thebasis of a law authorising its retention without limit of time.

The decision of the ECtHRThe court noted that cellular samples contained much sensitiveinformation about an individual, including information about hisor her health. Given their nature, the retention of cellular samplesper se had to be regarded as interfering with the right to respectfor the private lives of the individuals concerned under Article 8.The retention of the applicants’ fingerprints also gave rise toimportant private-life concerns and accordingly constituted a

similar, albeit lesser, interference.The Court accepted that the retention of fingerprint and DNA

information pursued a legitimate purpose, namely the detectionof criminals. The interests of the individuals concerned and thecommunity as a whole in protecting personal data, includingfingerprint and DNA information, could be outweighed by thelegitimate interest in the prevention of crime. However, theintrinsically private character of this information required thecourt to exercise careful scrutiny of any state measure authorisingits retention and use by the authorities without the consent of theperson concerned.

The court was struck by the blanket and indiscriminate natureof the power of retention. In particular, the data in question couldbe retained irrespective of the nature or gravity of the offencewith which the individual was originally suspected or of the ageof the suspected offender; the retention was not time-limited;and there existed only limited possibilities for an acquittedindividual to have the data removed from the nationwidedatabase.

In conclusion, the Court found that the blanket andindiscriminate nature of the powers of retention of thefingerprints, cellular samples and DNA profiles of personssuspected but not convicted of offences, as applied in the case ofthe present applicants, failed to strike a fair balance between thecompeting public and private interests, and that the respondentState had overstepped any acceptable margin of appreciation inthis regard. Accordingly, the retention in question constituted adisproportionate interference with the applicants’ right to respectfor private life and could not be regarded as necessary in ademocratic society.4

The government’s responseIn response the government has introduced provisions in thecurrent Policing and Crime Bill enabling it to make regulations forretention of samples and profiles.5 In advance of deciding therelevant regulations a consultation process was initiated by agovernment paper, Keeping The Right People On The DNADatabase. The paper sets out the government’s proposedresponse to Marper subject to consultation.

The government’s central proposal is to remove the profiles ofthose who have not been convicted or charged of any offencebut only after six and twelve years according to the offence forwhich they were arrested.6 Most European countries removeprofiles immediately or within a short period in thesecircumstances. What is the government’s justification for thecontinued retention? Reference is made in the consultation paperto research prepared by the Jill Dando Institute that advances theproposition that those arrested but not charged of an offencehave an approximately equal likelihood of future offending tothose who are convicted of an offence. The consultation paperdoes concede that this “is obviously a controversial assertion”. It

A presumption of guilt: thegovernment’s response to S and Marper v UKby Graham Arnold, Barrister, Farringdon Chambers

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is worse than that, it is based on research that is embarrassinglyflimsy.7 It also reveals a dangerous disregard of the presumptionof innocence. Where the figures of 6 and 12 years come from isunclear.

Any departure from the expectation that samples will bedestroyed and profiles removed from the database immediatelyupon acquittal, discharge or release from arrest has to bejustified. That is the obvious effect of the decision in Marper. Thegovernment appears to have missed this point. The proposedretention periods are not justified and fail the test ofproportionality. Unless the government reconsider the proposalsfurther legal challenges will inevitably follow.

There are some positives in the government proposals. Thegovernment proposes destroying all the physical DNA samplesheld on the database. Only the record of DNA profiles will bekept, as this is all that is needed for investigative purposes.

The government also proposes in future that volunteers’profiles and samples will not be entered onto the National DNAdatabase. Namely, volunteers where there is a mass screening ina geographical area of a particular crime. Such samples will onlybe matched against the particular crime scene samples. Howeverit is unclear whether existing volunteer profiles will be removedfrom the database. Plainly they should be as there can be nolawful basis for their retention.

A further concession from the government is the acceptancethat DNA taken from all children under the age of ten should beremoved from the National DNA Database. The consultationstates that all such profiles have now been removed from thedatabase. Plainly such samples should never have been on thedatabase.

However concerns outweigh the positives. No considerationhas been given to deleting the DNA profiles of adults convictedof minor offences. The approach taken towards children fails toconsider the harmful effect on minors of being on the NationalDNA Database.

One most also express concern that the basis for retention isnot dealt with by way primary legislation but instead is left toregulations to be advanced in due course by the Home Office byway of secondary legislation. The result is that parliamentarydebate will be severely curtailed on a matter of serious publicconcern.

Finally, although not an issue arising from the ECtHRjudgment, entirely missing from the consultation paper is anyconcern expressed about the overrepresentation of certain ethnicminorities. The over-representation of black people on the DNADatabase is well known, but it is worth repeating the figures:8

� 27% of the entire black population is on the NDNAD.� 42% of the male black population is on the NDNAD.� 77% of young black men are on the NDNAD.� 9% of the Asian population is on the NDNAD.� 6% of the white population is on the NDNAD.� 57% of innocent DNA samples taken in London are from

the black population.

According to GeneWatch UK, 23% of all black children aged10-17 are on the NDNAD.

One might assume from such figures that there is a greaterprevalence of criminality in the black community. In fact HomeOffice figures reveal black people have lower offending rates thantheir white counterparts.9

In short the government’s response to the ECtHR judgmenthas been narrow minded and does little to alleviate profoundconcerns about the development of the database. There is noproper justification given for retaining DNA samples of innocentpeople, and the consultation papers lack any consideration of thedatabase’s effect on race equality or community cohesion.

Notes1 See the definition in s 118 of PACE and the National Police Records

(Recordable Offences) Regulations 2000. It would include such minoroffences as drunkenness in a public place, begging and riding abicycle without the owner’s consent.

2 Judgment of the Grand Chamber of the European Court of HumanRights, 4/12/08, in the case of S. and Marper v. the United Kingdom(application nos. 30562/04 and 30566/04).

3 See Regina v. Chief Constable of South Yorkshire Police ex p. LS andMarper [2004] UKHL 39.

4 See summary of decision at http://echr.coe.int/echr/en/hudoc5 See clauses 96-98 of the Policing and Crime Bill (before House of

Lords as at 1/9/09).6 Six years following arrest for most offences and 12 years after arrest

for ‘serious violent or sexual or terrorist-related offence. 7 See the trenchant attack on the quality of this research in Liberty’s

response to the consultation paper. (http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml).

8 Source: http://www.theyworkforyou.com/debates/?id=2008-02-29b.1425.0

9 http://www.homeoffice.gov.uk/rds/pdfs05/rdsolr3305.pdf

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IN one of the most comprehensive reports on counter-terrorism and human rights to date a panel of eminentinternational judges and lawyers warns that the

international legal order based on respect for human rights isin jeopardy.

The report, ‘Assessing Damage, Urging Action’1, was preparedby the Eminent Jurists Panel on Terrorism, Counter-Terrorism andHuman Rights, an independent panel convened by the InternationalCommission of Jurists (ICJ). The panel considered evidence over athree-year period in sixteen hearings covering more than fortycountries in all regions of the world.

