Interpreting the deportation laws: an Australian view
On 5 August 2005, just before going off on his summer holidays, the prime minister, Tony Blair, announced a 12-point plan for new measures against terrorism for enactment when parliament resumed in the autumn (or before). According to the summary in the Guardian, these included "New grounds for deportation including fostering hatred, advocating violence to further a person’s beliefs or justifying or validating such violence. Possibility of amending the Human Rights Act if legal obstacles arise in respect to the interpretation of article three of the European convention on human rights. Association with a list of extremist websites, bookshops and networks will be a trigger for the home secretary to consider deporting a foreign national." Referring to the possibility that the British courts might refuse to agree to the deportation of terrorist suspects to countries where they might be subjected to torture or other ill-treatment (following the precedent of the Chahal ruling in the European Court of Human Rights), even if the government had negotiated an undertaking with the country concerned not to ill-treat the deportee, Mr Blair said:
Should legal obstacles arise, we will legislate further, including, if necessary amending the Human Rights Act, in respect of the interpretation of the ECHR. In any event, we will consult on legislating specifically for a non-suspensive appeal process in respect of deportations.
Mr Blair, a barrister, presumably recognises that even the British parliament can’t legislate to oblige the judges of the European Court of Human Rights, or the other states which are party to the Human Rights Convention, to adopt a new interpretation of the Convention in order to suit the wishes of the British Government. What the British parliament can do, though, and what has begun to emerge as the government’s possible plan for new UK legislation, is to amend the UK Human Rights Act 1998 (which incorporated the European Convention into UK law), so as to set out the ways in which British judges are to interpret the Act (but not necessarily the Convention itself). UK legislation could also change the Human Rights Act so as to remove the right of a terrorist suspect to appeal to the British courts against deportation on Human Rights Convention grounds such as the likelihood that he will be tortured if returned to his own country. Parliament could not abolish a deportee’s right of appeal to the European Court of Human Rights, but it could in principle authorise the home secretary to deport the suspect before he had a chance to appeal against deportation to the European Court: deport first, appeal afterwards. This is what Mr Blair seemed to be hinting at with his threat to legislate "specifically for a non-suspensive appeal process in respect of deportations."
These three proposals — trying to force British judges to adopt a more convenient interpretation of the provisions of the Human Rights Act without taking account of the European Court’s own interpretations of the Convention which the Act embodies; abolishing the right of appeal to the British courts of those whom the government wants to deport; and taking powers to deport suspects before they have a chance to appeal to the European Court — are all plainly open to serious objection, and would mark a significant reduction in the basic rights of non-British citizens in Britain. The first and third of them also seem open to question as to their legality.
In August 2004 I put on my website an interesting piece by the Australian lawyer, John Greenwell, suggesting a possible new approach to the question of the use of evidence obtained by torture. John Greenwell is a retired former legal adviser to the Australian government, specialising in international law. He has now written the following interesting and useful comments on the issue of the right and freedom of judges to interpret the law as adopted by parliament:
I am very interested in the proposed UK legislation to give directions to the Courts on the interpretation of legislation. Although seemingly a technical area, this touches upon some things which are pretty fundamental.
While the Revolution established the sovereignty of Parliament, the courts and the lawyers were partners in this, having the same Lockean views and interests as the parliamentarians. Montesqieu came later and so there was no formal separation of powers (although Locke referred to it, more as a working principle than doctrine). The Judges obtained security of tenure, an essential part of the Revolution settlement and also, more materially, the authority to interpret legislation. They proceeded to use this power, refusing to admit parliamentary debates or any other extrinsic evidence of parliamentary intention into Court for aid in the construction of Acts of Parliament and invoking a presumption that an Act of Parliament was not intended to overturn the common law. This presumption has almost disappeared, but until well into the twentieth century it was frequently used by the Judges to ensure that Parliament did not stray too far from the common law.
Of course the ‘Judicial Power’ is constitutionally protected in Australia, and the proposed UK legislation would be even more dubious, in point of power, in America where the separation of powers is constitutionally enshrined.
It comes, I think, to this. Parliament can tell the Courts what it intended to mean and to that extent can guide interpretation by the Courts. But Parliament cannot tell the Courts — or anybody else — what the words of an Act do mean. That is exclusively a matter for the Courts. This proposition would, I think, be equally applicable in the UK. The reason for this is that interpretation is logically prior to the operation of parliamentary sovereignty. That is to say, the sovereignty of Parliament applies only to what Parliament said, but what it has said — its meaning — must first be interpreted by the only organs authorised to do that, the Courts. As anyone familiar with the interpretation of revenue legislation would be aware, what Parliament (in effect the government) says it intended to mean can be very different from what the Courts lay down it does mean. Perhaps the one effect upon interpretation of the proposed legislation will be to exclude the ordinary presumption in interpretation that a statute is not intended to take away the liberty of the subject.
Of course as most of the legislation in question will bear upon the Human Rights Convention any issues arising will ultimately be determined by the Court in Strasbourg which will not be constrained by UK interpretative legislation. For all that, I do not think the UK legislation could constitutionally go beyond statements in preambles, second reading speeches and explanatory memoranda specifying Parliament’s intention and requiring the Courts to have regard to that, but only insofar as the intended meaning is relevant to the construction of the meaning.
I will be interested in the legislation when it emerges.
I wonder what Tony and Cherie have to say about all this over breakfast — probably they apply the John Cleese formula and don’t mention it.
UK Ministers have argued that other countries which are signatories to the European Human Rights Convention deport suspects to countries known to practise torture without being frustrated by their own domestic courts, and that they see no reason why Britain should not enjoy the same freedom to act likewise. The flaws in this argument are apparent from some useful research by Tony Hatfield in his blog entries of 12 August and 14 August this year. A more up-to-date entry appeared in that blog on 7 September.
To their credit (and especially perhaps to the credit of the home secretary, Charles Clarke), ministers have promised a full opportunity for debate both with public opinion and in parliament before any of these highly controversial proposals are finalised and put into effect. Effective opposition to the proposed measures discussed here will be complicated by their technical character and the technicalities of the arguments for rejecting them. All the more reason for airing these arguments and this debate as widely as possible while there is still time. MPs and peers please copy!