Hale: Human Rights in the Age of Terrorism

Good afternoon everyone. Welcome to the 28th annual Thomas Ryan Lecture. Thomas F. Ryan received his JD from Georgetown University Law Center in 1976 and at the time of his death, he was serving as law clerk to Judge John Lewis Smith of US district court here in DC. He is survived by his wife Christine F. Ryan we are delighted that Christine Ryan could be with us tonight. And his two children, Thomas and Mary in addition to his law school - Georgetown law degree, Tom attended Georgetown preparatory school and received his bachelor's from Georgetown College. In his honor, Hugh A. Grant an alumnus, a long time benefactor of the university established the Thomas F. Ryan Lecture and it's appropriate this - that this lecture series which we hold annually to enrich the education of Georgetown students and faculty is named in the memory of Thomas F. Ryan - an outstanding young man who is distinguished education and professional career, honored his University and his Law School. The back of the program shows you the list of distinguished speakers we have had in the program and we have another wonderfully distinguished speaker with us today. Dean Gaston will introduce our speaker in a moment, but I just wanted to take one moment to say a word about Baroness Hale who I had met originally through her judicial opinions. The House of Lords the law lords issued a very important decision a couple of years ago called matter of "A" which involved the United Kingdom statue that had authorized the detention of suspected terrorists. And the law applied only allowed the detention only of non nationals non UK citizens and not the detention of citizens and it was challenged under the British human rights act which incorporated the European convention on human rights into UK law well actually had been incorporated previously, but allowed judges to rule on the incompatibility between the UK law and the norms of the convention. And the law lords invalidated law, held it incompatible with the convention and in Baroness Hale's opinion, she ended with the following paragraph, I want to share with you. "Democracy values each person equally, in most respects this means that the will of the majority must prevail. But valuing each person equally also means the will of the majority cannot prevail if it is inconsistent with equal rights of minorities". She then goes on to "the inaugural address of one Thomas Jefferson. Jefferson said, "Though the will of the majority is in all cases to prevail that will be - that will to the right that will to be rightful must be reasonable the minority possessed their equal rights which equal law must protect and to violate would be oppression. I guess he had a British legal training probably I think and then she continues this way no one has the right to be an international terrorist, but substitute black, or disabled or female or gay or any other similar adjective for foreign before suspected international terrorist and ask whether it would be justifiable to take power to lock up that group but not the white, able bodied male or straight suspected international terrorist, the answer is clear". It's a wonderful opinion, we are delighted to have you with us Baroness Hale and I turn things over to Larry Gaston for the official welcome and introduction. Thank you. Good afternoon, thank you everyone for coming. I have the distinct privilege and and happiness to introduce to you the right honorable Baroness Hale - Baroness Hale of Richmond for those of you, who don't know Richmond it's a it's in Yorkshire and she is a northern lass, just like my wife. She is been a distinguished jurist in residence here at Georgetown law for the weekend and wanted to thank the supreme court institute for doing such a wonderful job in hosting the Baroness here for these for these few days. I thought I would introduce Baroness Hale by telling you what you already know and then of telling you what you may not know, but what you probably suspect. She - what you already know is she is the first woman in the history of the judicial House of Lords, the law lords as Alex mentioned is soon to become with a different name "The Supreme Court Of The United Kingdom" and in a new building in west minister square and Baroness Hale is in charge of getting that building's art and refinements ready for the Law Lords or then The Supreme Court to go and so it's a it's a historic moment in the history of the UK, she is also the chancellor of university of Bristol a distinguished university in the UK and a visitor at Girton college Cambridge university where she is in an alumnus but this is what you may not know about Baroness Hale you probably would have surmized, she has a keen intelligence a wit, humor kindness and generosity, she say no but it's true. She has charmed our entire community for the last few days. I have heard from all of the segments of our community, she is met generously with our faculty, our students, women judges, our global law scholars all the way up to Supreme Court justices and all of them have been really delighted to be with her these days. She has a husband of equal charm and distinction Julian Farrand over there. Julian is a very distinguished lawyer in the UK, an academic and has worked in the field of property law and so we welcome you to Georgetown as well Julian, many of you may recall that a couple of years ago when we opened up the new Hotung centre, she was one of a few international persons of distinction that actually inaugurated the building and we were very grateful for that. Also what that you might not know is is that she has quoted our own Dean Alex Elenkoff in some of her ground breaking opinions particularly one on social group identity and female genital mutilation. On a more personal note, I have known Brenda if I may for many years and since we were both very young, may be so long ago that we might not even dare say it or admit it publicly. We have competing books on mental health law to this day, but don't tell her, hers really is a better one. She had defined her carrier I would define her carrier as a path breaker. The first woman in the law commission, the second woman in the court of appeal, the first woman in the judicial House of Lords and she is among - not only because of her gender but also a path breaker because she comes from a senior academic positions and it's hard for academics to achieve in such a high standing in the judiciary. As a member of the law of