The report illustrates the extent to which the responses to theevents of 11 September 2001 have changed the legal landscape incountries around the world. Throughout the report the panelexpresses dismay that fundamental principles of internationalhuman rights and humanitarian law are being disregarded, not onlyby regimes whose record for doing so is well known, but also byliberal democracies formerly at the forefront of promoting andprotecting human rights.

An entire chapter is devoted to the ‘war paradigm’ that hasformed the basis of the counter-terrorism policy adopted by theUnited States (US) administration. The US has relied on its claim tobe fighting a ‘war on terror’ to justify the jettisoning of fundamentalprinciples of human rights. Amongst many criticisms, reference ismade to the condoned use of torture and other prescribedinterrogation techniques, extraordinary renditions, secret detentionwithout charge or trial, an expanding use of intelligence serviceswithout public accountability and of course the use of the militarydetention centre at Guantánamo Bay. The panel exposes the shortsightedness and misconceptions underlying the US’s approach.What is made clear is the real damage being done not only to thecountry’s reputation, but to the international legal order as well. Thepanel emphasises that the US must play a leadership role in theinternational community and calls upon the incoming USadministration to reverse the policies adopted and resume aleadership role in promoting and upholding human rights.

The Panel gives a stark warning that “the international legalorder based on respect for human rights, built up painstakinglyduring the second half of the last century, is in jeopardy” and urgesthat “the present political climate may provide one of the lastchances for a concerted international effort to take remedialmeasures and restore long-standing international norms.”

In introducing the report, Arthur Chaskalson, the Chair of thePanel, and former Chief Justice of South Africa, remarked,

“In the course of this inquiry, we have been shocked by theextent of the damage done over the past seven years byexcessive or abusive counter-terrorism measures in a wide rangeof countries around the world. Many governments, ignoring thelessons of history, have allowed themselves to be rushed intohasty responses to terrorism that have undermined cherishedvalues and violated human rights. The result is a serious threatto the integrity of the international human rights legalframework.”

The panel’s findingsIn its findings, the panel acknowledges that states have a legal duty tocounter the real terrorist threats posed and that there are some newaspects to the current situation, mostly due to technological advancesavailable to both terrorists and those involved in counter-terrorism.However the Panel found nothing so qualitatively and quantitativelydifferent that justified a departure from previously agreed norms.

The panel points out that the framework of international law isbeing seriously undermined by states reneging on their treaty orcustomary law obligations. Of particular concern is the fact that theerosion of such principles is being led by liberal democratic states withlong histories of developing and protecting such principles. Specificallythe panel rejects the claim that any ‘war’ on terror excuses states fromabiding by international human rights law or, in actual war conflicts,from abiding by international humanitarian law (laws of war). Thepanel expresses alarm at the extent to which representatives from theUS administration sought to make such justifications in hearingsbefore it. The point is made that governments in other parts of theworld are justifying their own wrongdoing by comparisons with theUS.

The panel concludes that many states have fallen into a trap setby the terrorists. Ignoring lessons from the past, some states haveallowed themselves to be rushed into hasty responses, introducing anarray of measures which are undermining the international legalframework carefully developed since World War II. A chapter of thereport is devoted to lessons from the past and to the direconsequences for those societies in which such 'short termist'approaches were employed previously. In an example close to home,the panel referred to evidence taken at hearings in Northern Irelandwhere such policies as ‘internment’ were described by senior armyofficers and government ministers as an “unmitigated disaster”. Thepanel also notes how frequently states have characterised past threatsthey faced as exceptional and unprecedented in order to justifyexceptional measures. This doctrine of “exceptionalism” risksjustifying unacceptable measures and can blind States to learningfrom the past.

Furthermore the panel regards many of the policies adopted asencouraging an “us and them” approach. Such policies havealienated those communities whose very support is essential forsuccessful counter-terrorism action. At times of crisis, unpopular orminority groups are easily singled out for harassment and repression,and the Panel records evidence of worrying trends in this regard. ThePanel stresses the need to strengthen not weaken civil society so as tomore effectively counter terrorism.

The panel also found that intelligence agencies around the worldhave acquired new powers, such as powers of detention and arrest,but legal and political accountability have not kept pace. Furthermorethe panel found that a culture of secrecy is becoming pervasive in thename of countering terrorism. The panel reminds states that criminallaw should be the primary vehicle to be used to address terrorism withjustice not only being done, but also being seen to be done.

The panel notes that there has been a rash of ill and broadlydefined anti-terrorism measures which have encroached upon

Time for change:Human rights andcounter terrorism policiesby Graham Arnold, Barrister, Farringdon Chambers

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fundamental rights in an unprecedented way. Such measures havefrequently interfered with the rights of genuinely innocent people ina way that would not otherwise have been possible. One recalls thecase of the 82-year-old Walter Wolfgang. Mr. Wolfgang had fled toBritain as a Jewish refugee from the Nazis, and spent a lifetime as apeace activist and Labour Party member. In the audience at the annualLabour Party conference in 2005, Mr. Wolfgang shouted the word“nonsense” at Foreign Secretary Jack Straw during his speech aboutBritish policy in Iraq. Stewards bundled Wolfgang out, and the policethen detained Mr. Wolfgang under Section 44 of the Terrorism Act2000, (a police power to stop and search people without any need toshow that they have a reasonable suspicion of an offence beingcommitted).

The panel also warns of the risk of seepage of special laws intonormal legal procedures and practices. Extraordinary measures toaddress terrorism, such as reliance on secret information that isdifficult to challenge, are already seeping into the normal functioningof the state and the ordinary justice system, with long-termconsequences for the rule of law and respect for human rights.

Although a close ally of the US, the UK has not adopted the ‘war’on terror paradigm to justify exceptional measures. Indeed the formerDPP, Sir Ken MacDonald stated:

“…London is not a battlefield. Those innocents who weremurdered on July 7 2005 were not victims of war […]. We needto be very clear about this. On the streets of London, there is nosuch thing as a “war on terror”, just as there can be no such thingas a “war on drugs”. […] The fight against terrorism on the streetsof Britain is not a war. It is the prevention of crime, theenforcement of our laws and the winning of justice for thosedamaged by their infringement.”However the report does raise questions regarding the alleged

complicity of numerous states, including the UK, in practices adoptedby US intelligence agencies, such as extraordinary renditions.

There are other specific concerns about counter terrorist policiesin the UK. There are the concerns about hasty and broad ‘anti-terror’legislation enacted by the UK Parliament and the use of extended pre-trial detention in ‘terrorist’ cases. There are also serious questionsraised in the report about the long-term use of ‘control orders’, ameasure now copied around the world. The evidentiary standardrequired for the orders is low, that of ‘reasonable suspicion’, and thereis a limited ability to test the underlying intelligence information. It iswarned that use of such exceptional measures in the long termseriously risks undermining the rule of law. Other concerns specific tothe UK raised by the report include the undermining of the principleof non-refoulement, (which prohibits States from deporting someoneto a country where he or she might face a real risk of serious humanrights violations). The UK is criticised for its reliance upon ‘diplomaticassurances’ from the receiving state in deporting suspected terroriststo countries such as Jordan, Libya and Lebanon. The panel asserts thatsuch assurances cannot discharge a State from its duties under theprinciple of non-refoulement. There is also criticism of the use of ‘lists’of proscribed organisations and individuals suspected of involvementwith terrorism, which do not allow adequate opportunity to challengethe underlying allegations before a judicial body. These lists can haveextremely punitive and prejudicial consequences for the individualsaffected.

