The status of international and foreign human rights norms in domestic constitutions

As is apparent from the briefest examination of the relevant constitutional provisions of Spain, South Africa and the UK, the status of international human rights norms varies significantly from constitution to constitution. In Spain for example, the framers of the 1978 Constitution moved quickly after the death of Franco to import a strong international dimension into the domestic protection of fundamental rights and liberties.Footnote ⁷ Thus Article 10.2 of the Constitution states that:

Less insistently, the South African Constitution provides that the Constitutional Court when determining the scope of rights and freedoms guaranteed by the national constitution “must consider international law” (emphasis added).Footnote ⁹ In a similar type of command, s.2 of the UK's Human Rights Act 1998 requires the courts to “take account” of rulings from the European Court of Human Rights.Footnote ¹⁰ The 1998 Act's supporters did not favour giving binding status to Strasbourg jurisprudence. In the parliamentary debates, the Law Lord and cross-bencher Lord Browne-Wilkinson praised the “excellent” jurisprudence of the Strasbourg Court before going on to declare that he would nonetheless be “unhappy” if stare decisis applied to the Court's rulings. In his view, the inclusion of new member states “drawn from jurisdictions 10 years ago not famous for their observance of human rights …” meant that it could be “dangerous” to be bound by Court's rulings.Footnote ¹¹ For the Government, the Lord Chancellor, Lord Irvine was of the view that obliging domestic courts to follow the European Court's rulings would set up an internal conflict with the principle of parliamentary sovereignty which the Act preserved. More positively, he suggested that, on those occasions where it was right for domestic courts to depart from Strasbourg, the departure might “give a successful lead to Strasbourg.”Footnote ¹²

In the absence of any formal or express constitutional authorisation or permission to refer to international human rights law (or, indeed a bar), the courts may simply enjoy a discretion to make such reference as they see fit. This appears to be the position in the United States, although the practice of referral at Supreme Court level is not without its forceful critics. As shall be shown below, the citing of international human rights norms by the Supreme Court has on occasion served to confirm the existence of an international consensus on a disputed human rights topic which in turn been deployed to inform an interpretation of relevant aspects of the domestic constitution.

Turning to the relationship between national constitutions and the jurisprudence of other nations' constitutional courts, it is apparent that the expressly permissive provision of Article 39(1)(c) of the South African Constitution (“a court … may consider foreign law.”) is the exception rather than the rule. More commonly, the citing of foreign norms is largely unregulated by constitutions, leaving the judges to exercise their discretion as to whether, and in which circumstances, the practice is appropriate. As Hirschl has noted, constitutional courts today are more likely than their predecessors to acknowledge foreign public law norms as they “frame and articulate their own position on a given constitutional question.”Footnote ¹³ In this regard, it has been remarked that legal practice may simply be in harmony with a much wider pattern of globally inter-dependent exchanges in the realms of economics, technology and culture.Footnote ¹⁴ Just as those parties appearing before the courts interact increasingly with others beyond national boundaries, so inevitably are courts confronted with the existence and practices of other legal systems. Moreover, lawyers acting for litigants are likely to have access to a range of previously unavailable foreign legal materials through electronic databases and it would be surprising is if the results of database searches had not begun to filter through from counsels' submissions to court judgments.Footnote ¹⁵ Additionally, as Slaughter has noted, reference to the jurisprudence of foreign courts is more likely when the domestic court perceives its foreign counterpart to be engaged on a “common enterprise”Footnote ¹⁶ and displays in its jurisprudence a commitment to values shared by the domestic system. The types and range of reasons for resort to comparative materials will be examined in more detail in a later section of this discussion.

Two objections to the citation of foreign judgments – Montesquieu and American “exceptionalism”

The post 1945 international consensus on the centrality of human rights in constitutional design might appear to have consigned to the status of a historical footnote Montesquieu's denial that knowledge of other legal systems could prove a source of enlightenment to those tasked with domestic reform. In The Spirit of the Laws he argued that the laws of each nation “should be so appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can suit another”.Footnote ¹⁷ Montesquieu's central objection was that the laws and jurisprudence of any nation were so inextricably bound up with its own history, politics, institutions and wider culture that any quest for transferable norms and comparative enlightenment would almost certainly be a non-starter.

In contemporary constitutional law writing, Montesquieu's culture-specific view of legal rules finds an echo in the work of the First Amendment scholar Robert Post whose analysis of the contrasting levels of expressive freedom in public and public domain discourse draws upon an understanding of a specifically US culture of freedom of speech.Footnote ¹⁸ Thus, the reconciliation that US defamation law attempts between public figures and those who write about public figures represents a peculiarly American conception of what is entailed by the demands of informed self government. The toleration by constitutional courts of robust and even scurrilous comments about politicians and others in the public domain is said to reflect wider US constitutional culture and says something about the “national character.” The centrality of this understanding is best understood by noting that if its substantive terms were any different (and say far less indulgent of critical speech) a central component of how we think of US law and culture would no longer be present. Representing a different set of cultural understandings, English defamation law has never granted an equivalent level of protection to publications about public figures. One way of understanding this is to claim that English political life has long subordinated the value of a free press to what were viewed as more important ideals of individual reputation and honour. English defamation law would not be English defamation law if it was suddenly to import the actual malice/reckless disregard for the truth rule from Sullivan v. New York Times.Footnote ¹⁹ Of course, domestic reluctance to embrace the US rule does not of course mean that no adjustment or modernizing of English defamation law has been needed to reflect the greater status of the media's freedom of expression claims, rather that, as with the Reynolds v. Times Newspapers reforms to the defence of qualified privilege, the preferred modification could be supplied incrementally by the courts via the common law.Footnote ²⁰

