Public Law 1 – Writing Task
1. Drawing upon the constitutional and democratic models you have studied, explain what is meant by the liberal conception of the rule of law.
The rule of law is a principle of democratic law making implemented in many jurisdictions; it can manifest itself in both written and unwritten constitutions and its origins can be traced to ancient Greece.Its liberal conception fundamentally seeks to ensure all are treated equally by the law and no one is above the law.It may be noted that this is in stark contrast to earlier (Roman for example) and some modern forms of government which may concern divine right orimmunityto the law for a ruling class. In a democratic society where the resolve of a majority may supress a significant minority, a problem with the rule of law manifests itself.
This, it is suggested may be overcome by “…the recognition of the inalienable right of the individual, inviolable rights of the man”.1 Many nations have sought to enshrine these rights into their constitutions in aid of the principle of the rule of law and to limit the legislative power of the sovereign body.These right can be found both at international level, for example the European Convention on Human Rights and ensuing declarations of incompatibilitywhich seek to resolve violations of human rightsand at national level, for example the model of the rule of law found in the US constitution which gives rise to judges interpreting legislation as unconstitutional.
Equality under the law can take many different forms, Pericles suggests that Athens was concerned with ensuring there was no discrimination due to “membership of a particular class”.2This is certainly an ideal the modern conception of the rule of law aspires to today but the scope of the principle of the rule of law has been widened. A more modern and broader concern may be viewed in respect of racism.In particular the American case of Brown and the ruling of the Supreme Court in respect of educational segregationunder the 14thAmendment may be useful to examine when considering the rule of law.3
It has been suggested that there is a group of countries who have, in the light of past racism and intolerance adopted a similar approach to the rule of law. They have created a constitution which is supreme and incorporates the rule of law in order to prevent a reoccurrence of a ruling class. This is achieved by ensuring all law passed by Parliament conforms to the notions set out in the constitution.4South Africa will be a notable example.In addition to this other liberal ideas are also important to consider when giving an account of the liberal conception of the rule of law, for example the separation of powers within a government promotes a system of checks and balances to ensure an executive member does not encroach upon the rights of individuals which are so important in upholding the modern conception of the rule of law.
Finally it has been suggested that at the very least, in its most basic form, the rule of law involves the ability of citizens to “contest government decision making in a court of law” and to “hold to account” their leaders.5 Hence it also promotes relatively simple ideas such as accountability within a nation.
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2. 2. In A v Home Secretary (No 2)  2 AC 221 Lord Bingham concludes that the Special Immigration Appeals Commission (SIAC), a superior court of record, cannot receive evidence which has been procured by torture by officials of a foreign state. However, he goes onto state that: “I am prepared to accept […] that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence”. Explain the distinction that Bingham LJ presents here, and evaluate whether it conforms to a liberal conception of the rule of law.
The essence of the distinction Bingham makes relates to the theory of separation of powers. This theory forms an important part of a liberal implementation of the rule of law.Bingham explains what would appear to be a contradiction in terms to by defining the limits to the scope of competence of both the judiciary and the executive to accept what he defines as “foreign torture evidence”.
In this respect the judgment passed in the case referred to may be seen to adhere to the liberal conception of the rule of law. However it might be astute here to mention the long list of sources of law Bingham refers to when affirming that torture itself is incompatible with ideas of liberalism and equality under the law that Britain and the international community hold as important. One might infer therefore that no part of the state should use evidence obtained by such a crime.
This leads to what might be the real fundamental issue at stake here. A liberal democratic system of government might be very good at pursuing the wants of the many in a time of peace, but to do this takes much time and debate. Both of these factors can be made difficult or impossible in a time of national emergency. Whereas this would bea situation where an autocracy may find its greatest strengths. Bingham’s judgment suggests therefore that in a time of unrestwe may defer to a decisive executive autocracy which will be later judged using ‘normal’ standards of evidence.
However this raises some further issues, such as the fact we seem to be in a permanent state of emergency, does this mean in effect we live a semi – permanent dictatorship? Also,this practise would seem to undermine fundamental rights to such an extent that the whole premise of the rule of law deteriorates. Further it leads to a situation where many would argue “Sovereign is he who decides the exception”.6 That is to say he who decides when to declare emergency and hence abandon democratic standards is really sovereign. Others would argue this is precisely the job parliament was elected to do and if we do not agree with their decisions we should elect another party.
My final point might be the most important and relates to earlierdiscussion about the weaknesses of democracy. Without exceptions to the norm, in extreme circumstances liberalism and many other similar systems of democratic government would fall apart leaving the only plausible alternative as dictatorship. Indecisiveness would lead to the demise of democracy! The argument would therefore be why deprive the people of their liberty in times of peace if the cost of this is only the depravation of a few in times of war. In this respect I would have to agree that this utilitarian practise conforms, albeit very loosely, to the liberal conception of the rule of law. That is not however to say that the rule of law is the only principle we should follow when making decisions of such a magnitude.
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3. Drawing from Justice Albie Sachs’s “Tales of Terrorism and Torture”, and from Lord Bingham’s reasoning in A v Home Secretary (No 2)  2 AC 221, present an argument for why any use of torture evidence by the state should be unlawful.
There is an argument made that in extenuating circumstances the use of torture may be moral, ethical or necessary. Any word which represents some form of justification could or has probably been used for this purpose. However the struggle to justify the use of torture goes a long way to reaching a conclusion about the actual legality or morality of such a practise.It becomes quite clear that this is not an acceptable practise when so called civilised countries feel the need to traffic suspects across the globe to interrogate them, or when they feel the need to set up specialist prisons within which prisoners are treated horrifically, because, as law makers they know, this practise is not acceptable within their own country.