In any event there is much for liberal democracies to consider inthis report, not least for the UK. Of encouragement, the new USadministration has signalled a change of direction in its counterterrorist policies and there have been similar pronouncements madeby other national leaders recognising the need for change. The hopeis that actual changes in policy and perception will follow and that alldemocratic governments will translate the prescriptions and lessons ofthe report into concrete action.

Notes 1 Available at http://www.icj.org/

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Constitutional Law


IT has been over five years since the Governmentannounced its intention to create a Supreme Court entirelyremoved from the legislative House of Lords. The reality is

now close and the court is scheduled to be open for businessin October 2009. The new court will stand counter-posed tothe Houses of Parliament across Parliament Square in theformer Middlesex Guildhall Crown court.

The reasons behind the reform are obvious. To ensure judicialindependence and impartiality, both in reality and in appearance,the highest court in the land should no longer sit as a committeeof a legislative body. In a modern system of government alegislative body should not exercise judicial power, save in verylimited circumstances.1 Old arguments that the arrangementsworked well and that judicial independence was jealously guardedby convention could not survive modern developments such as theincorporation of the European Convention on Human Rights byway of the Human Rights Act (HRA) and the ongoing reforms ofthe legislative House of Lords towards an eventual elected secondchamber. There is no need to enter into complex arguments abouthow the British constitutional arrangement can or cannot satisfythe doctrine of the separation of powers. The situation, as with theposition of the Lord Chancellor, was simply anachronistic and hadto change.

The Constitutional Reform Act makes provision for thejurisdiction of the Supreme Court, which is that of the currentAppellate Committee of the House of Lords together with thejurisdiction of the Judicial Committee of the Privy Council (JCPC) inrelation to devolution issues. The JCPC will retain itsCommonwealth jurisdiction and will remain separate from theSupreme Court. However the JCPC will move from Downing Streetto sit in the Middlesex Guildhall along with the Supreme Court.

There is little controversy in the model chosen. Other possiblemodels more radically changing the jurisdiction of the highest courtwere dismissed early on in consultations.2 Of course mention of asupreme court calls to mind the best-known model in the UnitedStates and that court’s power to strike down congressionallegislation on the basis it conflicted with the constitution. Howeverthat power could never be claimed within the British system withits doctrine of parliamentary sovereignty and the absence in anyevent of an entrenched constitution.

Aside from the jurisdiction of the new court, there are otherchanges of interest. There is a move towards greater transparencyin the appointments’ process to the court with provision under the2005 Act for a selection commission. All existing law lords willbecome justices of the court when it opens however three lawlords are due for retirement in 2009. The Commission has recentlyinvited applications for their replacement via newspaperadvertisements. Also of importance is the promise of greater legaland secretarial staffing to assist the justices. There has beenfrequent criticism in the past of deficiencies in this regard whencompared to other supreme courts in developed democracies.Much is also promised in the way of better facilities includingmodern technology and communications support at the newbuilding. There is the intention to routinely broadcast footage ofjudgments and possibly, subject to further consultation, of thehearings.

A new beginning?Aside from these practical developments, the fundamentalquestion is whether the establishment of the Supreme Court willrepresent a new beginning for judicial independence and authority.

It has been said by many, including existing law lords, that themove out of Parliament is desirable not because there is any realissue that the law lords lacked independence or impartiality or thattheir judgments were in any way fettered but because thearrangement gave rise to an appearance or risk in the public’s eyethat that might be the case. But is it only a matter of appearance?

The law lords may sit within their own committee room whenconsidering appeals but they remain full members of the House ofLords with a power to speak and vote on any business (althoughthey seldom do). They give their judgments in the main chamberwith the President sitting on the woolsack. They work on theircases in corridors just along from other members’ and committeerooms. In short they are colleagues. Obviously there is interactionwith other members of the legislature and that must inevitablyinfluence their decisions. Some might argue that such influence isfor the better but that is not the point, their judgments must beentirely independent. Judges can take account of the views of the

No more hobnobbing for the justicesby Graham Arnold, Barrister, Farringdon Chambers


Constitutional Law


executive and the legislature but not from within.It is also said that the law lords in recent times, particularly

under Lord Bingham’s tenure as President, have demonstrated aparticularly liberal and activist approach in protecting civil libertiesagainst various onslaughts from the executive and legislature. Anexample often given is A & others where the House of Lordsdeclared unlawful the power given to the Home Secretary by PartIV of the Anti-Terrorism, Crime and Security Act 2001 to detainforeign nationals indefinitely without charge.3 It is said that suchdecisions clearly demonstrate the law lords’ independence andability to form judgments free from influence of the legislature. Butis that really so?

The judgment in A was more a confrontation with theCommons and the executive who of course sit in ‘the other place’and less a confrontation with legislative peers. In fact the originalprovisions met with considerable opposition during their legislativepassage through the House of Lords. Many peers would havesupported the law lords’ judgments in the 2004 case. Hence thecase does not really say anything about the law lords’ judicialindependence or willingness to strike out against their peers in thelegislature in the name of constitutional principle.

Is there another view that in fact the judicial House of Lords hasbeen too reticent in challenging the legislature in recent times?There has been a flood of legislation that has eroded civil liberties.One thinks of all the other anti terrorism legislation, the ID cardlegislation and the extraordinary raft of legislation in areas ofcriminal justice and immigration. Meanwhile Britain has become amuch criticised surveillance society with a dwindling sense of itsliberal traditions.

Has the court taken all its opportunities to challenge thesedevelopments? Of course the court’s powers are limited by asovereign parliament but the law lords have significant powers toprotect constitutional rights. The court may limit the ambit of

‘broad brush’ legislation though interpretation and wherenecessary through the issue of declarations of incompatibility underthe HRA. The latter is a power to be used sparingly but surely notas sparingly as the law lords’ have,4 particularly where legislationhas swept away centuries of common law principles andprotections for the individual.

Some have also expressed concern that the law lords haveshown at times too great a deference to the exigencies ofgovernment at the expense of maintaining legal principle. A recentexample was the BAE bribery case5 where the court found that theDirector of the Serious Fraud Office had acted lawfully when hehalted a prosecution for bribery in the face of blatant and uglythreats from a member of Saudi Arabian dynasty. That reversed thedecision of the Court of the Appeal. Perhaps the lower court feltmore comfortable asserting the principle of the rule of law awayfrom the pressures of government.

The clear divide across Parliament Square may provide a newopportunity for a more activist and assertive court in challengingthese erosions of constitutional principles and protections for theindividual.

Notes 1 The ‘Queen-in-Parliament’ regards itself symbolically as the highest

court in the realm and retains for itself a limited jurisdiction (beyondthe appellate jurisdiction of the law lords and the privy council) overcertain matters relating to contempt of its own proceedings and tomembers’ privileges and immunities.