Aside from arguments that proceed from the distinctness of legal cultures, a separate set of objections to the practice of referring to foreign constitutional norms is to be located within a school of thought commonly referred to as “US exceptionalism”. The essence of this attack on the relevance of foreign norms comprises two main strands – source selectivity that serves as a vehicle for judicial policy-making and, secondly, a sovereignty-based objection. Each will now be considered. The first strand of US exceptionalism takes as its starting premise the fact that judicial reliance upon the jurisprudence of foreign courts is of necessity going to be selective. To compound matters, frequently no clear methodology is adopted to explain why certain sources were considered and others ignored, leaving its practitioners open to accusations of methodological sloppiness and a tendency to judicial activism. The latter charge arises because, critics argue, only those foreign norms that sit comfortably with the judge's moral preferences are ever likely to be invoked.Footnote ²¹ As the US Supreme Court Chief Justice John Roberts pithily remarked at his Senate Confirmation hearing, “Looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them; they're there”.Footnote ²²

The second strand of US exceptionalism objects to foreign norm citation on sovereignty grounds. The suggestion here is that where the Constitution does not authorize or formally give a status to foreign norms, resort to such norms by the court is improper, occurring as it does without a proper mandate from the people or their representatives. The fact that the system of appointments to foreign Supreme Court benches is something over which there can be no mechanism ensuring domestic input or, after the event, accountability to the domestic electorate serves only to exacerbate the matter. These difficulties are further compounded where the judiciary enjoy a power of review over primary legislation and when the foreign source is being used by the domestic court to strike down a measure that has been passed by the democratically elected legislature. It is unsurprising therefore when resort to comparative legal resources is labelled as foreign interference and something to be resisted.Footnote ²³ Consider by way of illustration Justice Scalia's trenchant dissent in Lawrence v. Texas where he challenged the majority's invocation of an “emerging awareness” of a constitutional freedom to engage in adult homosexual relations.

At bottom, the reluctance to be led by others may be traced to the self-view of a significant proportion of United States citizens that the nation enjoys a pre-eminence among civilised countries. As McCrudden puts it, where US citizens are “sufficiently convinced that … (their) role in the world is lead rather than follow, the use of other courts' approaches is unlikely.”Footnote ²⁵

Given this reputation for insularity, it is nonetheless worth noting in passing that the exceptionalists have not had it all their own way on Supreme Court as the recent ruling in Lawrence v. Texas exemplifies.Footnote ²⁶ Delivering the 6-3 majority opinion invalidating a Texan statute that criminalised homosexual intercourse, Justice Kennedy looked to the European Court of Human Rights ruling in Dudgeon v. United Kingdom for assistance in concluding that Bowers v. Hardwick (an earlier Supreme Court ruling that upheld the state of Georgia's prohibition on consensual homosexual conduct) was mistaken.Footnote ²⁷ Neither is this tendency to resort to foreign materials in the quest for domestic constitutional meaning without illustrious precedents. In the 1946 decision Malinski v. New York Justice Frankfurter derived assistance from the English Court of Criminal Appeals in determining the meaning of the Due Process Clause of the US Constitution.Footnote ²⁸

In the UK, whilst not aggravated by the possibility of judicial review of primary legislation in human rights litigation, resort to comparative legal materials nonetheless poses similarly awkward questions concerning judicial forays into the policy-making realm of the constitution and the erosion of parliamentary sovereignty, although, to date, these do not seem to have generated the vociferous level of opposition encountered in the United States. Certainly, there is no explicit or formal legislative authorisation of the practice of foreign norm citation. The most that might be claimed by supporters of comparative inquiry is that Parliament's failure to limit/prohibit altogether reference to foreign constitutional norms indicates a possible acquiescence on the part of the legislature.

In the survey presented below, I examine House of Lords and Court of Appeal interpretations of domestic counter-terrorism measures where the latter engage entitlements under Article 5 (the right to liberty) and Article 6 (the right to a fair trial) of the European Convention. Attention is directed to (i) the quantitative issue of how much of foreign norm migration is occurring and subsequently to (ii) the justifications (explicit and/or implicit) that accompany the practice of citing foreign judgments in selected domestic human rights disputes and (iii) the methodological issues to which the revealed practices give rise. The discussion which follows will seek to test the hypothesis that migration in general and “borrowing” in particular are under-theorised in English judicial thinking. Further details of the methodology are set out in a following section. For the time being, it is important to note that the necessarily selective and small sample of cases analysed in this article suggests the need for caution in formulating definitive claims about what is happening domestically. Further and more detailed examination of judicial practice is needed to discover whether the patterns that emerge with the Articles 5 & 6 cases are replicated in other settings. Before detailing the methodology of this survey however, it is probably useful to be reminded of the types of comparative legal inquiry that have been identified in the literature on the subject.

