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The distribution of power in UK government

The doctrine of separation of powers dictates that government power should not be concentrated in the hands of one person or one body, to avoid tyranny[1]. This doctrine was put forward by Montesquieu, who identified three distinctive functions of government;

  1. the Legislative, which enacts rules for society;
  1. the Executive, which formulates policy and is responsible for its execution. The Executive deals with actions to maintain or implement the law, defence of the State, conduct of internal affairs and administration of internal policies; and
  1. the Judiciary, which deals with deciding issues of fact and application of the law[2]. Their role is to adjudicate on the rights and liabilities under domestic law of citizens (or of institutions with legal personality) or to adjudicate on the validity of executive actions or omissions that may affect those rights and liabilities[3].

The Doctrine does not insist that the institutions carrying out these functions should operate in isolation of each other as such an arrangement would be unworkable[4]. Indeed, there is interplay between state institutions performing these functions. However, the concept of a separation of powers requires that the functions of the state should be allocated clearly and no institution should significantly encroach on the functions of another. The concept requires that powers and personnel are largely, but not totally, separated by a system of checks and balances to prevent abuse[5].

In the UK there is no written constitutional document that guarantees the rules of the Doctrine, and in practice, the functions of the state organs overlap significantly. For example, the political executive is parliamentary; legislative and judicial functions are carried out by members of the executive branch[6], and the Lord Chancellor is a member of all three branches of government[7]. The system of checks and balances in place include ministerial accountability to Parliament and the independence of the judiciary – these have been interpreted as “a British version of the separation of powers”[8].

Judicial independence is probably the most important check on the power of the other organs of the State. To ensure their independence, Judges are not chosen on the basis of their political allegiance, and they cannot be dismissed by the Executive on the grounds that the Executive does not agree with their decisions. The Courts keep a check on the Executive and will rule against them if they exceed their powers[9]. The Judiciary are strong upholders of the doctrine of the separation of powers, as demonstrated in R v Secretary of State for the Home Department, ex parte Fire Brigades Unions (1995) in which the Courts would not allow the Executive to ignore the Legislative will of Parliament[10] [11].

The doctrine of Parliamentary supremacy is an important concept when discussing the role of the judiciary in applying the law. The doctrine dictates that Parliament can make or unmake any law it chooses, and that there are no legal limitations imposed on Parliament at all. It is not, therefore, the function of the Court to question any law made by Parliament. The Courts may of course debate on the interpretation of an Act and will always try to give effect to the will of Parliament in reaching their decision. Following the introduction of certain provisions of European Law into UK domestic legislation, the Courts are also required to read domestic legislation in accordance with EU law provisions and where there is a conflict, to make a declaration of incompatibility. It must be noted that it is Parliament who have voluntarily chosen to introduce the relevant provisions of EU law and thus chosen to limit their sovereignty; they could therefore revoke this decision at any time – arguably then, Parliament always remains supreme.

The introduction of EU law has undoubtedly caused substantial controversy over whether the role of the Courts has changed at all, and to what extent the Courts do, and indeed should, scrutinise the decisions of the other branches of the government.

These issues were examined in detail in the case of A and others v Secretary of State for the Home Department; X and another v Secretary of State for the Home Department (2004) UKHL 56[12], which concerned nine men who had been certified by the Home Secretary under s.21 ATCSA and detained under s.23. All nine men were non-UK nationals and were not subject to any criminal charge or proceedings. There was no prospect of a criminal trial for any of their cases.

The case focused round two pieces of anti-terrorism legislation enacted by Parliament in response to the terrorist attacks that took place on September 11th 2001, namely:

  1. the Anti-Terrorism, Crime and Security Act 2001 (“ATCSA”); and
  1. the Human Rights Act 1998 (Designated Derogation) Order 2001 SI 2001/3644 (“the 2001 Order”), relating to Article 5(1)(f) of the European Convention on Human Rights (“ECHR”).

Article 5 of the ECHR[13] provides that everyone has the right to liberty and security of person and no one shall be deprived of his liberty save in the circumstances specified by that Article and in accordance with a procedure prescribed by law. Circumstances include, inter alia:

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Other provisions from the ECHR were considered, including Article 14 which further provides that the enjoyment of the rights and freedoms under the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 15 of the ECHR provides that in time of war or other public emergency threatening the life of the nation, any High Contracting Party may take measures derogating from its obligations under the Convention to the extent strictly required by the exigencies of the situation.

It further provides that any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures that it has taken and the reasons for them. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed[14].