2 Lord Bingham considered the various potential models in his lectureto the Constitution Unit in 2002, A New Supreme Court for theUnited Kingdom.

3 A v Secretary of State for the Home Department [2005] 2 AC 684 There have been 3 declarations by the House of Lords (between 2001

and 2006).5 R (on the application of Corner House Research & Ors v Director Of

The Serious Fraud Office [2008] UKHL 60

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Constitutional Law


Case ClosedR (on the application of (1) CORNER HOUSERESEARCH & ORS v DIRECTOR OF THE SERIOUSFRAUD OFFICE [2008] UKHL 60

by Graham Arnold, Barrister, FarringdonChambers

The Serious Fraud Office (SFO) began investigations in 2004 intoallegations of bribery by BAE Systems plc (BAE) in relation to the Al-Yamamah military aircraft contracts with the Kingdom of SaudiArabia. In December 2006 the Director of the SFO announced thathe was ending the SFO’s investigation.

It is an independent decision for the Director of SFO whether ornot to institute or discontinue such proceedings in relation toserious fraud. In performing his functions the Director is subject tothe superintendence of the Attorney General but it remains hisdecision alone whether to prosecute, (section 1 of the CriminalJustice Act 1987). The particular offence under consideration wasprovided by sections 108-110 of the Anti-terrorism, Crime andSecurity Act 2001, which prohibits corrupt payments or bribes to apublic officer abroad. The enactment of these sections gave effectto the UK’s obligation under the OECD Convention on CombatingBribery of Foreign Public Officials in International BusinessTransactions (1997) (OECD Convention).

Earlier in the investigation, in late 2005, BAE sought topersuade the Attorney General and the SFO to stop theinvestigation on the grounds that its continued investigation wouldbe contrary to the public interest in that it would adversely affectrelations between the United Kingdom and Saudi Arabia andprevent the United Kingdom securing what it described as thelargest export contract in the last decade. Despite theserepresentations and further representations from governmentministers, the Attorney General and the Director agreed theinvestigation should continue.

In resisting these representations The Director reminded bothBAE and the government of Article 5 of the OECD Convention,which provides that:

“Investigation and prosecution of the bribery of a foreignpublic official shall be subject to the applicable rules andprinciples of each Party. They shall not be influenced byconsiderations of national economic interest, the potentialeffect upon relations with another State or the identity of thenatural or legal persons involved.”

The investigation continued until July 2006 when the SFO wasabout to obtain access to Swiss bank accounts relating to theinvestigation. Prince Bandar, National Security Adviser to theKingdom of Saudi Arabia, reacted to this by making a specificthreat to the Prime Minister’s Chief of Staff, Jonathan Powell thatif the investigation was not stopped, there would be no contractfor the export of Typhoon aircraft and the previous closeintelligence and diplomatic relationship would cease. Prince Bandarwas himself alleged to be the beneficiary of very large, allegedlycorrupt, payments from BAE, which were to form part of the SFO’sinvestigation.

Ministers advised the Attorney General and the Director that ifthe investigation continued those threats would be carried out; theconsequences would be grave, both for the arms trade and for thesafety of British citizens and service personnel. The Director himselfhad a number of meetings with the ambassador to Saudi Arabia,who told him that “British lives on British streets” would be at riskif Saudi Arabia carried out its threat. The Prime Minister himselfmade direct representations to the Attorney General on 8

December 2006. In the light of what the Director regarded as thegrave risk to life, if the threat was carried out, the Director decidedto stop the investigation on 14 December 2006.

The High Court judgment: [2008] EWHC 714 (Admin)Corner House Research sought judicial review of the Director’sdecision. Corner House is a non-profit making organisation thatconducts research, education and campaigns in relation to overseascorruption and the role of the United Kingdom in combatingbribery.

Two principal grounds in the claimant’s case emerged. Firstly,that it was unlawful for the Director to accede to the type of threatmade by the Saudi official, such conduct being contrary to theconstitutional principle of the rule of law. Secondly, it wascontended that the Director had misdirected himself and took intoaccount irrelevant considerations by misinterpreting Article 5 of theOECD.

The claimant maintained that the court had jurisdiction toconsider the latter ground, despite the fact that Convention is aninternational instrument that does not form part of English law. Itwas argued that where a decision-maker has expressly taken intoaccount an international treaty, as the Director had done in thiscase, the court may examine the correctness of the self-direction oradvice on which the decision is based, relying upon R v Secretary ofState for the Home Department ex p Launder [1997] 1 WLR 839).

In giving judgment for the claimant, Lord Justice Mosesaccepted that the Director’s discretion was of sufficient width toentitle him to take into account the risk to life and national securityin deciding whether to continue an investigation. There was noallegation of bad faith on the part of the Director. It was acceptedthat his decision was not influenced in any way by the explicitthreat to the economic interests of the UK, however much thatremains the public perception. His decision not to prosecute, it wasaccepted, was based solely on the implicit threat of the withdrawalof intelligence impacting directly upon the UK’s national security.

Furthermore the court took regard of the separation of powerbetween the executive and the courts, which requires the courtsnot to trespass on a decision affecting foreign policy:

“In a case touching foreign relations and national security theduty of decision on the merits is assigned to the elected arm ofgovernment. Even when the court ensures that theGovernment complies with formal requirements and actsrationally, the law accords to the executive an especially widemargin of discretion.”

However the court took exception in the particularcircumstances of this case where the threat involved the criminaljurisdiction of the UK. In these circumstances the issue was nolonger a matter only for Government, and the courts were boundto consider what steps they could take to preserve the integrity ofthe criminal justice system.

The court formulated a legal principle upon which such a threatmight be challenged in these terms: “that submission to a threat islawful only when it is demonstrated to a court that there was noalternative course open to the decision maker”. The court foundthat the Director had failed to do all that could reasonably be doneto resist the threat:

“He had submitted too readily because he, like the executive,concentrated on the effects which were feared should thethreat be carried out and not on how the threat might beresisted. No one, whether within this country or outside isentitled to interfere with the course of our justice. It is thefailure of Government and the defendant to bear that essentialprinciple in mind that justifies the intervention of this court.”

The director’s submission to the threat was therefore unlawful.As it was unnecessary, the court declined to rule on whether or

not the Director’s decision was compatible with Article 5 of the

Constitutional Law


OECD. However the court observed it would not have beenprecluded from considering the issue had it been necessary.

Director’s appeal to the House of LordsLord Bingham, giving the principal judgment, unequivocallyrejected the findings of the High Court regarding the unlawfulnessof the Director’s decision. He observed that the Director had takenthe decision to discontinue the investigation with extremereluctance. The Director had been confronted by an ugly andunwelcome threat. He had to decide what, if anything, he shoulddo. He had not surrendered his discretionary power of decision toany third party, although he had consulted the most expert sourceavailable to him in the person of the ambassador, and he hadconsulted the Attorney General, who had properly left the decisionto him.