Types of Comparative Inquiry

In Feeley's account, there are five main purposes behind comparative law inquiry.Footnote ²⁹ These are (i) to be educated about other legal systems; (ii) to assist domestic law reform; (iii) to help fill in the gaps in domestic legal regulation; (iv) to assist in the transnational spread of norms, and (v) to bring about greater harmony and unity across legal systems. Hirschl who focuses upon the type of comparative legal scholarship identifies four main forms that nonetheless map to a considerable extent onto Feeley's taxonomy.Footnote ³⁰ The first is represented by something he labels “free-standing, single country studies.” Hirschl argues that it is actually a misnomer to consider this type of comparative legal scholarship since there is little if any attempt to compare equivalent constitutional practices elsewhere. A second category of writing occurs where the foreign system's rules and norms are employed to engage in reflection about the domestic system and its mechanisms with a view to ascertaining how domestic law might be improved. Of course, the outcome of comparative inquiry may simply be to reassure the domestic court that its norms are to be found among peer states. Nonetheless, the driver for comparative input is the possible discovery that a similar legal system to our own has a better means of reconciling the values and interests at issue in our jurisdiction. Hirschl remarks that this second type of inquiry is particularly prominent in the field of constitutional rights jurisprudence among judges and legal academics, although, in a criticism that echoes the objection of US Supreme Court Chief Justice Roberts, he faults the methodological coherence of the inquiry as “eclectic, at times even scant and superficial.”Footnote ³¹ A third type of inquiry employs descriptions of key features of other constitutions (such as separation of powers, proportionality etc.) in order to “enrich” and clarify the meaning of their domestic equivalents. The notion here is that domestic analysis of the concept in question can be enhanced by the process of multiple description.Footnote ³²

Universalist tendencies

In their respective taxonomies, Feeley's purposes (ii)–(v) Hirschl's types 2–3 reveal that there is a strong universalist strain in much comparative human rights legal scholarship both inside the courtroom and in published academic work. In essence, universalism posits the existence within liberal democracies of broadly similar constitutional problems that require a balancing of competing individual and societal interests according to certain values. To a greater or lesser extent, individuals in all liberal democracies enjoy fundamental human rights to equality, liberty of the person, expression etc. and benefit from institutional arrangements such as the separation of powers and a commitment to the rule of law. Examining say the accommodations made between individual freedom and human dignity on the one hand and the interests of the state and community in safeguarding security may reflect “a conception of a common judicial enterprise among courts in a particular region or even world-wide, a mutual recognition of one another as similarly situated institutions performing similar functions under broadly similar rules”.Footnote ³³

Measuring the domestic impact of foreign human rights jurisprudence – methodological considerations

The analysis which appears below is based upon searches of the Westlaw database of House of Lords and Court of Appeal decisions using each of the following search terms (i) “terrorism” and “Article 5”; (ii) “terrorism” and “right to liberty”; (iii) “terrorism” and “Article 6” and (iv) “terrorism” and “fair trial”. Within these search categories I have sought to locate all instances of judicial reference to a foreign court's ruling in the period from October 2000 when the Human Rights Act 1998 came into force. This provides a timely moment to begin the data gathering since, as McCrudden has argued, the introduction of the 1998 Act served as a prompt to judges to consider how far (if at all) the jurisprudence of other countries might be used in order to arrive at a decision on the meaning of a contested right or freedom. If the view is taken that the Act expresses human rights principles that are universal, we should expect to see a broad selection of national courts represented in our data sample, alongside international human rights bodies such the Human Rights Committee of the ICCPR, and the UN Human Rights Council (and its predecessor the Commission on Human Rights). If conversely, the Act has been perceived as bringing a distinctly European conception of human rights into domestic law, more frequent reference to French and German rulings might be anticipated. McCrudden puts forward a third possibility, namely that the UK judges might use the Act to “domesticate” the jurisprudence of the European Court of Human Rights, rendering it harmonious with common law approaches on rights questions. Were such an approach to be taken, references to Australian, Canadian, US and South African materials might all feature.

The data captured in this survey captures from October 2000 to the present all references to foreign human rights jurisprudence in the Court of Appeal and House of Lords only. A reference could range from, at one end of the spectrum, a form of “distinguishing” (and hence rejecting any persuasive role for the foreign norm), through a passing mention of a foreign case as being of “minor importance”Footnote ³⁴ to, at the other end, detailed discussion of “supportive” jurisprudence and, finally the explicit adoption of the norm as constituting an “authoritative” source in resolving the domestic litigation. Arguably the most problematic boundary lies between rulings exhibiting “minor importance” and those manifesting the characteristics of a “supportive” reference. In attempting to differentiate between cases on this border, I have treated instances of the former as including those cases where the foreign case is one of a number cited briefly or in passing, usually to establish an international consensus. It is of course possible that the judges will accurately describe and define the weight they have accorded to foreign decisions in the very terms outlined above.Footnote ³⁵ Conversely, it remains possible for there to be misdescription of the assistance derived from a foreign decision, either understating or overstating its impact on the court.