commission she has been instrumental in pioneering new legislation in the UK or reformed legislation relating to children, family law, and mental incapacity. So, she has been a great scholar in these areas I would define her as a humanist and it is my distinct privilege and honor to introduce the right honorable Baroness Hale of Richmond to deliver the 20th annual Thomas F Ryan lecture entitled "Human Rights, In The Age Of Terrorism" thank you. Well. Thank you both very much indeed without ridiculously flattering introduction, it's a great pleasure to be here and especially to meet Larry Gaston on his home ground, an icon revealed, it was undoubtedly in around 1976 when we first met and you were young but I was no longer young then but it is great to be here and who would have thought that we would be today where we are now when we first met. I would like to start however with the quotation from one of my judicial colleagues, from the very case that Dean A Elenkoff mentioned the "A" case or as we called it the Belmarsh case because Belmarsh was the high security prison to which these people were committed. And he said "The real threat to the life of the nation in the sense of the people living in accordance with its traditional laws and political values comes not from terrorism, but from laws such as these" To some, his words deserve to rank alongside the great pronouncements of the common law judiciary such as Lord Atkins' famous invocations of Humpty Dumpty in a case called Liversidge v. Anderson, does that bring any bells here? I hope it does, to others he has appealed to the continuity of the British life and British institutions since the days of the Spanish armada and the glorious revolution of 1688, so a part of your history too well his quote "an unfortunate outburst of Anglo Saxon parochialism" this is perhaps an odd acquisition to level against the Jewish judge of South Africa origin, but no matter. I don't want to indulge in Anglo Saxon parochialism, rather I want to follow up the theme of another great South African judge, chief justice Arthur Chaskalson, first president of the constitutional court of South Africa and in a recent lecture, he contrasted the messages sent to the rest of the world by the counter terrorism measures adopted by the government of the United States of America and the guidelines promulgated by the committee of ministers of the council of Europe and those guidelines say "The temptation of governments and parliaments in countries suffering from terrorist action is to fight fire with fire, setting aside the legal safe guards that exist in a democratic state. Let us be clear about this well the state has the right to employ to the full its arsenal illegal weapons to repress and prevent terrorist activities, it may not use indiscriminate measures which could only undermine the fundamental values they seek to protect". Indiscriminate measures of what terrorists use to get their message across, justice Chaskalson was particularly concerned about the scope of the post vested in the president of the United States, sanctioning detention without trail, holding detainees in communicate for long periods, secret prisons, ousting the jurisdiction of the courts, trying detainees before military tribunals and of course the allegations of kidnapping and extraordinary rendition to place his by torture might be used. He clearly hoped from his experience of how quickly terrorists legal standards were be abandoned in apartheid South Africa, but the rest of the world would heat the European rather than the American message. We in the United Kingdom I have to say may be more ambivalent. A prominent Israeli politician once said of the state of Israel quote "We have our feet in the Middle East but our heads in Western Europe", and in the United Kingdom we have our feet in Western Europe but our heads are in the common law legal tradition which we share with you and with most of the Anglophone world. So it saddens us when powerful Jurists such as Justice Scalia make clear that contempt for our European ways. "the courts special reliance on the laws of the United Kingdom is perhaps the most indefensible part pf its opinion, the court undertakes the majestic task of determining and thereby prescribing our nations current standards of decency, it is beyond comprehension why we should look for that purpose to a country that has developed in the century since the revolutionary war and with increasing speeds since the United Kingdom recent submission submission vote to the jurisprudence of European course dominated by continental jurists and legal, political and social culture quite different from our own". Well as we would say in my quote I beg to differ. I do not think that our legal, political and social culture is so different from yours that we should ignore developments in one another's legal thinking, we too are a democracy committed to the rule of law until we got freedom, we too are out of west society made up of many different races religions and languages, we have - it is true - left behind some extraordinarily repressive laws all over the former British empire which we would not have dreamt of imposing on our own citizens at home until very recently, the Israelis, the Indians and many others in the world are still having to cope with that legacy. But we also have a long history of combating home grown terrorism. The most recent events on the 29th and 30th of June of this year were the fifty attempted terrorism plot on British soils since 2001. The police and security services are currently contenting with around 30 non plots, monitoring more than 200 groupings or networks and about 2000 individuals, so said the prime minister in parliament at the end of July. Before then, the main threat was thought to come from Irish terrorism. But Irish terrorism was quite different from Al-Qaeda terrorism. The Irish did not use suicide bombers for obvious reasons, they did not kill people on a massive scale, they did not bomb the London underground they give warning of their impending atrocities. They had defined political objectives which they saw to achieve through recognizable Para military structures, in tracking them down, our security services were usually working alone or perhaps with the help of some European colleagues. The new style terrorists are different in every way in each of those suspects, not least the last tracking them down means as Sir Richard. Dearlove our former head of security services have