The court rejected the principle formulated by the DivisionalCourt regarding unlawful submission to such threats (quotedabove), stating,

“… it distracts attention from what, applying well-settledprinciples of public law, was the right question: whether, indeciding that the public interest in pursuing an importantinvestigation into alleged bribery was outweighed by the publicinterest in protecting the lives of British citizens, the Directormade a decision outside the lawful bounds of the discretionentrusted to him by Parliament.”

Lord Bingham rejected the Divisional court’s finding that theDirector could have done other things to avert the threat. TheDirector and his colleagues had given considerable thought to thepossibility of persuading the Saudis to withdraw their threat, butthat was not, in the ambassador’s view, a viable course of action.In any event the Director was a prosecutor with no diplomaticaccess to representatives of the Government of Saudi Arabia andhad to rely on the expert assessments of others of theconsequences for national security.

As regards Article 5, the court observed that it was anunincorporated treaty provision which was not binding in domesticlaw. Had the Director chosen to ignore it, it could not have formedthe basis of a challenge to his decision. Although there areoccasions when the Court will decide questions as to the state’sobligations under unincorporated international law, this, forobvious reasons, is generally undesirable. There were nocompelling reasons to do so in this case.

Consequently the Director’s decision was one he was lawfullyentitled to make. Lord Bingham observed that it was doubtfulwhether a responsible decision-maker could have decidedotherwise on the facts before the Director.

CommentWhatever its legality, the Director’s decision to halt its investigationof BAE contracts with the Saudi government has seriouslyundermined Britain’s reputation in combating internationalcorruption. One must sympathise with the highly principledjudgment of the Divisional Court:

“We fear for the reputation of the administration of justice if itcan be perverted by a threat. Let it be accepted, as thedefendant’s grounds assert, that this was an exceptional case;how does it look if on the one occasion in recent memory, athreat is made to the administration of justice, the law buckles?

… Our courts and lawyers have the luxury and privilege ofcommon law and statutory protection against power whichthreatens the rule of law. All the more important, then, thatthey provide support and encouragement to those in a lesshappy position. How do they do so, if they endorse surrender,when in Uganda the courts are forced to resist when thosewhom they have released on bail are re-arrested on the court-room steps by armed agents of the executive, or when the

Chief Justices of Fiji and Pakistan are deposed by militaryrulers?”

Lord Bingham’s assessment that the Director’s approach to hisdecision represented no affront to the rule of law, if right, starklyillustrates the limits of the principle itself. The need for certaintyplainly underlies the House of Lords judgment – the courts willseldom, if ever, interfere to adjudicate upon decisions based uponnational security unless irrational on the face of it. We are in theworld of ‘realpolitik’.

The Law Lord’s judgment that the Director’s submission to sucha blatant and ugly threat falls within the “lawful bounds of thediscretion entrusted to him by Parliament” may be right in law, butshould cause great dismay, not least to any prospective lawyerhoping to wear shiny white armour.

The judgments of both courts should be read by allconstitutional law students, in hand with a copy of Lord Bingham’sown exemplary exposé The Rule of Law, [2007] CLJ 67 at 68.1

Notes 1 Transcript and audio format available at

http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php

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Constitutional Law


The controversy surrounding the ‘bugging’ of conversationsbetween a Member of Parliament and a prisoner at HMPWoodhill has brought a renewed focus upon covert surveillancein the UK. In particular upon the legislation and rules governingthe surveillance of confidential or legally privileged conversations.

In his recent report1 on the matter, the current SurveillanceCommissioner, Sir Christopher Rose, found that twoconversations were monitored between Sadiq Khan MP and a‘category A prisoner’, Babar Ahmad. The conversations tookplace on 21 May 2005 and 24 June 2006. However SirChristopher found that the monitoring of these conversationswas properly authorised and furthermore that none of those whoauthorised the monitoring knew at the time that he was an MP.Mr Khan’s original request to visit Mr Ahmad had been madeprior to his becoming an MP and was made on the basis that hewas a long term friend. The report indicates that had Mr Khansubsequently informed the prison authorities that he was an MP,then as a matter of policy he would not have been monitored,(conversations with MPs and legal advisors are normally excludedfrom surveillance operations at prisons).

However the report leaves a number of questionsunanswered, in particular why was the monitoring continued on24 June 2006 when by that stage officers involved in the

surveillance knew that Mr Khan was an MP? This fact was evidentfrom the conversation on 21 May. Surely at that stage the codesof practice issued under the Regulation of Investigatory PowersAct 2000 (RIPA) at least required a review of the earlierauthorisation. However Sir Christopher found no impropriety orbreach of the codes. The result is that many will question the levelof scrutiny in this review, which Sir Christopher himself admittedlacked the rigour of a court room cross examination.

It should be pointed out that there is nothing in the currentlegislative framework that prohibits the surveillance of MPs orlegal advisors. However in relation to legally privilegedconversations, the relevant code of practice2 provides:

3.5 The 2000 Act does not provide any special protectionfor legally privileged information. Nevertheless, suchinformation is particularly sensitive ... Accordingly, actionwhich may lead to such information being acquired issubject to additional safeguards under this code.

3.6 In general, an application for surveillance which islikely to result in the acquisition of legally privilegedinformation should only be made in exceptional andcompelling circumstances.

As regards surveillance of MPs, there is also the ‘WilsonDoctrine’. That doctrine dictates that there should be nointerception of MP’s communications; in particular their phonecalls should not be ‘tapped’. The current Prime Minister recentlyendorsed the doctrine rejecting the view of the currentInterception Commissioner, Sir Paul Kennedy, that it was “totallyindefensible”3. In any event, both Sir Christopher’s report and thegovernment have expressed the view that the bugging of theconversations involving Mr Khan did not fall within the doctrineas it involved bugging as opposed to ‘phone tapping’. Thisartificial distinction is but one example of the uncertainty in thecurrent legal framework governing surveillance.

It is reassuring that Sir Christopher’s report found “no trace inrecent years in prison records or elsewhere of any person knownto be a Member of Parliament having been monitored during aprison visit” and that, “since 2005 at least, there have been noauthorities for directed surveillance of legal visits in prisons inEngland and Wales to prisoners in custody in relation to terroristor other criminal matters.”

However for the public at large there remain serious concernsabout the complex and unsatisfactory legislative frameworksurrounding covert surveillance. Foremost of these concerns is thelack of independent judicial authorisation such as in the US. Thereis also the comparatively high number of authorisations and thelack of transparent and exhaustive scrutiny, as evidenced by thisreview.

The table on the following page summarises the legalframework authorising covert surveillance in the UK as providedby RIPA:

Notes1 Report on two visits by Sadiq Khan MP to Babar Ahmad at HMP

Woodhill, 20 February 2008

2 Covert Surveillance Code of Practice pursuant to s.71 RIPA.

3 Report of the Interception of Communications Commissioner for2006.

Covert Surveillance in the UKby Graham Arnold, Barrister

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Constitutional Law


AUTHORISATION OF SURVEILLANCE UNDER RIPA

THE INTERCEPTION OFCOMMUNICATIONS

Interception of contents of communicationssuch as phone calls, letters, emails.1

RIPA s.6(2)Includes Commissioner of Police of the

Metropolis, heads of intelligence agencies and Commissioners of HMRC.