The justification for limiting the survey to decisions of the Court of Appeal and House of Lords is twofold. In hierarchical terms, these two courts are situated at the apex of the domestic court system and thus exercise a strong and pervasive force upon courts and tribunal lower down the hierarchy. In practical terms, an additional reason for excluding the reported decisions of the High Court and lower courts and tribunals concerns sample size manageability. I have treated those instances where a reference has been made by the Court of Appeal but, on appeal to the House of Lords, is simply ignored as constituting a form of “implicit” distinguishing and thereby according the form norm no persuasive status whatsoever.

In assessing the impact of foreign human rights jurisprudence, it is important to restate the likelihood that any survey will understate the extent of foreign norm influences. The overriding problem is one of a failure to make an explicit attribution. This may occur for reasons to do with national pride (as was seen above) or simply because there is no formal requirement to acknowledge help from foreign sources. Indeed, to admit to having recourse to such materials runs a risk of an adverse domestic reaction. Roy rightly argues that non-attribution is likely to be most pronounced in relation to core analytical methods and principles. He illustrates this claim by reference to the Canadian Supreme Court's proportionality test formulated in R v. Oakes to determine whether a restriction on a Charter right is a “reasonable restriction” under s.1 of the Charter. Despite the previous establishment and development of the doctrine by the German constitutional courts and elsewhere, the Ottowa Court propounded its version of proportionality without any explicit reference to foreign jurisprudence.Footnote ³⁶ In the survey which follows below, no attempt is made to quantify the extent, if any, of the practice of the unattributed resort to foreign norms.

Justifying the focus on liberty of the person and fair trial rights jurisprudence

Notwithstanding the undoubted diversity of positions within classic accounts of liberalism, such as those of Locke, Mill, Rawls and Dworkin, on the question of the proper relationship between the individual and the state, it remains true that, at the heart of all variants of liberal thinking, lie core values that are common to the ideology. This convergence finds a focus upon the importance of individual freedom and the idea that the just society is one in which the state accords individuals maximum autonomy and dignity. The requirement for the state to show good cause when it deprives an individual of this freedom and subjects him/her to the coercive forces of the state is universally recognised in human rights documents and constitutions and given form inter alia in Article 5 of the European Convention on Human Rights in the context of police powers to detect and prevent crime. This states:

1. 1. Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

   1. (a) …

   2. (b) …

   3. (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

…

1. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to a trial within reasonable time or to release pending trial.

More specifically in the case of counter-terrorism measures, the Council of Europe has reiterated the emphasis in the Convention upon an objective basis for suspicion of involvement in terrorist activities.Footnote ³⁷ The Committee of Ministers' Guidelines on human rights and the fight against terrorism reminds signatory states of the need to respect human rights and the rule of law whilst avoiding avoid any form of arbitrariness, racism or discriminatory treatment of persons.Footnote ³⁸ Anti-terrorist measures must also be proportionate to the aim pursued.Footnote ³⁹ Arrest powers in terrorist cases may only be exercised if reasonable suspicion exists connecting the suspect to the crimeFootnote ⁴⁰ and, pre-charge, the detainee is entitled to regular review of the basis of his detention by a court.Footnote ⁴¹ Under Article 15 of the Convention, it is open to a signatory state under Article 15 of the Convention “in time of war or other public emergency threatening the life of the nation” to bring into force measures that derogate from some of its Convention obligations (including Article 5). Formal notice of the derogation must also be given to the Secretary General of the Council of Europe.

At the trial/hearing stage of any legal proceedings, it is a fundamental principle of the rule of law and the notion of due process that the accused be treated fairly before an impartial court or tribunal.Footnote ⁴² Since October 2000, these common law norms have had to be reconsidered in the light of the fair trial jurisprudence of the European Court on Human Rights under Article 6 which provides:

1. 1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …

2. 2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. 3 Everyone charged with a criminal offence has the following minimum rights:

   1. a to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

   2. b to have adequate time and facilities for the preparation of his defence;

   3. c to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

   4. d to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

   5. e to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

The instantiation of these broader norms in the context of the defendant's right to know something of the case against him and the exclusion of unreliable evidence has of late come to occupy the House of Lords and Court of Appeal in disputes arising out in the post-9/11 landscape of enhanced domestic counter-terrorism powers. Specifically, since A and others v. Secretary of State for the Home Department (No. 1), a central element of counter-terrorist measures in the UK has been the statutory power vested in the Home Secretary to issue non-derogating control orders that place conditions inter alia on the movements and contacts of suspected terrorists.Footnote ⁴³ The process by which the courts examine such orders is governed by the Prevention of Terrorism Act 2005 and detailed statutory instruments (Civil Procedure Rules) and may entail reliance upon materials that are not disclosed to the suspect. Not surprisingly, the seeming “inequality of arms” in this aspect of control order hearings has been challenged before the higher courts. In separate sets of proceedings involving the Special Immigration Appeals Commission (SIAC) to determine the legality of detention under Part IV of the Anti-terrorism, Crime and Security Act 2001, it has fallen to the courts to interpret suspected terrorists' Article 6(1) entitlements when the defence alleges that witness material which the state wishes to introduce into SIAC may have been procured by torture inflicted on the witness by officials of a foreign state.

