Human Rights Lexicon: Security v Rights and the Case of Binyam Mohamed
In this, the third contribution to today’s Human Rights Lexicon, Colin Murray–a regular contributor to HRinI–takes on the tensions between rights and security looking at them in the context of the Binyam Mohamed Case.
Human rights and national security exist, at one level, as interests upon which many legal systems place a high value. Much has been written about which interest trumps the other in England and Wales and as to the shifts in the balance between these interests since the (UK) Human Rights Act 1998. But despite assertions that the HRA tilted the balance in favour of the individual’s interests in her human rights and away from the societal interest in national security, in truth no such uniform approach on the part of the judiciary is evident.
Even where the absolute prohibition on torture under Article 3 ECHR is at issue, the judiciary have been equivocal. In A (FC) v Secretary of State for the Home Department  UKHL 71, the House of Lords may have rejected the government’s assertions that it had the legal right to rely on evidence obtained through torture before the Special Immigration Appeals Commission if the torture occurred outside the UK and the UK and its agents were not complicit in the torture. Nonetheless, when it came to allocating Security Service resources, Lord Brown was of the opinion that ‘[n]ot merely, indeed, is the executive entitled to make use of this information; to my mind it is bound to do so. It has a primary responsibility to safeguard the security of the state and would be failing in its duty if it ignores whatever it may learn or fails to follow it up’ (at ).
The two dramatic rulings of the Court of Appeal in the case of Binyam Mohamed last month highlight this struggle between “human rights” and “national security”. The case focused on whether or not the courts would compel the British government to release information it had received from the US authorities detailing treatment of Binyam Mohamed, an individual who had been held by the US in various sites including Guantanamo but who was never charged with any offence.
The first ruling ( EWCA 65) granted access to redacted paragraphs of a Divisional Court judgment detailing that Mohamed’s treatment amounted to at least inhuman and degrading treatment (see the Appendix to the decision). The decision of the Lord Chief Justice took pains to emphasise that, ‘[j]ust as terrorism is international, so the process of intelligence gathering needs to be international. Intelligence comes from many sources, some at home, some abroad. Co-operation between the intelligence services of friendly nations is a critical element in the battle against the terrorist and without mutual inter-dependence based on trust, the risks would be almost irremediably heightened’ (at ).
However, the court did not develop this reasoning as a basis for protecting the secrecy of information gained in confidence from foreign intelligence agencies. Instead, an interesting focus of judicial attention in the decision became the government’s argument, through Jonathan Sumption QC, that ‘the Divisional Court’s decision was in many respects “unnecessary and profoundly damaging to the interests of this country”, and indeed that part of the reasoning of the Divisional Court was “irresponsible”.’ (See ). This name calling was attacked by Lord Neuberger, who asserted that ‘I would certainly not accept that the conclusion in the fifth judgment could fairly be described as “irresponsible”, as suggested by Mr Sumption. … The Foreign Secretary’s case on redaction before the Divisional Court was, to put it mildly, not assisted by the remarkably drip-fed way in which the evidence was presented, and I do not think that the arguments advanced [in the Divisional Court] were entirely the same as those addressed to us.’
The second ruling dealt with the controversial decision by Lord Neuberger to reword Paragraph 168 of his original decision in light of government fears of the repercussions it might have for the moral of the Security Service and public confidence in its operations. The rewording left only an uncontroversial statement that ‘witness B [a Security Service operative who continued to liaise with the US authorities despite being aware of their treatment of Mohamed] is currently under investigation by the police.’
However, after this rewording became public, the Court of Appeal had to reconvene to consider this decision. In their second judgment ( EWCA Civ 158), the court restored Lord Neuberger’s specific criticisms of the role of the Security Service in the Mohamed case to damning effect; ‘the Security Services had made it clear in March 2005 … that “they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services’ general ethics, methodology and training” … indeed they “denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government”. … Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials’ (at ).
It could be argued that these cases, rather than displaying an overwhelming victory for “human rights” in the battle with “national security”, instead display a spectacular failure in the government’s handling of such high profile cases. Jonathan Sumption QC’s barracking of the Divisional Court judges as “irresponsible” and the implication by the media that his request that paragraph 168 be reworded amounted to an attempt to sway the judges in this case rendered the decisions by the Court of Appeal inevitable if the dignity of the judiciary was to be maintained.
This is far from the first time that a perceived threat to the standing of the courts in society has driven judicial responses to a case. Lord Atkin’s famous dissent in Liversidge v. Anderson  AC 206, involving a challenge to powers to detain individuals without trial during World War II was predicated upon his fear for judicial authority if the courts were seen to be co-opted by the executive (at 244): ‘I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive.’
As Heuston identified, the dignity of the judiciary was a major concern for Lord Atkin in this decision, and some of his colleagues bridled at the accusation that they had been co-opted by the executive. However, he had clearly hit a nerve, because Stable J, dissenting in a later detention case but finding his hands tied by Liversidge wrote to Lord Atkin to complain that instead of being treated as ‘lions under the throne’ the judiciary had been reduced to ‘mice squeaking under a chair in the Home Office’ (‘Liversidge v. Anderson in Retrospect’, (1970) 86 LQR 33, 49).
In Mohamed, the government’s handling of the case pushed the judges involved into a position where they would be held up to similar public ridicule as “creatures of the executive” if they had reached any other conclusion. Suggestions that these decisions display a particular sea change in judicial attitudes towards human rights should therefore be treated with caution. Although the ulterior motive of protecting the judiciary’s reputation did not prevent Lord Atkin’s speech from being one of the most celebrated dissents of the twentieth century the same will not be said of the decisions in Mohamed unless the criminal justice system displays ultimately similar robustness in dealing not simply with Witness B but with elements within the Security Service willing to flout the prohibitions on torture and inhuman and degrading treatment.