Strasbourg, 1 February 2006

CCJE/REP(2006)28
English only

Consultative Council of European Judges (CCJE)

Questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of the United Kingdom

Questions

A. Availability of information and documentation on all international legal instruments relevant to judicial activities (point IV (d) of the framework action plan)

A.1. Does your country have schemes to provide judges with initial and in-service training in international and European law? If it does, please provide a list of those schemes, specifying the subjects dealt with over the last year. Please indicate the number of judges concerned by these schemes, distinguishing between initial and in-service training, and the total number of judges in your country.

The arrangements for judicial training throughout the United Kingdom must be seen in the context of two points:

(i) judges are appointed from among experienced practitioners, who will have had university and professional education as lawyers, necessarily including international and European law, as well as experience in their particular field (within which they will almost always sit as judges) of the practical impact of such law;

(ii) (ii) practitioners appearing before judges are expected (and can usually be relied upon) to have done the relevant research into any issues of law, and are professionally bound to present the law to the court in an accurate manner. That does not of course preclude United Kingdom judges from thinking for themselves or making their own researches.

These two points mean that there is less need for a fully comprehensive system of judicial (re)-training on and after appointment.

Nevertheless, it is the important role of the well-established and well-organised Judicial Studies Board (“JSB”), chaired and run by judges, to identify and meet judicial training needs arising from planned European legislation, to participate in the European Judicial Network and to arrange for judges to participate in its activities as well as those of other European institutions (e.g. the European Law Academy, Trier).

As an example, prior to the incorporation into domestic law on 2nd October 2000 of the European Convention on Human Rights, a very large-scale programme was undertaken over the preceding years to train judges in the domestic application of the Convention. Similarly, when European human rights law impacts on particular domestic fields, such as crime and equal treatment, they are part of the regular initial and in-service programmes which all judges are required to attend. In other areas, e.g. competition law, where there have been recent changes reflecting new European Union developments, special two-day seminars have been organised in January 2005 and January 2006 for judges likely to be involved in such cases.

There is of course also a large literature on European Union and human rights law written by academics, practitioners and other judges, to which judges will be referred by counsel and which many judges will also be able to access in court libraries or in some cases have in their own rooms.

A.2. Do all judges periodically receive full information on recent legislation and case-law at the European and international levels, within out it being necessary for them to perform their own research in these matters? Of they do, please indicate what types of documents are sent direct to each judge by the national authorities (e.g. official gazettes, legal periodicals). Please also specify what information is available on paper and what is provided in electronic form (CD-Rom, for instance).

The literal answer is negative – judges would be over-whelmed and it would be counter-productive, if they were all sent full information and case-law at such levels. But judges receive JSB circulars as well as professional bulletins and journals relating to their particular fields of activity, and these commonly draw to their attention any particular points or developments likely to affect them in practice.

A.3. (a) Do judges have an opportunity to attend foreign language courses? Are these courses free of charge or state-subsidised?

Basically, no - not in official time or at official cost! This would require very significant resources to have any noticeable impact, and the usefulness would, even then, be questionable. The British judiciary is small in number and it would simply not be feasible to allow the time necessary, even if the funds were available. Judges with language skills have developed them, or have to develop them, on their own; there are lists indicating who such judges are, and their language skills are called on whenever necessary, in court or in relation to foreign contacts or meetings.

(b) Does each court have legal translation facilities?

Facilities on site would be unnecessary and extremely expensive. But if an interpreter is necessary, of course arrangements are made for one to come from outside, normally by the parties or, in a criminal case, by the Crown Prosecution Service or by the Legal Services Commission funding the defence; if a document requires translation, likewise this will be normally arranged by the parties (or, in a criminal case, the Crown Prosecution Service or Legal Services Commission). A trial would not be fair if relevant evidence (oral or documentary) was deployed in a foreign language without translation or was deployed in English (or Welsh) when a party or witness could not understand or did not wish to use English (or Welsh).