Part 4 of the ATCSA[15], relating to Immigration and Asylum, sought to take advantage of the above derogation. The Act granted the UK Secretary of State for the Home Department (the Home Secretary) authority to certify and detain indefinitely certain persons without charge or access to legal counsel.

Under Section 21 ATCSA, those persons may include any person who the Secretary of State reasonably suspects to be a terrorist or whose presence in the UK presents a risk to national security.

Section 22(1) ATCSA provides for deportation or removal of the suspected terrorist even where such action could not ordinarily be taken because of “a point of law which wholly or partly relates to an international agreement” (such as the ECHR) or “practical consideration"

Under Sections 21 and 23 of the ATCSA, persons certified and detained could leave the UK and go to another country willing to receive them. These provisions also applied to certain non-nationals whom the Home Secretary certified as a risk to national security and whom were suspected of being, or supporting, international terrorists, but for whatever reason the Home Secretary was unable to deport.

Section 21(8) ATCSA provided that legal challenges to certification were reserved to an independent tribunal known as the Special Immigration Appeals Commission (“SIAC”). This provision acts as a check, operational by the Judiciary, that the Secretary of State’s powers under the Act are being exercised properly.

The Court recognised that the detention of a person against whom no action was being taken with a view to deportation might be inconsistent with Article 5(1)(f) ECHR and therefore the UK needed to rely on their power to derogate from the Article’s provisions under Article 15, which is what they sought to do by giving formal notice of derogation to the Secretary General in accordance with the provisions of the Article.

The detainees appealed to SIAC, who allowed their appeals on the grounds that both the 2001 Order and specifically, section 23 of ATCSA was incompatible with Articles 5 and 14 of the ECHR because Section 23 permitted the detention of suspected international terrorists in a way that discriminated against them on grounds of nationality.

The decision of SIAC was reversed by the Court of Appeal, and subsequently the detainees appealed, on the basis that:

  1. there neither had been nor was a “public emergency threatening the life of the nation” within the meaning of Article 15(1) ECHR; and
  2. the steps taken by the Government in derogation of its obligations under Article 5 were not proportionate; and
  3. Section 23 ATCSA was discriminatory.

On December 16 2004 the House of Lords ruled 8-1 in favour of quashing the Order, declaring that ATCSA was incompatible with Articles 5 and 14 ECHR.

In delivering his opinion, Lord Bingham referred to the provisions of Article 5(1)(f) and Article 15 ECHR as above, noting that a derogation of the provisions of Article 5 under Article 15 required “public emergency threatening the life of the nation”. Lord Bingham was satisfied that there was a public emergency and in fact, that it was open to the Government to decide if there was an emergency; and this decision was more political than legal. In fact, the Schedule to the 2001 Order referred to the attacks of 11 September and to United Nations Security Council resolutions recognising those attacks as a “threat to international peace and security” – further the Schedule notes the existence of a terrorist threat to the UK from persons “suspected of involvement in international terrorism” who are “a threat to the national security of the United Kingdom."

Where it could be shown that a public emergency existed, s.23(1) ATCSA allowed the detention of a suspected international terrorist even where that individual was not subject to deportation action or indeed, could not be deported. The Act allowed for grant of bail by SIAC against certification (s.25), periodic reviews of certification by SIAC (s.26), periodic reviews of the operation of sections 21 to 23 (s.28), expiry (subject to periodic renewal) of sections 21 to 23 (s.29) and for the final expiry of those sections, unless renewed, on 10 November 2006. Legal challenges to certification were reserved to SIAC under s.21(8), and Section 30 gave SIAC exclusive jurisdiction in derogation matters, which were defined as:

(1)(a) a derogation by the UK from Article 5(1) of the ECHR which relates to the detention of a person where there is an intention to remove or deport him from the United Kingdom; or

(b) the designation under section 14(1) of the Human Rights Act 1998 (c 42) of a derogation within paragraph (a) above.

The detainees challenged the lawfulness of their detention under the above section.

On the subject of proportionality, Lord Bingham concluded that the 2001 Order and Section 23 ATCSA were disproportionate in ECHR terms. He states: “the choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem (by allowing non-UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if suspected of having links with Al-Qaeda, may harbour no hostile intention towards the UK.”