In the next two sections of materials, the influence of foreign jurisprudence on the rights to liberty and fair trial is considered in the context of House of Lords and Court of Appeal rulings on the legality of aspects of the state's counter-terrorism measures. In total, five rulings (four from the House of Lords, one from the Court of Appeal) were located in which a reference (or multiple references) was (were) made to foreign constitutional norms.

Foreign jurisprudence in domestic Article 5 case law

In R. (on the application of Abbasi and another) v. Secretary of State for Foreign and Commonwealth Affairs and another Footnote ⁴⁴ the Court of Appeal had to rule on whether the Foreign Secretary could be compelled via judicial review proceedings to make representations to the US government on behalf the claimant, a British citizen detained by the US military at Guantanamo Bay as an enemy combatant (or, at the very least explain why he would not make representations). At the time of the action, Abbasi had been detained for eight months without charge and was not allowed access to a court or tribunal to challenge the legality of his detention. His lawyers argued that the arbitrary nature of his confinement (and breach of his fundamental human right to liberty) gave rise to an obligation on the Foreign Secretary's part to raise Abbasi's case with the US authorities. Specifically, the Court of Appeal was asked to consider whether Abbasi might have a legitimate expectation of official assistance arising from the UK's ratification of an international treaty and/or other published government statements that accepted a limited diplomatic role for the government in providing protection to UK citizens where a breach of fundamental rights may have occurred.Footnote ⁴⁵ On the international treaty point, a unanimous Court of Appeal drew support from the High Court of Australia in Minister for Immigration v. Teoh for the proposition that, in the absence of a contrary statutory or executive indication, ratification gives rise to an enforceable expectation to which the State could be held.Footnote ⁴⁶Teoh had previously been cited with approval by Lord Woolf M.R. in the Court of Appeal in R. v. Home Secretary ex p. Ahmed and Patel.Footnote ⁴⁷ As regards the published statements of the government, the Court noted that these spoke of a willingness to “consider” making representations and, as such, a UK citizen could have the “normal expectation” that where he/she was a victim of a fundamental rights violation, the Foreign and Commonwealth Office would not “simply wash its hands of the matter and abandon him to his fate.”Footnote ⁴⁸ This position was consistent with the United States District Court in Rasul which had accepted that the Guantanamo Bay detainees fell to be protected under international law and that diplomatic channels provided a mechanism to address their claims.Footnote ⁴⁹ Nonetheless, the Court of Appeal went on to find that the duty to consider making representations conferred on the Foreign Secretary a very broad discretion whether in any particular case to use the available diplomatic channels and, if so, the precise form of any representation. The width of the discretion enjoyed by the executive was in the Court of Appeal's view “exemplified” by the ruling of the German Constitutional Court in Rudolph Hess.Footnote ⁵⁰ The German Court found that the Federal Republic could take account of the political and foreign policy implications of any response to the prisoner's request that diplomatic means be employed by the federal authorities to secure his release from the custody of the occupying powers on compassionate grounds. Significantly however, the Court of Appeal did not reveal how Hess restated an already established stance of English administrative law. Instead, in his concluding remarks, Lord Phillips M.R. declared.

We would summarize our views as to what the authorities establish follows:

1. (i) …

2. (ii) …

3. (iii) … the Foreign Office has discretion whether to exercise the right, which it undoubtedly has, to protect British citizens. It has indicated … what a British citizen may expect of it. The expectations are limited and the discretion is a very wide one … (emphasis added)Footnote ⁵¹

It could thus be claimed that, rather than “exemplifying” the position in English law, Hess was accepted as an authority that the Court was persuaded to follow as authoritative. Teoh would also appear to come close to supportive status, if not directly in Abbasi itself (where it could be plausibly maintained that the Court of Appeal was following its own previous ruling in Ahmed and Patel) but in Ahmed & Patel.Footnote ⁵²