B. Dialogue between national and European judicial institutions (point IV (c) of the framework action plan).

B.1. What means does your county use to enhance dialogue between the national courts and the European courts? Please provide information on training dispensed in this connection over the last year; and

B.2. Does your country hold events bringing together the national courts and the European courts? Who participated in these gatherings? How are their results passed on, so as to enhance their reach?

There are regular visits by United Kingdom judges to the European Court of Justice (“ECJ”) in Luxembourg, and increasingly frequent visits by individual judges or groups of judges to the European Court of Human Rights (“ECHR”) in Strasbourg. There have also been very welcome seminars organised by the ECJ in Brussels on the judicial architecture of the European Union and the working of the ECJ, which a number of United Kingdom judges have attended. The large-scale judicial meetings which occur in Luxembourg involving numerous countries tend to be mainly formal. The most productive meetings are small-scale meetings, usually focused around discussions with judges on the ECJ from the United Kingdom.

The view has been expressed that, despite the ECJ’s common description of its relations with national courts as one of dialogue, there is in reality limited dialogue outside the small-scale meetings already mentioned. The ECJ’s judgments make little reference to domestic jurisprudence (and Advocate General’s opinions, which more commonly refer to it, are by no means invariably followed by the ECJ). The ECJ in its judgments adopts a principle of unanimity. This, although meant to encourage certainty, can lead to compromise, obscurity and an absence of nuance. There is also room for debate whether European Court jurisprudence, particularly in the area of civil jurisdiction and judgments, pays sufficient attention to legitimate national and non-European legal interests in its concern to establish a single European legal space.

The ECHR often gives fuller judgments than the ECJ, making reference to domestic authority, and it recognises partly concurring and dissenting judgments, which can also assist to clarify the parameters and limitations of particular decisions. The margin of appreciation allowed by the ECHR to national courts in certain spheres is a useful tool developed by the ECHR which operates in effect as a principle of (or akin to that of) subsidiarity, by giving national legal systems some limited freedom to shape the law to suit particular national circumstances and needs.

C. Application by national courts of the European Convention on Human Rights and the case-law of the European Court of Human Rights, European community law and other international legal instruments (point IV (b) of the framework action plan).

C.1 In your country what rank do the following sources of law enjoy in the hierarchy of law and in particular in relation to constitutional provisions and ordinary legislation?
a) the European Convention on Human Rights (ECHR)

b) EU treaties
c) Case-law of:
- European Court of Human Rights
- Court of Justice of the European Communities
d) International treaties.

Please cite the relevant constitutional provisions or case-law.

In the United Kingdom, sources of law can be ranked as follows:
a) EU treaties: The European Communities Act 1972 made Community law binding and enforceable in the UK. In R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2),1 the House of Lords accepted that EU law prevails over incompatible provisions of an Act of Parliament, whether enacted prior or subsequent to the European Communities Act 1972 or the relevant Community provisions.
b) UK statutes
c) ECHR: By virtue of the Human Rights Act 1998 primary and subordinate legislation must be read and given effect to in a way that is compatible with Convention rights.2 In instances where it is not possible to read and give effect to statutory provision in a manner which is consistent with the Convention, certain higher courts3 may make a declaration of incompatibility.4 In relation to subordinate legislation the same higher courts may make a declaration of incompatibility if satisfied that the provision is incompatible with a Convention right and that the parent statute prevents removal of that incompatibility.5
d) Case-law of:

- the Court of Justice of the European Communities: Decisions of the ECJ are binding on UK courts and tribunals.6
- the European Court of Human Rights (“EctHR”): UK courts or tribunals determining a question involving a Convention right must take into account any relevant judgment, decision, declaration or advisory opinion of the EctHR.7

e) Case-law of the United Kingdom
f) International treaties: The UK adopts a dualist view of the relationship between international treaties and domestic law. Accordingly, a treaty does not form part of national law unless and until incorporated into UK law by legislation.

C.2. Does your country’s case-law recognise the value – at least for interpretation purposes – of the Council of Europe recommendations and resolutions?

