House of Lords Hansard March 7, 2005 http://www

Terrorism Prevention Act, 2006 – Two inquiries

Preliminary Observations

The undermentioned analysis is premised upon two initial considerations:

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  1. The actions of the constabulary were at all times in conformity with s.41 ( 1 ) and the related commissariats of the Terrorism Act, 2000.
  1. The capable order as made pursuant to ss. 1 ( 1 ) and ( 2 ) of the present Act can readily be characterised as aminimizing order. If a tribunal were to do such a determination, the balance of the analysis contemplated by the present subject and inquiries is moot.

An scrutiny of this complex issue would necessitate an analysis that would necessarily widen far beyond the length permitted for this paper. There are clear statements to be advanced for the proposition that the Act creates a proverbial derogated wolf in non-derogated sheep’s vesture, by virtuousness of the Act’s evident encroachment upon non-derogable ECHR rights. The usage of a more innocuous legal label does non change the character of the proviso. ( seeDyzenhaus, 1 andOraa, 285 ; see besidesMegabit[ 2006 ] EWCA Civ 1140, paras 7, 8 )

1.( a ) The apprehension and detainment of Jacob / Article 5, ECHR

The relevant part of Article 5 of the ECHR ( rights of autonomy and security ) to be considered with regard to Jacob’s apprehension and detainment is Art. 5 ( 1 ) ( degree Celsius ) sing lawful apprehension and detainment. It is submitted that the behavior of the governments towards Jacob in this respect, taken as a whole, constitutes a misdemeanor of Jacob’s ECHR rights.

The UK appellate instance jurisprudence is clear that the commissariats prescribed in the national Torahs that permit non-derogation control orders must fulfill the ECHR. This overarching duty is besides tied straight to the interpretative duty imposed upon the UK tribunals as set out in theHuman Rights Act, 1998 ;s.3 ( 1 ) states the trial as…‘So far as it is possible to make so…’

The processs that form the topic of the Court of Appeal analysis inMegabitare a utile counter-point to the job posed. Unlike the present Act, where the Home Secretary is empowered to do the non-derogation order and so later defend it if challenged by Jacob or any other similar applier, the statue considered inMegabitrequired an application by the authorities governments to a justice to obtain the order. It is to be noted that the procedure challenged inMegabitwas described by the justice at first case as possessing merely a ‘thin veneer of legality’ (Megabit, parity. 31 ) , with the end point ECHR misdemeanor described as an ‘understatement’ . (Megabit, parity. 30 )

The fortunes of MB are besides of importance to the current analysis. The applier inMegabitwas suspected by the governments as being an Islamic extremist, one who was prepared to go to Iraq to contend the Coalition forces engaged in the struggle at that place. In the present instance, there is no grounds that Jacob has any evident connexion to subversive or terrorist activity in the UK or beyond save for his ownership of the incendiary stuffs seized.

This factual differentiation is an of import one ; the Court of Appeal’s opinion in theJJdetermination, a comrade instance toMegabit, ( [ 2006 ] EWCA Civ 1141 ) , where the appliers were suspected of possible terrorist activities registering at a lower degree of authorities intuition, is besides of import.

Jacob’s statement that the actions of the State taken against him pursuant to the Act were disproportional to the apprehended injury are besides 1s considered inJJ. It is submitted that this statement has existent force to the point of irrefutability (A v. Secretary of State,59 ) . As the Court noted in MB, the being of a sensible intuition while short of the cogent evidence of a condemnable act, is something that a sensible individual would see as an of import underpinning to the infliction of limitations against another’s autonomy.

It is suggested that in Jacob’s fortunes, absent a factual connexion or allowable logical illation to be drawn between the pyrotechnics possessed and a terrorist object, a reviewing tribunal would be compelled to happen both a misdemeanor of Article 5 as there being no even leery condemnable behavior advanced, and a corresponding misdemeanor of the procedural precautions in article 6. the Article 6 considerations are set out below.

( B ) The court’s restrictive position of the evidences to establish a challenge to the Order

Megabitsets out as a point of beginning the benchmark established by ECHR Article 6 when sing its impact upon UK civil jurisprudence.