Ever since the ruling of the European Court of Human Rights in Chahal v. UK,Footnote ⁵³ states wishing to deport persons suspected of involvement in terrorist activities have been unable to send them to countries where there are substantial grounds for believing that an individual would face a real risk of being tortured or being made subject to inhuman or degrading treatment contrary to Article 3 of the Convention. After the terrorist attacks of September 11, 2001, the UK Government entered a derogation to Article 5 of the ECHR on the basis that there was a public emergency threatening the life of the nation.Footnote ⁵⁴ Fresh counter–terrorism legislation in the form of the Anti-terrorism, Crime and Security Act 2001 was passed, Part IV of which allowed the Home Secretary to detain indefinitely without charge non-nationals that were reasonably (i) believed to a risk to national security and (ii) suspected of being an international terrorist.Footnote ⁵⁵ The effect of the measures was to subject non-nationals to indefinite detention without charge, a draconian measure that was not available in respect of UK nationals suspected of involvement in international terrorism. A challenge was taken to the legality of the indefinite detentions provisions the 2001 Act before the House of Lords in A and Others v. Secretary of State for the Home Department.Footnote ⁵⁶ Observing that the UK Government had not entered a derogation in respect of the Convention prohibition on discrimination in Article 14, seven members of the nine-strong bench faulted Part IV on the ground that the new powers of executive detention unjustifiably discriminated against non-nationals. Moreover, the fact that UK Government appeared content to cope with the qualitatively similar threat to national security posed by UK nationals by invoking separate, less draconian measures indicated that Part IV of the 2001 Act could not be rationally connected to the objective of promoting national security and must accordingly be deemed disproportionate.Footnote ⁵⁷

Four of their Lordships' rulings contain in total citations of 12 foreign judgments, drawn entirely from Canadian and US decisions. The greatest number of references are to be found in Lord Bingham's speech (11) whilst Lords Hope, Rodger and Walker manage 2, 1 and 1 respectively.Footnote ⁵⁸ For the sake of convenience, the references may be sub-divided by the subject-matter to which they relate, namely the respective roles of legislatures and courts in terrorist cases, proportionality, the prohibition of discrimination and the rights of aliens. It is striking that foreign norm citation is used in the main either to give support to a position advanced by the judge or, briefly in passing, to establish an international consensus on the point at issue. Considering first the subject matter of the roles of legislatures and courts, Lords Bingham and Rodger each rely upon RJR McDonald Inc v. AG of Canada to support the view the courts are particularly well-placed to determine matters concerning the liberty of the subject.Footnote ⁵⁹ In addition, Lord Bingham cites another Canadian Supreme Court decision – Libman v. AG of Quebec Footnote ⁶⁰ – to support his view of the types of dispute the courts enjoyed a particular expertise as well as the US Supreme Court decision in West Virginia State Board of Education v. Barnette Footnote ⁶¹ and the District Court in Korematsu v. US.Footnote ⁶² On the related matter of the proportionality of Part IV's restrictions, Lord Bingham invokes the Canadian Supreme Court rulings of Oakes Footnote ⁶³ and Libman Footnote ⁶⁴ to support his analysis of the requirement in Article 15 of the ECHR that derogating measures ought to go no further than that which is “strictly required by the exigencies of the situation”.Footnote ⁶⁵ The dissenting judge, Lord Walker of Gestingthorpe, likewise cites with approval the “minimal impairment” limb of the proportionality test set out by McLachlin J. in RJR McDonald Inc v. AG of Canada.Footnote ⁶⁶ On the discrimination point, Lord Bingham quotes a passage from the US Supreme Court ruling in Railway Express Agency Inc v. New York on the dangers of allowing the state to discriminate.Footnote ⁶⁷ Lord Hope refers in passing to authority of Nishimura Ekiu v. US cited by the Attorney-General to support his claim that each state has the right to detain and extradite all non-nationals.Footnote ⁶⁸ Finally, rulings from the US Supreme Court, Fifth Circuit Court of Appeals and District Court are touched upon by Lord Bingham before disposing of each with the remark that none “support a conclusion other than that which I have expressed.”Footnote ⁶⁹

Foreign norms in the fair trial cases involving suspected terrorists

As was noted previously, the Prevention of Terrorism Act 2005 procedures were introduced after the declaration of incompatibility issued by the House of Lords in A and Others v. Secretary of State for the Home Department in respect of Part IV of the Anti-terrorism, Crime and Security Act 2001. The 2005 reforms set out new procedures that govern judicial examination of non-derogating control orders. These provisions limit the ability of a terrorist suspect to know the basis upon which the Home Secretary asks the court to confirm the order.Footnote ⁷⁰ The suspect and his lawyers can be removed from the hearing when sensitive information (the closed material) is being put before the court. A special advocate may be appointed to represent the interests of suspect, although the advocate is not allowed to communicate with the suspect once the closed material has been served upon him.Footnote ⁷¹ The justification for this limitation is that disclosure of certain information could harm the interest of national security, the detection or prevention of crime, or the public interest more generally. The House of Lords was asked to consider the compatibility of the rules with Article 6 in two joined cases in 2007, Secretary of State for the Home Department v. MB; Secretary of State for the Home Department v. AF.Footnote ⁷² Finding that the new procedures could, in certain circumstances, deny a suspect the minimal level of protection to which he would be entitled under Article 6, the House of Lords read down the 2005 Act and CPR Part 76 so that they would only have effect where this was consistent with the overriding obligation to fairness under Article 6. Resort to foreign jurisprudence is made in this instance to indicate the universality of the fair hearing principle.Footnote ⁷³ Lord Bingham cited the Canadian Supreme Court ruling in Charkaoui v. Canada (Minister of Citizenship and Immigration) Footnote ⁷⁴ and the judgment of McLachlin C.J. where the latter in turn quoted from US Supreme Court Justice Sandra Day O'Connor's majority opinion in Hamdi v. Rumsfeld: “For more than a century the central meaning of procedural due process has been clear; ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified’ … These essential constitutional promises may not be eroded.”Footnote ⁷⁵ The supporting, non-authoritative role played by Charkaoui and Hamdi is confirmed by additional corroborative references to decisions of the European Court of Human Rights. In her speech, Baroness Hale relied explicitly on Justice O'Connor to identify the fundamental criterion by which the special advocate procedure would be judged, namely whether the suspect had been “given a meaningful opportunity to contest the factual basis” for the order.Footnote ⁷⁶