UK courts do recognise the value of Council of Europe recommendations and resolutions as interpretative tools. For instance, in the case of Regina (Munjaz) v. Mersey Care NHS Trust, Lord Hope of Craighead referred to Recommendation Rec (2004) 10 of the Committee of Ministers in considering the circumstances in which people with mental disorders could lawfully be subjected to seclusion.8 In the case of X and another v Secretary of State for the Home Department, Lord Bingham of Cornhill referred to Resolution 1271 (adopted on 24 January 2002 by the Parliamentary Assembly of the Council of Europe) in considering measures taken to combat terrorism in the UK.9

C.3. If the European Court of Human Rights were to hold that certain provisions of your country’s legislation violate the ECHR, would your national courts be permitted not to apply those provisions? Apart from execution of the Court’s judgments by the government, do the national courts have authority to prescribe their own measures implementing the Court’s decision?

UK courts are required to follow UK legislation even if provisions in that legislation have been held to violate the ECHR by the EctHR. The UK courts are however, obliged to take into account any judgment, decision, declaration or advisory opinion of the EctHR.10 It is likely therefore that the UK courts would also find that the provisions in the legislation violated the ECHR. In these circumstances, the UK courts could make a declaration of incompatibility in respect of primary legislation, or strike down any subordinate legislation.

C.4. Where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision, are the following remedies available in your country before a possible application to the Court in Strasbourg:
- a direct application for reopening proceedings?
- lodging of a claim for compensation?

Please specify whether national law affords solutions of this kind which are solely confined to certain violations of the ECHR, such as legal proceedings which have breached the reasonable time requirement.

Reopening proceedings: The House of Lords will not reopen any appeal save in circumstances where, through no fault of a party, he or she has been subjected to unfair procedure (article 6 of the ECHR). Where an order has been made by the House of Lords in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order was wrong.11

Lodging of a claim for compensation: There can be no lodging of a claim for compensation where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision. D. The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism. D.1. Has your country incorporated the Council of Europe recommendations and resolutions in its legislation or taken special measures to distribute and publicise these instruments?

The UK has not incorporated the Council of Europe recommendations and resolutions with regard to terrorism in its legislation. The UK has not taken special measures to distribute and publicise these instruments.

D.2. Has your country adopted substantive and procedural measures specifically applicable for cases where a suspicion about terrorism exists? Please describe which is the role of the judge in the proceedings in these types of cases and indicate in which way his or her role in this case is different from his or her role in ordinary proceedings.

The Special Immigration Appeals Tribunal Act 1997 established the Special Immigration Appeals Commission (“SIAC”). SIAC is a court which hears appeals against deportation on national security grounds.12 It also hears appeals by individuals who are detained under the Anti-Terrorism, Crime and Security Act 2001 pending deportation as suspected international terrorists.

SIAC is presided over by a High Court judge, who sits with an immigration judge and someone with a background in security. Unlike UK criminal courts no wigs or gowns are worn, and there is no jury.

SIAC has special procedural measures which enable it to take account of sensitive evidence, including sensitive intelligence material. SIAC sits in ‘open’ session where evidence is not sensitive. The appellant and his/her lawyers may participate in open sessions, and members of the public may attend the proceedings.

However, if SIAC is satisfied that evidence must be withheld from the appellant in order to avoid damage to the public interest the case is heard in ‘closed’ session. The appellant, his/her lawyers, and the public, are excluded from closed sessions. In these sessions the appellant's interests are represented instead by a ‘special advocate’ drawn from a panel of security-cleared Counsel. The special advocate may make submissions and cross-examine witnesses in the same way as the appellant's own lawyer in open.

One of the main distinctions between SIAC and other courts of law in the UK, from a judge’s perspective, is that the Commission is entitled to take account of material which has not been shown to the appellant and his/her solicitors. Usually, if public interest immunity is claimed, the court is unable to rely on that material when reaching its decision. Further, unlike other UK courts, the Commission has to deal with special advocates, who represent the appellant’s interests but who are not the appellant’s lawyers.

D.3. What means does your country use to reconcile the demands of security and of the protection of human rights in cases where suspicion about terrorism exists? Please indicate the measures taken, in particular in the fields of criminal law, administrative law, admission, exclusion and deportation of aliens, and preventive actions.