delicately put it, "Dealing with countries that have very different standards of human rights from my own, with intelligence and police services that may in their way be extremely primitive." I think we all know what he meant. So in meeting those new challenges, we too have turned to the sorts of measures which so concerned justice Chaskalson, but we now have our heads as well as our feet in Western Europe. Member ship of the European union and the council of Europe entails adherence to the European convention on human rights and this inevitably makes our lives complicated than they were when we had an unwritten constitution and no bill of rights than they are in Australia which has a written constitution but no bill of rights and may be even than they are at the united states which has both now. I don't claim at whole that we have got it right, we will be doing things that you like Justice Scalia would find unthinkable and not doing other things which you would find quite acceptable, but four points stand out to me about our experience. First, we don't find it acceptable to draw a firm distinction between what can be done wit British citizens on British soil and what can be done with every one else. Second the search through out the European convection is for a fair balance between the rights of the individual and the interest of the community, what harm will a measure do the right of the individual and what good will it do for the community and can the later justify the former? And of course there is some harm which cannot be justified no matter how much good it will do, you cant use torture no matter how useful they will be to extract information for example. Thirdly the European convection on human rights is a living instrument which develops a standards in human rights jurisprudence generally develop. There is no room in our jurisprudence for originalism of any sort. And fourthly, in the search for that fair balance all three organs of government government, parliament and the courts are engaged in a constitutional dialogue - no one branch has the monopoly either in the protection of human rights, no one branch has a monopoly in the protection of the public - indeed many of us would say, that is a false dichotomy, terrorism is as much a threat to the human rights of individuals as all the laws which are enacted to protect us from it. So I should just say a few words about the technicalities of the constitutional dialogue under the European convection of human rights in the United Kingdom because all though many of you will know all about it, some of you know will have forgotten and so I will remind you at the basics, that dialogue is explicit as well as implicit in our constitutional arrangements. The United Kingdom was the first rectified the European convention in 1951 it felt completely safe in doing so, it thought that the convention already represented what English law already was. It was only after the United Kingdom accepted the right of individual petition to the European court of human rights at the end of 1965 and UK clever lawyers started finding all sorts of ways in which our lord did not - aided by people like Larry may I say. Now, all sorts of ways in which our lord did not match up to the convention standards that we began to realize that we had some way to go and that led to the building up of a campaign to bring rights home to make the convention rights part of the domestic law of the United Kingdom. But the aim of doing so was to do so in a way which did not conflict with the fundamental principle of our constitution, which is parliamentary sovereignty and what we have got as a result is this dialogue. The rights in trying and then the convention became part of UK law in two ways. First, if a public authority acts incompatibly with the convention rights, the victim is entitled either to a defense or to a remedy. The courts to a republic authority said they have to act compatibility with the convention rights. And secondly, whenever it is possible to do so, UK legislation has to be interpreted to be read and given effect in a way which is compatible with the convention rights. Now we are still exploring what the limits of the possible are. There are treaties to be written on interpretation under the human rights act and interpretation under the ordinary rules of strategy. Interpretation, but it is clear that the quest is for compatibility not incompatibility, so interpretation is meant to be the first tool by which we try and make UK law compatible. Nevertheless if an act of the UK parliament can't be interpreted and given effect compatibly with the convention rights, the courts have no power to strike it down or declare it invalid. Thus is parliamentary sovereignty, preserved. The higher courts can declare an active parliament to be incompatible with the convention rights. This doesn't affect the validity of the act or anything done under it and parliament still has a choice whether or not to do anything. There is a fast track procedure for making remedial orders which will put the incompatibility right and this can be operated retrospectively. But generally, new legislation will be required. But the government could if it chose, sit back and wait for the case to be taken to the European court of human rights in Strasburg. And if it failed there as well as in the UK courts, it will be treaty bound, but to compensate the victims and do something about it. So far however, our government has acted to put right every single declaration of incompatibility that there has been. Not that there have been a lot. There will be more in the lower court a lot of them have not survived going up through the system, but they have done what we said. And one of the reasons for that is in part the approach that the courts have taken to a - finding of incompatibility and the interpretation of the convention rights. The rights which are given effect in our domestic law are still the rights which are set forth in the European convention. The convention is an international treaty. And the final arbitrary of the content of the rights to contains is the Strasburg court. So our domestic law can leap ahead of Strasburg if it wants to do so, but when we are considering as a court, the compatibility of the existing domestic legislation, we are limited by the content of the convention rights as interpreted in Strasburg as the senior law lord, Lord Bingham has put it, the duty of national courts is to keep pace with the Strasburg