Conversely, Lord Bingham declared himself to have derived “little assistance” from two additional Canadian authorities (Canada (Minister of Employment and Immigration) v Chiarelli Footnote ⁷⁷ and In re Harkat Footnote ⁷⁸) where, in contrast to the facts of MB and AF, an adequate summary of the evidence had been made available to the suspects. These rulings can be treated as having been “distinguished” in that a persuasive role for the norm is rejected.

The migration of foreign norms reached a quantitative peak in A and others v. Secretary of State for the Home Department (No. 2) where, between the majority and minority opinions in the House of Lords, 18 references to overseas decisions were made. At stake in A and others (No. 2) was the question of whether the Special Immigration Appeals Commission (SIAC) could receive evidence which had been obtained by the torture of a third party witness when hearing an appeal against the detention of a suspected international terrorist. Apart from the quantitative record established by A and others (No. 2), the opinions in the case are significant for the purposes of this discussion because, unlike any of the previous examples of foreign norm citation, they reveal a stark disagreement between the majority and minority camps about the relevance and weight to be attached to one particular foreign source – a ruling of the Higher Regional Court of Hamburg – on the very question that divides the court. For the majority, the disputed ruling is treated as offering authoritative guidance to the English courts as to how they should approach the admissibility of evidence in suspected but unproven torture cases.

All their Lordships agreed that in those instances where torture had in fact occurred, English law had from “its very earliest days set its face firmly against the use of torture.”Footnote ⁷⁹ Upon the arrest of John Felton in 1628 for the assassination of the Royal favourite the Duke of Buckingham, the judges were consulted by Charles I on whether the arrestee might be lawfully tortured. The answer came back in the negative.Footnote ⁸⁰ The complete absence of officially sanctioned torture in England since 1640 meant that there was an “unsurprising paucity of English judicial authority on this subject.”Footnote ⁸¹ If judicial support were needed on the point, it could be taken from the wider international condemnation of torture in cases by among others US Supreme Court Associate Justice Jackson's famous dissent in Korematsu v. US Footnote ⁸² as well as US Court of Appeals rulings in Demjanjuk v. Petrovsky Footnote ⁸³ and Siderman de Blake v. Argentina.Footnote ⁸⁴ and the Zimbabwean Supreme Court in S v. Nkhomo.Footnote ⁸⁵ The broader category of “involuntarily obtained” evidence could also be excluded from proceedings because of the importance attached to proper police conduct in “civilised” societies. In this regard, English law was at one with other “civilised” nations. Supportive Supreme Court rulings from United States,Footnote ⁸⁶ Canada,Footnote ⁸⁷ IrelandFootnote ⁸⁸ and AustraliaFootnote ⁸⁹ were referred to in the opinion of Lord Bingham.

The more difficult (and thus divisive) question in A and others (No. 2) centred on whether SIAC's discretion to admit evidence that would not be admitted into a court of law extended to accepting evidence that might have been procured by torture inflicted on third parties in states with whom UK security services are in contact. Specifically, the question arose whether the Secretary of State would have the burden of establishing that the information relied upon by the Government in the appeal proceedings had not been procured by tortureFootnote ⁹⁰ or, conversely, whether the information should be normally admitted unless the detainee could show SIAC on a balance of probabilities that it had been procured by torture. A bare majority of the Court led by Lord Hope ruled in effect that it was for the detainee to establish that, on a balance of probabilities, the witness had been tortured.Footnote ⁹¹ Strikingly, the sole judicial authority cited in support of this conclusion by two of the majority (Lord Hope and Lord RodgerFootnote ⁹²) was El Motassadeq a decision of the Hamburg Regional Court of Appeals, Criminal Division.Footnote ⁹³ The German Court was hearing a case against one of the persons charged with conspiracy to cause the attacks of September 11, 2001 and had been supplied with summaries of statements made by three Al Qaeda prisoners held by the US authorities and their agents. Referring to Article 1 of the UN Anti-Torture Convention, the court held that for the statements to be excluded, it would have to be established that torture had been used on the three prisoners to extract the information relied upon by the prosecution. Whilst there may have been a suspicion that torture had been used, the fact of torture had not been established on the evidence before the court and thus the witness statements could be admitted.