Lord Bingham explained that it was unintelligible to think that if a terrorist posed a really serious threat to the UK, they would cease to do so “on the French side of the English Channel or elsewhere”. Allowing that suspect to leave the country and pursue criminal activity elsewhere was difficult to reconcile with a true belief that the person had a real capacity to threaten the security of the UK – if such a true belief was held, we would be “exporting terrorism”[16]. The Newton Committee, echoing this line of reasoning, argued that if people in the UK are truly contributing to the terrorist effort here or abroad, they should be dealt with here. On a similar theme, Lord Nicholls commented that it was difficult to see how the “extreme circumstances”, which alone would justify the detention, could exist when lesser protective steps apparently suffice in the case of British citizens suspected of being international terrorists. Lord Nicholls explained that since 9/11, the Government had felt able to counter the threat posed by British suspects by other means without resorting to using extended powers of detention equivalent to those found in ATCSA.

As the case involved a derogation from a fundamental right under the ECHR (the right to liberty), Lord Bingham noted that the judiciary had the role of minimising the risk of arbitrariness and ensuring the rule of law[17]. Consequently, the courts were not “precluded by any doctrine of deference from scrutinising the issues raised”.

In relation to the claim by the detainees that Section 23 ATCSA unlawfully discriminated against them on the grounds of nationality or immigration status, in breach of Articles 5 and 14 ECHR, Lord Bingham noted that, because the threat from suspected international terrorists did not depend on nationality or immigration status, the effect of Section 23 was to permit non-nationals to be deprived of their liberty. Further, Article 14 ECHR had not been the subject of the UK’s derogation as notified to the Secretary General. Article 14 therefore remained effective and the decision to detain one group, defined by nationality or immigration status, violated this Article, as well as Article 26 of the International Covenant on Civil and Political Rights (“ICCPR”), and was therefore inconsistent with the UK’s obligations under international law as set out in Article 15 ECHR.

In delivering their judgements, the Lords made some interesting, and sometimes conflicting, observations about the role of the Court and the separation of powers. Lord Nicholls highlighted that Parliament had charged the courts with the responsibility to check that legislation and ministerial decisions do not overlook the human rights of persons adversely affected. Although the Courts must give latitude to Parliament and Ministers as the primary decision makers, they must intervene when it is apparent that, “in balancing the various considerations involved, the primary decision maker must have given insufficient weight to the human rights factor”.

Lord Nicholls felt that the prospect of indefinite detention under ATCSA was not compensated for by the provision for independent review by SIAC. Although he felt that SIAC were well placed to “check that the Secretary of State’s powers are exercised properly”, he believed that the issue in hand was the existence and extent of the statutory powers, rather than the way in which they were being exercised.

Lord Hoffman reiterated the doctrine of parliamentary supremacy in saying that it was not the place of the Court to question an Act of Parliament. He clarified the powers available to the Court in relation to statutory provisions that appear to be incompatible with the Human Rights Act 1998. The Courts have no constitutional role – they cannot review the validity of Acts of Parliament and are obliged to apply Acts equally[18]. There is no power for the Court to override legislation, nor can they set it aside, but they can declare that it is incompatible with the human rights of persons in this country. Parliament may then choose whether to maintain the law or not, although arguably if they chose not to, they would be revoking the Human Rights Act 1998. Nonetheless, the declaration of the Court that a provision is incompatible gives Parliament the option of choosing what action to take, in “full knowledge that the law does not accord with our constitutional traditions”.

This point was reiterated later in the judgement by Lord Scott, who stated that it could not be suggested that ATCSA was anything otherwise than an effective enactment made by a sovereign legislature. “It was passed by both Houses of Parliament and received the Royal Assent.” Further, whether the Act was consistent with the ECHR or any other international provision would only be relevant insofar as a declaration of incompatibility under Section 4 HRA should be made.This would not affect the validity of the statutory provision.

Baroness Richmond agreed with this direction, commenting that the challenge to the validity of the law was inappropriate as the law was contained in an Act of Parliament which had been properly enacted and could not therefore be struck down by the Courts. Of interest, she noted that the HRA was “careful to preserve the soverignty of Parliament”, reiterating that a declaration of that incompatibility under Section 4 HRA would not invalidate the provision or anything done under it, although following such a declartion, the Government and Parliament would then need to decide what further action was appropriate.

Interestingly, Lord Hoffman allowed the appeal on the basis that there was no “threat to the life of the nation” as “terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.” He noted that the other Lords had allowed the appeal on the grounds that power of detention confined to foreigners is irrational and discriminatory, but he preferred not to express a view on that point, citing that it may be construed that all that was necessary to avoid the issue was to extend the power to UK citizens as well. Lord Hoffman felt that the power of unlimited detention in any form was incompatible with the constitution and represented the “real threat to the life of the nation”.