jurisprudence province as it evolves over time no more but certainly no less. And if one of my colleagues Lord Brown put it in a more recent case "no less but certainly no more". We are very conscious that if we go further than Strasburg has gone, although we can confidently predict that Strasburg would go if it got the case, that government can't appeal to Strasburg where as if we wrongly say that something is not incompatible when it is, then the individual victim can go to Strasburg and Strasburg can put it right. But we are not the only people thinking about compatibility. Both the government and parliament are required to think about convention compatibility before legislation is passed. A government minister who promotes a bill before parliament has to make a declaration either on the face of the bill, either that in his view it is compatible with the convention rights or that he knows it isn't but he is going to go ahead regardless. Now we haven't had any of those yet, they all say that they think it's compatible but that's a message not only to the government but also to parliament that part of parliament's duty is to safeguard the rights which the UK has committed to in general, The House Of Lords, in its parliamentary capacity with which I have nothing at all to do other than sharing the building with them is much keener on doing this than the House Of Commons is. I don't know if the same is true here, whether the senate is a stronger guardian of the constitution of them, The House Of Representatives I wouldn't know but The House Of Lords is a stronger guardian of the European convention on human rights than The House Of Commons is. However both houses of parliament have established a joint committee on human rights, the principle objective of which is to check proposed legislation for its convention complains. As Professor Francesco Cloak has put it, "recognizing the dominant role of the executive in parliament under our constitutional system it was in visage that a human rights select committee could strengthen the independence of the legislature in performing its allotted functions under the human rights act" But this is an ongoing debate about how effective the committee has been but it turns out report after report after report, checking on the conventional complains of all sorts of legislation. Now this sort of dialogue between government, parliament and the courts is quite different from the dialogue which one of our previous home secretaries wanted to have. He would dearly have loved to come along to the senior judiciary and say "this is what I want to do tell me if its convention complains" before he have done it. Now I don't know what you think of that idea but I can tell you that our senior judiciary thought it was completely unconstitutional, we do not have a procedure for checking on the constitutionality of legislation before it is passed. They do in in countries - Canada has it and Holland has it and there is no doubt many others that do but we don't, we only express our views on the meaning effect and compatibility of legislation in the context of the facts of a particular case after hearing adversarial argument. We would regard anything else as very dangerous - and some would say and rightly so having myself been a law reformer promoting legislative reform and sitting around a table trying to think of all of possible hypothetical situations in which this legislation might be applied, I know how impossible it is to think of every hypothetical in advance and therefore how dangerous it will be to say "there are no circumstances in which this piece of legislation could operate in compatibly." Nevertheless, despite of the former home secretary's frustrations which I understand. In my view our constitutional dialogue has saved us pretty well so far. There have been compromises and I would like to illustrate the way in which the compromises have worked by looking at four important aspects of the fight against terrorism, preventive measures against suspected terrorists, the acts of UK agents abroad, the use of evidence obtained by torture and modifications to normal due process requirements. So firstly suspicion and prevention. Government's know that it's not just a suspect to terrorists who have human rights. Article two of the European convention requisite everyone's right to life shall be protected by law. This means more than simply having in place laws against killing under legal system to enforce them. It means that governments have a positive obligation to take reasonable steps to protect people against threats which they know about. So we have expanded the reach of the criminal law enormously. I think that you have too but possibly not as enormously as we have to cope with the new terrorism, but the criminal law itself relies on the combination of deterrents before the event and punishment afterwards and quite apart from the problems of gaining convictions in these cases of which more later, the motivations of the attackers as such as these traditional mechanisms are quite ineffective. Even if they were an effective deterrence some, the scale of the damage that can be done is such that governments and people are unlikely to think that deterrents is enough. So they look for preventive measures but the European convention on human rights does not allow long term detention on the basis of suspicion alone, the right to physical liberty protected by article five is unqualified, deprivation of liberty is only permitted in limited defined circumstances, however great the justification, detention in other circumstances is not allowed. I believe the constitution position here is not the similar. The convention does allow for derogations in time of war or other public emergency threatening the life of the nation but only to the extent strictly required by the exigencies of the situation and provided the measures taken are not inconsistent with our other obligations under international law. So as Dean a Elenkoff has has mentioned, our government's immediate response to 9\11 was to derogate from article five in order to promote legislation which provided for the indefinite detention of suspected international terrorists. But this only applied to those foreigners who were liable to expulsion but couldn't be expelled either because there was no other who would take them or because the only place that would take them would subject them to torture or other inhuman or degrading treatment there is case called, 'Chahal' in