Use of listening devices inprivate spaces such as

cars and homes.

RIPA s.6(2)Includes police, military

police, intelligenceagencies and HMRC.

Use of listening devices inpublic spaces.

RIPA Sch.1 Pt. I & IIPublic bodies ranging

from police and securityservices to local

authorities.

Undercover agents.

RIPA Sch.1 Pt. IPublic bodies ranging

from police and securityservices to local

authorities.

What?

Who mayapply?

COVERT SURVEILLANCE

INTRUSIVE DIRECTED HUMANCOMMUNICATIONS DATA

The record (but not the content) ofcommunications such as phone calls (includinglocation of use), emails and visits to websites.

RIPA s.25(1)Public bodies ranging from police and security

services to local authorities and emergencyservices (see SI. 2003/3172).

RIPA s.28Senior authorising figurewithin relevant body (see

SI. 2003/3171).

Who mayauthorise?

Codes ofPractice

Oversight

Is evidenceadmissiblein court?

RIPA s.7(1)Secretary of State by warrant, (normally

Home or Foreign Secretary).2

RIPA s.57Interception of CommunicationsCommissioner (a senior judge).

RIPA s.65Complaints to Investigatory Powers Tribunal.

NO (RIPA s.17)

http://security.homeoffice.gov.uk/ripa/publication-search/ripa-cop/

RIPA ss.32-36 Police/HMRC: Senior

authorising figure withinthe relevant body.

Except in urgent casesprior approval required

from SurveillanceCommissioner.

RIPA ss.41-42Intelligence services:Secretary of State by

warrant.

RIPA s.62Police/HMRC: Surveillance Commissioner (with power to quash intrusive surveillance

authorisations)

RIPA s.59Intelligence Services:

Intelligence Services Commissioner


YES

RIPA s.29Senior authorising figurewithin relevant body (see

SI. 2003/3171).

RIPA s.25(2)Senior authorising figure within relevant body

(see SI. 2003/3172).

RIPA s.57Interception of Communications Commissioner


RIPA s.5(3)If it is necessary—(a) in the interests of national security;(b) for the purpose of preventing or detectingserious crime;(c) for the purpose of safeguarding theeconomic well-being of the United Kingdom;or(d) for the purpose, in circumstancesappearing to the Secretary of State to beequivalent to those in which he would issuea warrant by virtue of paragraph (b), ofgiving effect to the provisions of anyinternational mutual assistance agreement.

RIPA s.32(3)if it is necessary—(a)in the interests ofnational security;(b) for the purpose ofpreventing or detectingserious crime; or(c) in the interests ofthe economic well-being of the UnitedKingdom.

RIPA s.28(3) & 29(3)if it is necessary—(a) in the interests of national security;(b) for the purpose of preventing or detecting crime orof preventing disorder;(c) in the interests of the economic well-being of theUnited Kingdom;(d) in the interests of public safety;(e) for the purpose of protecting public health;(f) for the purpose of assessing or collecting any tax,duty, levy or other imposition, contribution or chargepayable to a government department; or(g) for any purpose (not falling within paragraphs (a) to(f)) which is specified for the purposes of this subsectionby an order made by the Secretary of State.

RIPA s.22(3)As per RIPA s.28(3) & s.29(3) with theaddition of:

(-) for the purpose, in an emergency, ofpreventing death or injury or any damage toa person’s physical or mental health, or ofmitigating any injury or damage to aperson’s physical or mental health;

On whatbasis?

1 Note interceptions of communications at prisons is governed separately by Prison Act 1952 where in some cases (Cat A prisoners) interception is mandatory. 2 Note where one party to communication consents to an interception, a warrant is not required and only the lower safeguards for “directed surveillance” apply.

05 CONSTITUTIONAL LAW 10/4/08 9:06 AM Page 15 Neil's G4 Neil's G4: WORK FOLDER:SLR V54:

On 19 October 2007 at Lisbon European Union leaders finally reached agreement on a major reform treaty addressingthe institutional and structural organization of the 27-memberEU. The treaty (to be known as the Lisbon Treaty) was formallysigned on 13 December. If ratified it is due to come into force in 2009.

One of the major reforms of the new treaty will be theincorporation of the Charter of Fundamental Rights into EU law.Article 6 of the draft treaty provides that:

The Union recognises the rights, freedoms and principles setout in the Charter of Fundamental Rights of 7 December2000, as adapted …, which shall have the same legal valueas the Treaties.

The provisions of the Charter shall not extend in any way thecompetences of the Union as defined in the Treaties.

Consequently the Charter will be given exactly the samestatus as all other treaty law although its application is expressly

limited to the implementation of EU law. However the UnitedKingdom, along with Poland, has negotiated an “opt out” fromthe binding legal effect of the Charter by way of a Protocol to thenew treaty. The Protocol, Article 1 provides:

The Charter does not extend the ability of the Court of Justiceof the European Union, or any court or tribunal of Poland orof the United Kingdom, to find that the laws, regulations oradministrative provisions, practices or action of Poland or ofthe United Kingdom are inconsistent with the fundamentalrights, freedoms and principles that it reaffirms.

The negotiation of this opt out, or ‘clarification’ as thegovernment prefers to call it, has been heralded as an importantsuccess for the UK. But why is it regarded as a success? Why ishaving fewer rights than our European neighbours a successfuloutcome?

Background to the CharterHuman rights have been an integral part of the EU since its

Charter of Fundamental Rights:What’s wrong with more rights?by Graham Arnold, Barrister

Constitutional Law


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Constitutional Law


inception but there had been a conspicuous absence of any formof declaration regarding such rights. After years of negotiationthe Charter finally addressed this omission in 2000. It sets out ina single text, for the first time in the European Union's history, thewhole range of civil, political, economic and social rights ofEuropean citizens. However despite the original intention tomake it legally binding, the Charter was merely a 'solemnproclamation' made on behalf of the EU’s institutions with nobinding legal effect.

In 2004 the question of the legal status of the Charter wasrevisited in the negotiations surrounding the ill-fatedconstitutional treaty. The proposal then, as now, was for theCharter to be given binding legal status. Following vigorousnegotiations by the UK, a number of limitations on its applicationwere inserted into the text in anticipation of its incorporation.These limitations effectively safeguard national sovereignty.Particularly relevant are the four articles at the end of the Charterthat define its scope and limitations, its field of application andthe level of protection afforded. At the time in 2004, havingnegotiated these limitations, Jack Straw told the House ofCommons that iincorporation of the charter into the treatieswould not increase the powers of the European Union. So why isan opt out now necessary?

Rights contained in the CharterThe Charter is relatively short and concisely drafted. The rights aredivided into six sections:

• Dignity

• Freedoms

• Equality

• Solidarity

• Citizens' rights

• Justice

The rights and principles expressed are based on fundamentalrights and freedoms for the most part already recognised by theEuropean Convention on Human Rights (ECHR), the Council ofEurope's Social Charter, the Community Charter of FundamentalSocial Rights of Workers and other international conventions towhich the European Union or its Member States are parties suchas the Universal Declaration of Human Rights.