Can you quote some specific cases where the question about such reconciliation was raised?

Criminal law:

The Anti-Terrorism, Crime and Security Act 2001 provides, inter alia,: (a) police powers to seize terrorist funds anywhere in the UK; (b) police powers to freeze funds at the outset of investigation; and (c) police powers to monitor accounts which may be used to facilitate terrorism.

Administrative law:

Legislation is currently going through Parliament which would make identity cards compulsory in the UK. At present no such obligation exists. Proponents of the proposed legislation see it as a tool in the fight against terrorism.13 Opponents, meanwhile, are concerned that compulsory identity cards strikes at the heart of civil liberties.14

Admission, exclusion and deportation of aliens:

As noted above, SIAC has been established to hear appeals against deportation on national security grounds, and appeals by individuals detained under theAnti-Terrorism, Crime and Security Act 2001 pending deportation as suspected international terrorists.

In a landmark judgment which highlights the problems of balancing security considerations and civil liberties in the UK, the House of Lords ruled in 2004 that section 23 of the Anti-Terrorism, Crime and Security Act 2001 (which permitted the indefinite imprisonment without trial of foreign nationals suspected of international terrorism) was a disproportionate and discriminatory response to the threat to the nation.15 A declaration of incompatibility under the Human Rights Act 1998 was made in respect of section 23. The government responded to the ruling by repealing the relevant section and introducing a system of control orders under the Prevention of Terrorism Act 2005.

Another case which highlights the tension between security considerations and human rights is A v Secretary of State for the Home Department.16 This case required the House of Lords to determine whether the Anti-terrorism, Crime and Security Act 2001 required SIAC to exclude from consideration of an appeal all evidence allegedly obtained through torture. The House of Lords ruled that such evidence was inadmissible.

Preventive Actions:

The Serious Organised Crime and Police Act 2005 introduced, inter alia, restrictions on the right to protest within 1km of the UK Parliament. Demonstrators now have to apply to the Commissioner of the Metropolitan Police six days in advance of any protest, or if this is not reasonably practicable then no less than 24 hours in advance. The Act has created tension between demands of security and of the protection of human rights.

This tension is demonstrated by the case of R. (on the application of Haw) v Secretary of State for the Home Department.17 Brian Haw, who has protested outside Parliament for many years, challenged the applicability of the new legislation to his protest. The High Court ruled that Mr Haw's protest was not covered by the legislation because his demonstration started before the Act came into force, and therefore did not require authorisation.

The Terrorism Act 2000 gives the police power to stop and search anyone in a specific area if it is thought expedient for the prevention of acts of terrorism.18 The scope of this legislation is the subject of a challenge at the House of Lords. Judgment is expected shortly.

1 [1991] 1 AC 603.
2 HRA 1998, section 3.
3 E.g. the House of Lords and the Judicial Committee of the Privy Council.
4 HRA 1998, section 4(2).
5 HRA 1998, section 4(4).
6 European Communities Act 1972, section 3(1).
7 HRA 1998, section 2(1).
8 [2005] UKHL 58, 88. See also Buxton LJ, Zorig Batayav v. Secretary of State for the Home Department [2005] EWCA Civ 366 CA (Civ Div), 11.
9 [2004] UKHL 56, 57.
10 HRA 1998, section 2(1).
11 R v Bow Street Metropolitan Stipendiary Magistrates ex parte PinochetUgarte (No. 2) [2000] 1 A.C. 119, 132.
12 Section 97, Nationality, Immigration and Asylum Act 2002.
13 Hansard, 21 Dec 2004, Column 1943, Secretary of State for the Home Department (Mr. Charles Clarke).
14 http://www.liberty-human-rights.org.uk/privacy/id-cards.shtml.
15 A and ors, X and another v Secretary of State for the Home Department [2004] UKHL 56.
16 [2005] 3 W.L.R. 1249.
17 [2005] EWHC 2061.
18 See R. (on the application of Gillan) v Commissioner of Police of the Metropolis [2004] EWCA Civ 1067.

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