the United Kingdom in 1996 in the European court of human rights that says that we are not allowed to do that. We can't expel somebody to a country where they would face a real risk of death or torture or inhuman or degrading treatment that in itself is to subject them to that uncontrived articles two or three of the convention. It's not surprising as politicians that the government picked on this particular group of people to legislate against, they knew exactly who they were they, they would have all of my books for ages wanting to get rid, so it work better when you need something to legislate to do in the immediate aftermath of a serious terrorists threat, then to legislate against these two dozen people that you know perfectly well, you would like to get rid off but haven't been able to so far. But the public may have thought risk came mainly from foreigners such as these but the security services and the government knew perfectly well long before the attacks on the London underground on the 7th of July 2005 that they were home grown potential terrorists too. So how could the indefinite detention of one group be necessary to meet the exigencies of the situation of the indefinite detention of an equally dangerous group was not, these was irrational as well as discriminatory. And under article one of the convention, states parties are required to secure the convention rights to everyone within that jurisdiction not just to nationals or even to lawful residents. Hence in the Belmarsh case The House Of Lords held that the derogation order was unlawful, that could be quashed because it was delegated legislation, but we also made a declaration that the act itself was incompatible with the convention rights, this had no effect on the galaxy of the detainees detentions that they stated in Belmarsh or in one case in Melbourne. But that's off what about high security psychiatric hospitals? But parliamentary concerns about civil liberties at human rights had meant that this legislation had a sunset close and it was going to die anyway in March after our December decision unless it was renewed and the government although it huffed and puffed and really didn't like it, to its great credit decided not to try and persuade parliament to renew the legislation and then brave Strasburg, they decided to - put something in its place, it promoted the prevention of terrorism act 2005, now this provides for a different sort of preventive mechanism called a control order and this may be imposed upon citizens, lawful residents and unlawful residents anybody alike. There are two types of control order, that those which deprive a controlled person of his liberty and would therefore require a derogation from article five of the convention and those which merely restrict his liberty and therefore require no derogation. that has as yet been no derogation, the government doesn't think its been depriving any body of that liberty by the control orders that it has promoted, the secretary of state can impose this sort of order if he has reasonable grounds for suspecting that the individual is or has been involved in terrorism related activity and he considers it necessary to make the order for purposes protected, connected with protecting members of the public from the risk of terrorism. The high court then has jurisdiction to determine on judicial review principles whether the home secretary's decision is flawed and last term, we in The House Of Lords in our judicial capacity heard argument about whether conditions imposed in some of these orders are mounted to a deprivation of liberty. Well I will tell you what they were I mean trying to take a vote see what you think, it would just be the interest. They were obviously designed to make the control persons activities easier and less burdensome for the security services and to cut them off from their previous associations, so they were each required to live at a specified address. Usually not where they had live before and usually they were living alone, they had to remain within a specified area when they left that address to where an electronic tag at all times, to have only one land line telephone and no internet access imagine it. To submit - to search each of their homes and persons whenever required, to have all their visitors or any prearranged meetings out side their addresses with limited exceptions including their lawyers vetted in advance. The areas to which they were strict, it usually covered quite large parts of some of our major cities and they did include parks, recreation facilities, health care facilities, shops and Mosques. But they didn't of course cover their usual old homes such as the particular Moscow college or community center which they previously attended, they weren't usually allowed to get back to their previous homes to collect their belongings. Or in one case, get back to the college where he had been preparing for examinations and they weren't supplied with things like television to make that isolation more bearable, they have made hardly any requests for permission to receive visitors or to meet people because no one wants to risk being associated with them. This is not surprising is it? The evidence relied on to show a reasonable suspicion that these people are involved in terrorism largely consists of their associations with known terrorists or terrorists organizations or their associates, giving support to or assistance to someone who is believed to be involved in terrorist related activity is itself a terrorist related activity for the purpose of the legislation, so you can imagine how ever innocent you are and how ever you think your control order friend is, you are not going to send the security services a photo and your address and telephone number in order for them to approve your visiting this person or you. So hard - they have only ever had professional visitors of one sort or another. Well the conditions so far described are undoubtedly a severe interference in the freedom to do as one pleases but it will be hard I think to call them a deprivation of physical liberty. However on top of those, they contained a curfew which is backed up the tag, by an obligation to clock and clock in whenever they left and returned in the day and like all the conditions by the sanction of imprisonment for up to five years if they were disobeyed and in the first group of cases that we have, the control persons we required to remain at home for eighteen out of the twenty