The Charter does not merely restate these existing rights butin many cases extends them to a modern context. For example,the first chapter, titled Dignity, encompasses recognisable basicrights, such as the right to life, the prohibition of torture but also‘modern’ prohibitions on human trafficking, forced labour,human cloning, eugenics and the sale of body parts. There arealso ‘new’ rights not found explicitly in the ECHR such as freedomof information, freedom of the arts and sciences, rights forchildren and the elderly and a rather vague right to goodadministration by the institutions and bodies of the Union. Therealso some rights and principles under the title ‘justice’ whichpotentially expand upon existing protections in the ECHR such asthe explicit requirement for proportionality in criminal penaltiesand a right not to be tried twice for the same offence. The latterconflicts with the double jeopardy provisions of the CriminalJustice Act (CJA) 2003.

But it is the Chapter headed ‘Solidarity’ dealing with workers’rights that has caused the greatest controversy in the UK. Thereare workers’ rights to information and consultation, to protectionfrom unjustified dismissals, to fair and just working conditionsand rights to parental leave. But most has been made of the rightto strike, something that has never been recognised in UK law. (Inthe UK those who strike, whether officially or unofficially, are in

breach of their contracts of employment and are liable todismissal, though in reality few employers contemplate suchaction).

The impact of legal statusWhat will be the impact of incorporating these rights into EUlaw? Many fear that giving legal status to the charter will lead toa rise in unmeritorious claims in the courts for breach of these‘new’ rights. There is the fear that the European Court of Justice(ECJ) will use the Charter to overturn the rulings of the Britishcourts. There is the fear that 'social' and economic rights, such asthe right to strike, will bring an end to Britain's liberal andprofitable free market economy. But are these fears justified?

It is true that the charter goes beyond the ECHR in a numberof respects, some of which are mentioned above. But for themost part it restates rights and principles signed up to by the EUlong ago. There is no radical expansion of civil and political rightsin the Charter. In so far as there are new social and economicrights these contain numerous safeguards. And of course theCharter is only binding on EU’s institutions and member stateswhen they are applying EU law. For example they would not bindthe UK in the implementation and creation of national criminallegislation. Criminal law is not and cannot be a communitycompetence. Consequently no provision of the CJA 2003 will beset aside on account of the charter.

But what about perceived threats to the UK’s free economy?In the first place many of the social and economic rights arealready protected under EU and national law. There are theparticular concerns about the right to strike and the right to socialsecurity. However, the charter contains strict limits on theapplication of these rights. In the charter only the basic rights,such as the right to life and human dignity, are unqualified. Otherrights are guaranteed only 'in accordance with Union law andnational laws and practices'. Hence workers cannot rely on a rightto strike where national law provides against such a right. Onenotices immediately the difference with the qualifications placedupon rights in ECHR. In the Convention qualified rights may onlybe interfered with where such interference is justified asnecessary in a democratic society for purposes such as theinterests of national security or for the prevention of disorder orcrime. By contrast the restrictions in the Charter go much furtherand in effect prevent impingement on national sovereignty. Thecharter simply will not give rise to additional claims for positiveaction in the courts in matters of pay, social security, employmentor labour policy. The reality is the charter is so neutered that it islittle more than a political statement and it is difficult to see thepractical purpose of the government’s opt out. There will be nonew tidal wave of unmeritorious claims.

But the Charter nonetheless is an important politicalstatement of intent. There is an obvious historic importance in thedevelopment of a common stance on fundamental rights acrossthe Union particularly with its recent enlargement. The opt outwill not prevent the EU courts from developing case law roundthe Charter. The UK is effectively removing itself from the debateon the development of these fundamental principles.

The fact of the matter is that the opt out appears to be merepolitical posturing by the government in its efforts to avoid areferendum on the reform treaty. It serves no real juridicalpurpose and may be a serious political misjudgement. Theepisode continues the government’s failure to advocate theimportance of fundamental rights and the revitalising effect theycan have on the UK’s constitutional tradition. The significance ofthe UK’s opt out from the Charter will not be lost on those inpower in Moscow or Tehran.


In a statement to Parliament on 3 July 2007 the new PrimeMinister, Gordon Brown, announced proposals for a range ofconstitutional reforms. The proposals are set out in a Green Paper,The Governance of Britain.1

In the statement the Prime Minister expressed his hope for “anew British constitutional settlement that entrusts more power toParliament and the British people.” The proposals are said toaddress two fundamental questions: how to hold power moreaccountable and how to uphold and enhance the rights andresponsibilities of the citizen. There is an abundance of proposalsin the Green Paper; some of the most important are examinedbelow.

Prerogative powersThe first section of the Green Paper entitled ‘Limiting the powersof the executive’ provides the most eye-catching proposals. Thepaper proposes the surrender or limitation of powers in a numberof areas previously exercised under the royal prerogative by thePrime Minister or other members of the executive. Of the areasidentified in the paper the most significant are:

• the power of the executive to declare war and deployarmed forces;

• the power of the executive to ratify international treatieswithout decision by Parliament;

• the power to prorogue (request the dissolution of)Parliament.

Deployment of armed forcesThere are few governmental decisions more important than thedeployment of armed forces into conflict. Currently there is noformal requirement for the executive to seek Parliament’smandate before deploying troops. The government recognisesthe anachronism of this state of affairs.

There are two potential mechanisms by which Parliament’smandate could be sought in future. The House of CommonsPublic Administration Select Committee in its report Taming thePrerogative2 proposed the introduction of legislation to requireParliament’s mandate. By contrast, the House of LordsConstitution Committee in its report Waging War: Parliament’srole and responsibility3 concluded that legislation is not the bestroute and favoured the development of a parliamentaryconvention. Such a convention could be formalised by aresolution of the House of Commons with the same status asStanding Orders of the House. The Green Paper favours the latter but leaves open the possibility of future legislation. Thegovernment will undertake further consultation before bringingforward more detailed proposals for Parliament to consider.Whatever mechanism is chosen, the government makes plainthat it will need to retain sufficient powers to enable it to makedeployments without prior parliamentary approval for reasons ofurgency or necessary operational secrecy.

Ratification of international treatiesCurrently, the ratification of international treaties is a matter forthe executive alone acting under a royal prerogative power.Concerns have grown over the exercise of this power particularlyas the influence of international treaties has grown. Internationaltreaties were once restricted to high diplomacy and security butthey now involve vital economic, political and juridical matterswith profound effects on Britain and the world. Examples inrecent years have included the Statute of the InternationalCriminal Court and European Union accession treaties.

A Parliamentary convention, ‘the Ponsonby Rule’, has existedsince 1924 to ensure Parliament’s oversight over treatyratification. The convention requires the government to laybefore Parliament every treaty for 21 days after signature andbefore ratification. The convention has developed in recent timesto include a commitment to make time for debate if there is aformal demand from the opposition or another party. In a furtherrecent undertaking the government agreed that it wouldnormally provide the opportunity to debate any treaty involvingmajor political, military or diplomatic issues, if the relevant selectcommittee and the Liaison Committee so requested.