Lord Hope highlighted that not only was ACTSA incompatible with the provisions of the ECHR, but also to treat the right to liberty under Article 5 of foreign nationals as any different from British nationals would be incompatible with Article 33 of the United Nations Convention Relating to the Status of Refugees[19] and the Protocol Relating to the Status of Refugees[20]. This is an important point because it highlights international obligations that have not been complied with – refering back to Lord Bingham’s judgement, it was noted that Article 14 was not subject to the derogation and therefore remained effective. Therefore if the provisions could be shown to be discriminatory, they would be unlawful under Article 14.

Lord Hope also highlighted the Attorney General’s submission that a wide margin of discretion should be accorded at each stage in the analysis to the Executive and to Parliament, on the basis that the Executive was best placed to cosnider the risks and on the special nature of the intelligence exercise – in other words, these bodies were best placed to assess whether the detainees truly presented “public emergency threatening the life of the nation” within the meaning of Article 15(1) ECHR. However, Lord Hope did not accept that a wide margin of discretion would be applicable where fundamental rights such as the right to life and to liberty were at stake. He reiterated that it was the function of the Court to “give effect to the guarantee to minimise the risk of arbitrariness and to ensure the rule of law[21]. Its absolute nature, save only in the circumstances that are expressly provided for by art 5(1), indicates that any interference with the right to liberty must be accorded the fullest and most anxious scrutiny”. In other words, the margin of discretion is narrower than may be the case in other contexts, because of the rights and freedoms at stake.

Lord Hope focuses on the definition of “threatening the life of the nation” under Article 15(1), such a situation being described as an 'exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed'[22]. This crisis or emergency may have already taken place or could be imminent, according to the Greek Case (1969)[23]. The ECHR has suggested a wide margin of appeciation can be allowed to states in their assessment of what constitutes an actual or imminent emergency[24]. Further consideration must be given to whether the measures employed are “strictly required by the exigencies of the situation” and again a wide margin of appreciation can be afforded to Member States for their assessment of this.

Because such a wide margin exists, Lord Hope draws attention to the importance of the judiciary in the process of scrutinising whether the interference with a person’s right to liberty is “strictly required” by the present or imminent emergency situation. Lord Hope explains that the right to liberty is within the Courts’ area of responsibility and the final word as to whether the measures exceed the limits of proportionality must rest with the Court.

It was Lord Hope’s opinion that it is open to the judiciary to examine the nature of the situation that has been identified by government as constituting the emergency, and to scrutinise the submission by the Attorney General that for the appellants to be deprived of their fundamental right to liberty does not exceed what is 'strictly required' by the situation which it has identified.

Interestingly, the Court (SIAC) felt that it was not its function to substitute for the British government's assessment any other assessment of what might be the most prudent or most expedient policy to combat terrorism[25].

Lord Scott in delivering his opinion commented that a challenge to the lawfulness of the detainees’ incarceration required a challenge to be made to the exercise by the Home Secretary of the statutory powers conferred on him by Section 23 ACTSA and such a challenge was not the subject of these proceedings. His point was that Parliament was entitled to enact any piece of legislation it saw fit, whether or not it was compatible with the ECHR. The Courts’ function was identified as being to construe and apply Parliamentary enactments, and they will “not readily assume that Parliament has intended the inconsistency”. But where the words of the statute are clear, Parliament will have sufficiently expressed its intention to enact a provision inconsistent with the ECHR and it is not the role of the Courts to question Parliament’s intentions – rather, the courts must apply and give effect to the statutory provision as valid and enforceable legislation. Further, he highlighted that it is not the normal function of the Courts to hear proceedings in order to give a ruling as to whether an Act of Parliament is compatible with an international treaty obligation entered into by the Executive. He explains, “the Executive cannot make laws for the UK [other] than pursuant to and within the constraints imposed by an enabling Act of Parliament. The executive has extensive and varied prerogative powers that it can exercise in the name of the Crown but none that permit law-making”.

In being asked to determine the compatibility of the Act of Parliament in question, Lord Scott felt that the Courts were being asked to perform a function which was political in character, rather than legal. This is entirely contradictory to the doctrine of separation of powers and, importantly, to the principle that the judicicary should remain independent of Parliament and the Executive. Essentially, this principle is the “one main preservative of public liberty which cannot subsist long in any state unless the administration of common justice be in some degree separated from the legislative and from the executive power”[26].

Lord Rodger further highlighted the duty of the Court to check whether, as art 15(1) stipulates, the measures imposed were strictly required by the exigencies of the situation. He felt that in discharging that duty “British courts are performing their traditional role of watching over the liberty of everyone within their jurisdiction, regardless of nationality.” Citing La Forest J[27], he states that 'Courts are specialists in the protection of liberty' and must have regard to the extent of imposition that the measures encroach on the liberty of foreign suspects: the greater the imposition, the greater the care with which the justification for it must be examined. Lord Walker, although dissenting in his judgement, agreed that it was the Court’s duty subject to a very close scrutiny the practical effect which derogating measures have on individual human rights.