four hours every day or to put it - another way around, they were allowed out from ten o clock in the morning to four o clock in the after noon. So think about the previous conditions and think about that curfew. Is that a deprivation of liberty? Who thinks it is? Who think it isn't? Who doesn't know? Well I think I can confidently say that there is a plurality of view in this room for the view that it is a deprivation of liberty rather than a mere restriction or movement, that is veryvery interesting. I have told it to you straight that's how it is. You will be interested to know that both the high court judge who dealt with these cases and the court of appeal agreed with the plurality view. On the other hand a curfew of 12 hours with the same as I said to conditions has so far been held to be acceptable. So there we are I suspect that their lordships when the judgments eventually come out will not be unanimous on this issue. The leading transport case points out that the starting point must be the concrete situation of the person concerned, an account must be taken of a range of criteria such the tight duration effects the manner of implementation of the measure in question, but it also emphasize the difference is none the less many one of degree or intensity, a not one of nature or substance and the classification sometimes proves to be no easy task in the some board line cases are a matter of pure opinion. So what on earth is the rational criterion for distinguishing between the two, is it how different it is from an open prison or how different it is from normal life, is it how much one is cut off from society and under the control of big brother, is the bottle half full or half empty as I say? I can't tell you now what the decision is going to be because I don't know - I know what my decision is but not going to tell you that. I have to say of course that there are other objections to these control orders under other articles of the European convention particularly the right respect for private life and other things as well. The other problem with them is that seven of the control persons have already gone missing. So however much there a deprivation of liberty, that not a tremendously effective depravation - liberty - so if and when we come to consider proportionality questions, there might be some difficulty in establishing a rational connection between the restrictions imposed and the legitimate aim of seeking to prevent terrorist activity. So order, if you cant lock up them and control orders are both problematic in themselves and ineffective, can we not export the problem as some other people have so successfully managed to do. Well sometimes we can, if the suspected terrorist is a foreigner who can be returned to his own country, one of the ironies about the Belmarsh case was that one of the detainees turned out to have both French and Algerian nationality. While we couldn't send him back to Algeria because of that country's human rights record, we could send him back to France. So we put him on Euro style and he went to Paris and he was treated there by the French security services and promptly let go. Now if this person was as dangerous as the British security services thought he was, there wasn't turning to tremendously rational about that approach to controlling his activities either wasn't that? So there we are home grown suspects however cannot be exported but, what if anybody happen to be apprehended while abroad? People have been known to end up in detention facilities in that way. Now if perhaps unlikely that the British government would seek to set up their own version of Guantinamo bay because they have made representations to the united states government for the repatriation of British citizens who were detaining there and the week after next, I was to have been sitting on a case which was against the British government and their refusal to make similar representations for long term British residents who are in Guantinamo bay, but that case has just been taken out of the list. So I suspect that something has happened which I don't yet know about. But for those reasons I would have thought it unlikely that our government would try and setup such an institution but could it be done? There are after all far flown corners of the world of which the united kingdom once enjoined a a considerable degree of control and did not extend the European convention to. Well last term we had an extremely significant case which concerns six Iraqis who died in Basra allegedly at the hands of occupying British forces between the official and the facilities and the transfer of sovereignty back to the Iraqis. There relatives wanted a proper enquiry into how they had died. The duty to protect the right to life in article two of the European convention requisite that there be some form of effective official investigation when individuals have been killed as the result of the use of force into raillery by agents of the state. And the duty of member state as I have said is to secure the convention rights to everyone within their jurisdiction. So were any of these six people within the jurisdiction of the United Kingdom and if they were, did the human rights at operate to give them a remedy in the United Kingdom courts as supposed to just in Strasburg? Well, one of the victims, Abu Moosa had been beaten to death in a British detention facility. Having contested the issue at first by the time the case came to The House Of Lords, the government conceded that he was indeed within the jurisdiction of the United Kingdom. The other victims had been shot at checkpoints, or during parameter searches or caught in the cross fire. The United Kingdom was undoubtedly in belligerent occupation at the time and thus their duties to the civilian population under international humanitarian law, but the house unanimously held that the degree of control which we had at the time was not sufficient to bring these people under the UK's jurisdiction for the purpose of the European convention. However a majority of is held that if somebody was within the UK's jurisdiction, the human rights act applied even though what had happened was outside the territory of the United Kingdom. So although, it was on the UK law that we were changing and the human rights act that operated against the acts of UK public authorities where ever they might be. So if you are with in the jurisdiction, you had a remedy. Our civil liberties, NGOs were delighted. This includes