The proposal of the government is that this rule should beformalised and placed on a statutory footing. It is important tonote that the proposals fall short of a statutory requirement forParliament’s approval to be sought in advance of ratification.4

The power to dissolve ParliamentUnder the Parliament Act 1911 (amending the Septennial Act1715) Parliament is automatically dissolved at the end of a fiveyear term. At any time prior to that the Prime Minister can requestthe Monarch to exercise her prerogative power to dissolveParliament. Dissolution triggers a general election. The currentpower gives the Prime Minister significant control over Parliament.

Symbolically the residual power of the Monarch to dissolveParliament is perhaps the most important prerogative power andrepresents potentially the greatest source of controversy. Inmodern times no Monarch has sought to exercise the powerunless requested by the Prime Minister. Nonetheless thegovernment recognises that in modern times Parliament shouldno longer be subject to a power of dissolution without itsconsent. The proposal is that in future the Prime Minister shouldfirst seek the approval of Parliament before requesting dissolutionby the Monarch. It is envisaged that a constitutional conventionwill develop through precedent to that effect.

Reforms of other prerogative powersThe Prime Minister, as Minister for the Civil Service, currentlyexercises powers of control and appointment in relation to theCivil Service under the royal prerogative. The governmentproposes to restrict this power by codifying in statute certain coreprinciples of the Civil Service, which would include politicalneutrality and the ‘anonymity’ of ministerial advisors. It is alsoproposed that appointments in future would be made on meritfollowing fair and open competition.

Good Governanceby Graham Arnold, Barrister

Constitutional Law



Constitutional Law


The government also proposes a review of the role of theAttorney General who carries out various functions under theroyal prerogative relating to criminal proceedings. Thegovernment wishes to ensure that the office retains the public’sconfidence. The paper recognises the conflicts of interestinherent in the dual roles of the Attorney General both as thegovernment’s chief legal adviser and as guardian of the publicinterest in supervising prosecuting authorities.5

The paper also proposes limitations on the Prime Minister’sprerogative powers to make appointments to various public andecclesiastical offices and a greater degree of parliamentaryscrutiny over public appointments generally. These proposalscontinue the general trend away from direct ministerialinvolvement in public appointments already established byexisting commissions such as the independent JudicialAppointments Commission.

On the thorny issue of the granting of honours, thegovernment restates its commitment to a more transparentsystem where the Prime Minister’s involvement will be limited torubberstamping the recommendations of a central HonoursCommittee.

The government will also consider whether all otherremaining prerogative powers should, in the long term, becodified or brought under statutory control. Prerogatives to beexamined will include the power to grant pardons and remissionto prisoners and the power to issue passports. The Green Paperalso proposes the abolition of certain prerogative powers thathave no modern use, such as the Crown’s right to impress meninto the Royal Navy, or powers that have been made redundantby legislation, such as the guardianship of infants.

Other proposals in the Green PaperThere are a number of other proposals said to promote greateraccountability. These include a proposed tightening of theministerial code to ensure greater transparency on members’interests and the advice they receive. Also there are proposals forgreater transparency for the workings of the Intelligence andSecurity Committee. There are also proposed plans to simplify thereporting of government expenditure to Parliament and to limitthe pre-release of official statistics to ministers to 24 hours beforepublication.

A third section of the Green Paper entitled ‘Re-invigoratingour democracy’ contains a miscellany of proposals short on detailincluding a promise to continue with House of Lords reform.There is also a proposal to complete and publish a review of themultiple voting systems employed in the United Kingdom.

However there is no mention of a referendum on the votingsystem for the House of Commons, which was promised as longago as the 1997 Labour manifesto.

The final section of the Green Paper seeks to open up adebate on what it means to be British and proposes a ‘Britishstatement of values’. The government also proposes a debate onwhether a Bill of Rights is required to supplement the EuropeanConvention on Human Rights as incorporated into domestic lawby the Human Rights Act.

In its conclusion the Green Paper raises the prospect of themost fundamental change of all for the United Kingdom - thepossibility of a written constitution.

CommentThe proposals for the surrender of a number of importantprerogative powers to parliamentary oversight are both welcomeand long overdue. The many other measures proposed toimprove accountability and transparency are also important andliberalising reforms.

However it should be noted that none of the most important

prerogative powers would be abolished by these proposals. In thecase of the three principal powers considered above, theproposals are merely for conventions governing their use to bedeveloped. Only in the case of the ratification of treaties is itproposed that the existing convention should be put on astatutory footing. There are also concerns that many of the otherproposals lack any specific detail and merely foreshadow furtherconsultation without any commitment on the part of thegovernment. Reference is made to continuing House of Lords’reform and the review of voting systems but there are no specificproposals put forward in these areas of stalled reform.

It is clear that Gordon Brown wishes to signal a new style ofgovernment that will be more accountable and transparent thanhis predecessor’s. But what of the other major constitutionalconcern that has arisen under Tony Blair’s rule, the erosion ofindividual liberty? There is little in the government proposals thatrecognises that concern.

It is the extraordinary paradox of this Labour government thatit has carried out the largest programme of liberalisingconstitutional reforms in recent times - devolution, the HumanRights Act, the Freedom of Information Act and the first stagetowards a reformed House of Lords - while at the same time,under Tony Blair, the government has made the mostextraordinary assaults upon the freedom of the individual in theUnited Kingdom. Surveillance of society on an Orwellian scale,the removal of many judicial protections in criminal proceedingspreviously thought sacrosanct, limits on the freedom of speech,restrictions on movement, detention without trial, identity cardsand the creation of databases tracking us all throughout our lives.

The government proposals refer to the prospect of a Bill ofRights but the emphasis in the green paper is on responsibilitiesof the individual and the importance of public safety, the erosionof individual liberties is not mentioned or acknowledgedanywhere. The Green Paper appears to foreshadow legislation tofurther restrict rights rather than proclaim them. It would be quiteperverse to title legislation with that purpose a Bill of Rights.

The proposals to debate what it means to be British and toconsider a ‘British statement of values’ perhaps epitomises theunderlying approach here that causes many concern. A greathistoric tradition in the United Kingdom of protection for therights and freedoms of the individual is being eroded on the basisof simplistic fears and the ubiquitous fight against terrorism.Proposals calling for a greater sense of what it is to be Britishignore the fact that the British constitution has been built on theindividual’s right to be different, to disagree. Worryingly, suchproposals appear to confuse the need to restrain those who seekviolently to impose values from outside, with an illegitimatedemand that citizens must declare themselves British and beproud of it. Calls for national pride and flag flying will do little toaddress the wider problem of intolerance. As to a future writtenconstitution, the government must first recognise what isunwritten.

Notes1 The Governance of Britain, CM 7170, July 2007

2 Report of Session 2003–04, HC 422, 16 March 2004.

3 HL Paper 236, 27 July 2006.

4 The Treaties (Parliamentary Approval) Bill [H.L.] proposed such arequirement but was rejected in 1996. An interesting debate on the Billand the background to the prerogative power can be found in Hansard[HL] at 28 Feb 1996: Column 1535.

5 See further: A Consultation on the Role of the Attorney General, CM7192, 25 July 2007


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