Back in the House of Lords, the majority's reliance upon El Motassadeq was criticised by Lord Bingham. The Hamburg Court's decision was, he asserted, of “questionable authority at most.”Footnote ⁹⁴ In view of the existence of material before the court suggesting the use of torture by the US and their agents to obtain the statements coupled with the unwillingness of the US authorities to disclose any details about the circumstances in which the statements were made, the Hamburg Court's decision to allow the statements into court plainly dismayed Lord Bingham. This was not, he concluded, a precedent “which I would wish to follow.”Footnote ⁹⁵

Conclusion

The survey results outlined above bring to the fore a number of features of English judicial reasoning. English judges do make reference to foreign judgments in right to liberty and fair trial cases. Some judges however are keener on citing foreign judgments than others. In this particular survey, Lord Bingham stands well ahead of his judicial colleagues in being willing to acknowledge and discuss foreign sources in his opinions. References to foreign rulings are not confined to decision of the highest constitutional courts but also to lower tier courts. At the same time, it is also clear that the rulings of Supreme Courts and their equivalents tend to be more extensively discussed in domestic judgments than the pronouncements of lower tier courts. The United States and Canada supply by far the most frequent sources to which our judges refer, although the jurisprudence of five other jurisdictions is also represented in this survey. Most foreign cases cited in the House of Lords and Court of Appeal lie somewhere between the “supportive” and “minor influence” points of the spectrum employed in this study. However, there are instances where a foreign authority has been treated as a persuasive authority (Hess in the case of Abassi and El Mottasadeq in A & others No. 2). The majority's reliance upon the Hamburg Court's admissibility ruling in the latter judgment is particularly noteworthy, prompting as it did Lord Bingham for the minority to denounce it in forthright terms. The citing of supportive foreign jurisprudence extends to dissenting judgments, although the sole example of this practice in the current sample (US Supreme Court Associate Justice Jackson's dissent in Korematsu v. US) occurred in respect of a ruling which a clear consensus of legal commentators has for some time considered wrongly decided.

One of the deeper level issues canvassed in this discussion was whether Hirschl's criticism that judges under-theorize when engaging in comparative legal analysis had any validity. On the admittedly limited evidence of the sample of cases in this study, domestic human rights jurisprudence appears to support Hirschl's charge. To paraphrase the current US Supreme Court Chief Justice, the dominant impression of current practice is that our judges have looked for their “friends in a crowd” and selected their foreign sources accordingly. Migration then seamlessly occurs. Contextual factors that might urge a more cautious approach to the citing of foreign norms are scarcely, if at all, addressed. English judges, it seems, do little to explain why the insights of a particular jurisdiction might be relevant to the interpretation of domestic law and why those derived from other jurisdictions were not. The reader of these law reports searches in vain for an account of the criteria by which the included jurisdictions were deemed includable and why the excluded were considered excludable. Neither are the difficult issues surrounding sovereignty tackled. Parliament has not authorised the judges to go trawling through the decisions of foreign constitutional courts. At the very least, the practice is in need of a modicum of constitutional justification. A related concern about the non-accountability of American/Canadian/German judges to the British legal system and ultimately the domestic electorate is not even acknowledged. Unsurprisingly given this context, the notion that norm migration might lead to illicit forays into judicial policy-making goes completely unremarked. Were the courts to possess a basic awareness of the methodological issues in comparative legal scholarship, then we could expect at least a tentative attempt to address some of these questions. Of course, it is possible that this awareness is present in other aspects of public law jurisprudence and that the present survey's focus on Articles 5 and 6 revealed an untypical set of results. However, there is little reason to believe that the same judges who give rulings across the range of human rights issues to come before the courts should, in other contexts, display a heightened methodological awareness.

So where does this leave matters? It could be plausibly argued that our judges operate with an universalist mindset – rarely made explicit – that adheres to the view that, by and large, the British, Canadians and Americans all share fundamental values and are experiencing similar human rights dilemmas as western liberal democracies engaged in the “war on terror”. Slaughter's notion of a common judicial enterprise manages best to capture this attitude. It is tempting to conclude that the judges in the House of Lords and Court of Appeal conceive in the main of the Canadian and United States Supreme Courts as similarly placed institutions functioning under similar circumstances within a framework of broadly similar rules and underlying values. The latter include crucially a commitment to the importance of individual rights and scepticism towards claims made by the state for the curtailment of individual liberty. The problem with this view is that glosses over the fact that the respective US and Canadian responses are a distinct product of their own histories, political cultures, and institutional frameworks. Even the legal procedures (e.g. rules of standing, time limits etc.) by which claims are processed through a legal system will have some impact on the final content of substantive rules to be found in any one jurisdiction. I do not wish to claim that the differences should lead us to dismiss the relevance of foreign rulings altogether. Nonetheless, some greater level of justification is needed from the courts as to why Case A from the Ruritanian Supreme Court is relevant and possibly even dispositive of the dispute in hand whilst Case B from the Freedonian Constitutional Court can be dismissed as irrelevant and further why the domestic court does not even bother to look at Case C from the High Court of Syldavia. Until the methodology for selection of foreign norms is made much more explicit, the suspicion will linger that the court's selection of foreign judgments is purely results-driven.