liberty with which professor Gaston - who was formerly the director of liberty, so he might be quite pleased to they were thrilled because that meant that we couldn't in effect set up a UK version of Guantanamo bay because undoubtedly that would fall within the jurisdiction of the united kingdom for the purposes of the convention and the human rights act would apply which is of course a much speedier and more effective remedy than having to wait to go to Strasburg. Yes that would be the event. However, it doesn't do to be complacent, does it? Nobody doubted that what happened to Abu Moosa in Basra, was both a crime and a breach of military discipline. The alleged perpetrators were tried by court-martial presided over by a high court judge. One person pleaded guilty to comparatively minor offense, I think he got 12 months imprisonment. The others were acquitted. Serious crimes had undoubtedly being committed, but identifying the perpetrators to the requisite standard of proof was impossible and that is of course why Abu Moosa's father wanted a proper independent enquiry into the circumstances. And among the many troubling features of the case, was that there seem to be uncertainty prevailing at operational level amongst the British forces in Iraq about whether certain techniques for holding and interrogating detainees were or were not acceptable. And these techniques which they were advised were acceptable included hooding and keeping them in stress positions for lengthy periods of time and yet these were among the five techniques which were being condemned well as tortured by the European commission on human rights and as inhuman treatment and that will equally contrary to article three by the European court of human rights when they had been used against suspected IRA terrorists in the early 1970s. So our law had prohibited that since then. There was no doubt about it and yet there seem to be doubt at operational level, no doubt because a view was taken, the you don't have to worry about the ECA job when you are in a country like Iraq in such a long way away. It's different, isn't it? So we did understand that it was very important that those standards should apply wherever UK agents were operating. We have also being quite clear in our courts but that we may never rely on evidence which is or may have been obtained by the use of torture. There was a second round in the Belmarsh case because some of the intelligence relied upon to make the detention orders might have come from countries whose police was so delicately described by Sir Richard Dearlove as primitive. Now whatever use the security services might make such information of courts could never use it. By majority however The House Of Lords decided that it had to be established that the evidence concerned was obtained by torture. Lord Bingham the senior law lord who is one of the decentives said this "this is a test which in the real world can never be satisfied the foreign torturer does not boast of his trade, the security services do not wish to empanel their relations with regimes where torture is practiced. The detaining is in the dark, it is inconsistent with the most rudimentary notions of fanes to blindfold a man and then impose a standard which only the sited could hope to meet" in other words as professor Moneghetti has put it "the overall effect of the decision might have been to contempt all torture unequivocally was making proof of its occurrence or possible occurrence impossible as a matter of practice" in reality there fore the government won the case, but it does mean that there will be less point in exporting a person for interrogation under torture abroad as the results would not be admissible in any UK court. I was going to quote here another best of Anglo Saxon parochialism from my noble friend Lord Hoffman but time is pressing so I won't - now one of the reasons why Lord Bingham referred to a blindfold, was to do with the procedures for imposing these control orders. Every one agrees that prosecution is preferable to preventive detention or control. Proof of actual misdeeds is preferable to suspicion, due process is preferable to secret trials and parliament put some emphasis on this in the 2005 act by saying that the home secretary had to consider and consult whether a prosecution was practicable before making a control order, so one of the issues is whether that is a condition president to making a control order, and he has got - but he said he got to keep it under a continuous review, but there are huge obstacles to a successful prosecution. The difficulty of finding admissible evidence of guilt and the problems of disclosing this to the accused. In the UK we have a rule that intercepts of postal and telecoms communications are inadmissible in any court with out an express exception. We have this rule not because these intercepts are illegal we have got a machine refill allowing them, they are inadmissible because the security services don't want them to be admitted, they think that admitting them would disclose too much about their contacts or their method or disclose their lack of contacts or their lack of methods and that this would be deleterious to their relations with certain foreign security services as well. In the control order cases how ever the judge who is checking the order is entitled to see every thing which the home secretary who made the order, so including intercept evidence but then how do you with that in relation to the controlled person? It cannot be disclosed to the control person if there are security objections to its disclosure which are upheld nor does he have to be present at the hearing. If there are security objections in the disclosure of this information, the court appoints a security cleared special advocate of the control person and the special advocate can take instructions from the client up until the time when he sees the secret material, he can try to persuade the court that it doesn't have to be secret, he can also test the material by cross examination and argument but he is not allowed to talk to the client after he have seen it unless the court gives leave, and we understand that in practice the court has not give leave so far and as one of the special advocates has said "with heavy hard some times clients can be a terrible nuisance but when you don't have one you certainly miss him" So the situation is that the control person may end up with severe restrictions upon in his liberty based on suspicions