Interestingly however, Lord Walker felt that the judgment of Parliament and of the Secretary of State is that these measures were necessary, and the 2001 Act contains several important safeguards which he felt were sufficient protection against oppression. He highlighted that the exercise of the Secretary of State's powers were subject to judicial review by the SIAC, an independent and impartial court and such safeguards demonstrated a genuine determination that ACTSA should not be used to encroach on human rights any more than is strictly necessary. Lord Walker seems to suggest that the Courts should not question the legislation itself and that the decision to enact the measures was not a question for the Court.

This case raises some interesting observations on the role of the three branches of the Government and their interaction; in particular, it looks in detail at the role of the Court and touches on issues of Parliamentary supremacy and sovereignty. His Lordships highlighted that ATCSA contained several important safeguards against oppression and the Home Secretary’s powers were subject to judicial review by the SIAC. These safeguards are part of the system of checks and balances necessary to ensure a proper separation of powers in our system which, as discussed, is subject to significant overlaps between the organs of the State. The Lords show some difference in opinion about what is the proper function of the Court. It is however generally accepted that the Courts’ role is to apply the law as made by Parliament and also to operate a check on any persons or bodies exceeding the powers delegated on them by Parliament. Courts in upholding both the rule of law and the sovereignty of Parliament may the process whereby decisions are made but may not question the merits of the legal rules themselves. It would appear that in this case, and in any case involving the compatibility of EU law, the role of the Court has become blurred – Courts are arguably required to question the validity of UK legislation rather than simply apply it and assume that Parliament did intent to legislate in such a way that is incompatible with other legislation, e.g. the HRA (although this power is conferred on them by Parliament in introducing the legislation in the first place). Further, where a Court questions the manner in which a minister of the Crown has exercised power (in accordance with that conferred on him by Parliament), this appears to move away from merely applying the law and suggests an intrusion on Executive power by the judiciary. Whilst there has been a high degree of judicial independence in this country, cases such as these concerning conflicts between domestic and international law demonstrate the difficulties that judges face, having been conferred new responsibilities, to remain independent and separate from the functions of the other government institutions.

Bibliography

Allen, M & Thompson, B (2003) Constitutional & Administrative Law (Cases & Materials) (7th Edition) Oxford University Press, Oxford

Barnett, H (2003) Constitutional & Administrative Law (4th Edition) Cavendish Publishing Limited, London

Clements, R & Kay, J (2004/2005) Constitutional & Administrative Law (3rd Edition) Oxford University Press, Oxford

Foster, N (2005/2006) EC Law (5th Edition) Oxford University Press, Oxford

1


Footnotes

[1] Clements & Kay, p.10

[2] Clements & Kay, p.10

[3] Lord Scott, [2004] All ER (D) 271 (Dec)

[4] Barnett, p.107

[5] Barnett, p.107

[6] For example, the Home Secretary exercises the power to grant pardon

[7] Halsbury’s Laws of England – Separation of Powers

[8] Clements & Kay, p.11

[9] See for example M v Home Office (1992) QB 270 re the Home Secretary

[10] (1995) 2 AC 513

[11] Clements & Kay, p.12

[12] [2004] All ER (D) 271 (Dec)

[13] The provisions of which were given domestic effect by the Human Rights Act 1998

[14] Article 15, ECHR

[15] Now repealed by the Prevention of Terrorism Act 2005, s 16(2)(a).

[16] See report of the Newton Committee

[17] Referring to Aksoy v Turkey (1996) 23 EHRR 553, para 76

[18] British Railways Board v Pickin (1974) Ac 765

[19] Geneva, 28 July 1951; TS 39 (1953); Cmnd 9171

[20] New York, 31 January 1967; TS 15 (1969); Cmnd 3906)

[21] Aksoy v Turkey (1996) 1 BHRC 625 at 643 (para 76)

[22] Lawless v Ireland (No 3) (1961) 1 EHRR 15 at 31 (para 28)

[23] 12 YB 1 at 72 (para 153)

[24] Ireland v UK (1978) 2 EHRR 25 at 92 (para 207)

[25] Paras 37–45 [2002] HRLR 1274 at 1296–1299

[26] Blackstone, Vol 1 p.204 cited in Barnett, p.109

[27]RJR-MacDonald Inc v A-G of Canada [1995] 3 LRC 653 at 697


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