Article 6 is concerned with procedural equity, non the equity of substantial jurisprudence. If UK legislative act restricts a civil right by mention to standards which operate in a mode which is unjust, it will non follow that legal proceedings that give consequence to that legislative act will be unjust so as to conflict Article 6. (Megabit, para 36 )

Determining the proper criterion of reappraisal applicable to the determination of the governments to seek a non-derogation order is cardinal to theMegabitdetermination. Of necessity, the judicial mentality in such affairs will favor the authorities authorization. In instances affecting national security issues, a important grade of respect will be afforded the determinations made by the authorities governments, given their presumed expertness and responsibility to protect the public involvement. It is appropriate to harmonize such respect in affairs associating to province security has long been recognised, both by the tribunals of this state and by the Strasbourg tribunal (Megabit, para 64 ;Rehman[ 2003 ] AC 153, 155 )

It is every bit apparent that notwithstanding the respect to authorization noted above, the tribunal is non limited to merely reexamining issues of equity or the legality of the decision maker designated by Parliament. Given that while the non-derogation order in the topic Act is non a condemnable proceeding, the impact upon Jacob’s autonomy is sufficient to prosecute a full hearing of the virtues of the affair. (Runa Begum,para 42 )

However, can the range of judicial reappraisal undertaken of Jacob’s fortunes be constricted by the usage of the term ‘malice’ in the operative subdivision of the Act? It is submitted in the present instance that a tribunal will non be so foreclosed in its analysis. The Court may look at the entireness of the fortunes subject to a clear national security restriction, in finding ECHR conformity.

So far as the applicable process is concerned, a tribunal carry oning a judicial reappraisal has all the powers it requires, including the power to hear unwritten grounds and to order cross-examination of informants, to enable it to replace its ain judgement for that of the determination shaper, if that is what Article 6 requires. (Megabitpara 48 )

The Court of Appeal inMegabitwas prepared to accept that some going from absolute criterions of equity was permitted in national security instances – inMegabit, this statement centred chiefly upon the usage of ‘closed material’ to do a determination sing the applicant’s autonomy. The Court stated that ‘…to deny to a party to legal proceedings the right to cognize the inside informations of the instance against him is…fundamentally at odds with the demands of a just test. And yet, both Strasbourg and domestic governments have accepted that there are fortunes where the usage of closed stuff is permissible.’ (Megabitpara 53 )

The Court of Appeal equated the procedure in MB to that of a bond hearing and it is submitted that the word picture is an disposed one.

JJarticulates a different consideration of the same statutory strategy at issue inMegabit. The Court determined that where the legislative act permitted a judicial reappraisal where the initial order was found to be ‘flawed’ , ‘…We think it questionable whether the commissariats of ( the legislative act ) were designed to cover with a challenge to a control order on the land that it isextremist viresbecause it infringes Article 5 ( 1 ) . (JJ, para 21 )

In consequence the Court was non prepared to happen the constructs ofextremist viresand ‘flawed’ as being needfully the same thing. The Court would non be restricted to the narrower considerations urged upon it by the authorities.

It is submitted that the present instance and its distinguishable but powerful issues of proportionality and ECHR misdemeanor, lead to an resistless consequence, where the s. 1 ( 1 ) Order must be set aside.

Bibliography

House of Lords Hansard March 7, 2005 hypertext transfer protocol: //www.publications.parliament.uk/pa/ld200405/ldhansrd/vo050307/text/50307-08.htm ( Accessed February 10, 2007 )

Dyzenhaus, David ‘The Rule of ( Administrative ) Law in International Law’Law and Contemporary Problems, Vol. 68, 2005, 1

Oraa, JaimeHuman Rights in States of Emergency in International Law’ ( Oxford: Clarendon Press, 1992 )

Table of Cases

A v. Secretary of State for the Home Department[ 2004 ] UKHL 56

International Transport Roth GmbH & A ; Ors v Secretary of State For the Home Department[ 2002 ] EWCA Civ 158

Runa Begum V Tower Hamlets LBC[ 2003 ] UKHL 55

Secretary of State for the Home Department V MB[ 2006 ] EWCA Civ 1140

Secretary of State for the Home Department V JJ[ 2006 ] EWCA Civ 1141

Sepet & A ; Anor v Secretary Of State for the Home Department[ 2001 ] EWCA Civ 681 ( 11 May 2001 ) ( [ 2001 ] EWCA Civ 681

Secretary of State for the Home Department V Rehman[ 2001 ] UKHL 47 ; [ 2003 ] AC 153, 155

TheRepublicofIrish republicv theUnited Kingdom( 1978 ) 2 EHRR 25, 28.

Table of Legislative acts

European Convention on Human Rights, Articles 5 and 5

UK Terrorism Act, 2000

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