about his conduct and predictions about what he may do in the future about which he knows very little. The home secretary is supposed to summarizes the basics of the case in the application though in practice this is been formulated can be pretty useless. But even if the control person knows the allegations and he does normally know the basis of the allegations, he may very well not be told what the evidence is to support those allegations. This is why Lord Bingham preferred to a blindfold. Now, ironically the special advocate procedure was adopted in immigration cases first and that was after the Chahal case in which this Strasburg court had heard - had found that Mr. Chahal did not have access to a court to have the legality of his detention decided and the court recognized that the use of confidential material may be unavoidable when national security is at stake. But the national authorities could not be free from effective control by the domestic courts. There were techniques which both accommodate legitimate security concerns about the nutrient sources of the intelligence information and yet acquire the individual a substantial measure of procedural justice. And the Strasburg court said this because of a Canadian procedure which was very like the special advocate procedure and that was in use before the Canadian security intelligence review committee. Since then, the Canadians have transferred that jurisdiction to the courts and given the court, the power to act on undisclosed material with out a special advocate procedure. So there is a bit of a kind of circle going on here. and in a case called 'Charkaoui' - the supreme court of Canada has recently held that this was contrary to the principle was a fundamental justice and couldn't be justified because they haven't got something like a special advocate procedure, say we seem to be chasing one another's tails round and round and round. But we have got to decide whether the use of the - or the possibility of the special advocate procedure being used is such as to make the control order regime procedurally incompatible with the right to a fair trial which is entailed in article six of the European convention. One of the points about this is this is not an emigration case. This is not an expel somebody from the country case, it's not can we disclose not a - public interest immunity vetting the documents case. It is a case which is going to decide whether or not, these people can be subjected to these severe restrictions on their liberty. So in the very least it's the determination of their civil rights and some would say, they came to the determination of a criminal charge, so either way there has to be a fair trial. And there is of course a serious distinction between keeping some information secret and keeping information which is critical to the determination of the case secret. I believe that's the distinction that is recognized in your procedures here. so if this this procedure is to survive, the judges will have to be very clever to ensure that the control person knows enough about what the case is about before the special advocates take over to be able to give some instructions and then to ensure that the evidence is subjected to as full a scrutiny is possible in the circumstances and this will not be an easy task and if can't be done, the government would have to choose between withdrawing their objections to the advocates consulting the client after disclosure or withdrawing the case. I gather however that experience of criminal trials in the United States under the classified information procedures act has shown that it often can be done. And I am relying on that on a Brenden Center report from 2005 which was drawn to our attention among the materials in the case that we have just got under consideration. Now some might think it's going to be so difficult to operate these rules in a way which is compatible with the right to a fair trial that the simpler solution is just to make a declaration of incompatibility and say 'no, this isn't going to be compatible and leave the government to decide whether they want to try interrogate from the convention' which will be a much harder decision for them to take. Also an easier solution then trying to get the judges, to operate in a way that would be compatible. So, those are the dilemmas that we are facing, that is what I have to go back to write an opinion about next week. The troublesome fact remains that the issues are reasonable suspicion, not proof. The evidence may depend heavily on guilt per association deduced from telephone contacts and other quivered monitoring and who much who how many people know how much dependents upon leads obtained by questionable means in other countries. But we can't solve the problems by exporting them as I have explained, so we have to look for solutions at home and so far the dialogue between government, parliament and the courts has led us to submitting uneasy compromises, but it is still ongoing. And it is surely a good thing. It's best conducted by recent interaction between the three organs of government each acting in their own spear. For myself, I would prefer to see the normal processes of the criminal law, modified to include the admissibility of intercept evidence and modified along similar lines to your own legislation so that it can be used more effectively against terrorist activities rather than relying on these preventive control measures. But it's not my job to propose legislations, so that's all right. The the way in which the dialogue works is that "new powers must be sought and justified by the executive, publicly debated and approved by the congress and subjected to interpretation and review by independent courts. It is through the same process that reasonable compromises between the government's legitimate secrecy interests and the demands of fair criminal adjudication are likely to emerge, this is after all the democratic process, I am quoting those words from the Brenden Center's Report which I have just referred to that almost identical to the words that I had previously written before I had read that report. "It seems to me that we are all engaged in the search for the dialogue for the accommodation for the proper adjustment with these fundamental between these different fundamental rights which we as a democratic society have resolved to protect and that is how the democratic dialogue is supposed to work. Thank you all very much indeed for listening to me.