Those mentioned in the question both claim to condemn the use of torture but vary in the lengths they would pursue to prevent its use. Bingham argues that for reasons of common sense and practicality the Secretary of State would be able to make use of “foreign torture evidence” whilst the judiciarywould not in retrospect be able to receive this information when making a judgment about the legality of the treatment of a suspect. Sachs as a victim of torture takes a different view, he believes condoning any form of torture, even using its ‘fruits’ as Bingham might have us do is unjust and perverse.From these accounts we may make a two pronged attack against the use of any torture evidence by the state: the first relating to morality, the latter relating to legality.
Sachs makes several important points about the use of torture which are also relevant to the use of torture evidence. He says “Once you open that door to diminishing respect for the rule of law, you close the door to the rule of law”.7Here he makes an argument very similar to one often made by the English and Welsh judiciary which relates to the ‘thin end of the wedge’. Essentially saying any acceptance of this form of evidence, however small and for whatever reason is unacceptable for it inevitably leads to an end we are trying to prevent.
Sachs goes on to make the point that in most cases where the use of torture is said to be justified, in reality any sense urgency is exaggerated saying “as in 99.9 per cent recurring of cases where forms of torture are used there was no ticking bomb nearby”.8 Even if there are no substantial grounds for his statistics the point stills stands to undermine the argument for the use of torture evidence as many of those in its favour believe its use is only acceptable when there is animminent emergency.
He goes on to make the point that we should take a moral high ground on this issue “my standards and values are better than theirs…I will never be like them.” He says the minute you allow exceptions or exemptions you “undermine the principle of not employing torture” in the first place.9This is a very strong argument as it sits very comfortable with another assertion that is made by both Bingham and Sachs, this is that the use of torture by the state, degrades that state itself. He says when you stand strong with your principles when asserting rights and lawfulness “You affirm the very principles that the individual is said to have placed under attack.”10We must ask ourselves, what will we become if we condone this practise? The answer in the current climate must surely be as bad as the terrorists we are trying to catch.
To an extent Bingham agrees with this however he makes an important distinction that is that “the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of… foreign torture evidence”.11This clearly does not sit comfortable with the idea that any use of torture evidence by the state should be unlawful. Bingham clearly recognises with his long list of sources of law that torture is unlawful, but is prepared to accept the use of its ‘fruits; in such a way so as to without proper process deny citizens their fundamental rights.
You will appreciate thisundermines basic rights even further when you realise that as in accordance with the judgment, SIAC cannot even see what evidence the Secretary of State has used to come to a decision to certify.He is in effect left with no repercussions flowing from a certification and is free to certify anyone without having to justify this decision. This practise fundamentally undermines the rights of all citizens and cannot be allowed to continue, the days of the use of prerogative rights like this should forever be left in the past. We need look no further than the Bancoult cases to see what a slippery slope we fall down when prerogative rights are used to undermine the principle of the rule of law and the fundamental rights of citizens.12
There are also some basic analogies that can be made that seem to ruin the arguments that prop up this practise. The “role of the judge [when reviewing a public law matter such as the Bancoult case] is to ensure the executive works within the bounds of the law”.13This would seem an obvious point to make, however when we examine the bounds of the law as set in said case we can see that the Secretary of State has been placed firmly outside the bounds of ordinary law. How can you ensure someone works inside the bounds of the law when this very law places him outside those bounds? This links back to one of Sachs points about the rule of law deteriorating when you make exceptions.
A final problem with the use of torture evidence may be found within Bingham’s judgment. He believes that this case does not call for any judgment in relation to the use of the evidence and Article 3 of the European Human Rights Convention, which is non-derogable.14Any use of torture evidence, would of course involve inhumane or degrading treatment as an essential prerequisite, and would therefore obviously be contrary to Article 3. An argument was put forward that Article 3 was not relevant as the torture did not involve the complicity of British authorities.This must of course be wrong as the use of torture evidence encourages its occurrence in the first place and we may again refer to Sach’s comments about “diminishing respect for the rule of law”.
In conclusion as well as realising that the use of any torture evidence by the state should be unlawful, we have realised that contrary to the judgment it may already be.
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1. David Held, Models of Democracy (3rd edition, 2006, Polity Press) 205 quoting Friedrich August Hayek, Law, Legislation and Liberty: The mirage of social justice (Volume 2,1976, University of Chicago Press) 62-3
2. David Held, Models of Democracy (3rd edition, 2006, Polity Press) 13 quoting Thucydides, The Peloponnesian War (431 BCE) 145, 147
3. Brown v. Board of Education of Topeka 347 U.S. 483 (1954)
4. Dr Stewart Motha ‘Summary of Public Law’ (Ending a series of Public Law lectures, Tuesday 30th November)
5. Dr Stewart Motha, ‘Summary of Public Law’ (Ending a series of Public Law lectures, Tuesday 30th November)
6. Dr Stewart Motha, ‘The Rule of Law & Separation of Powers’ (Public Law lecture, Wednesday 24th November 2010) quoting Carl Schmitt, Political Theology (Essay, 1922)
7. Albie Sachs, The Strange Alchemy of Life and Law (2009, Oxford University Press)11
8. Albie Sachs, The Strange Alchemy of Life and Law (2009, Oxford University Press)13
9. Albie Sachs, The Strange Alchemy of Life and Law (2009, Oxford University Press)14, 21
10. Albie Sachs, The Strange Alchemy of Life and Law (2009, Oxford University Press)31
11. A and others v Secretary of State for the Home Department (No 2)  UKHL 71,  2 AC 221 [268-269]
12. Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs and Another,  QB 1067; Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)  UKHL 61,  1 AC 453
13. Dr Stewart Motha ‘Torture & the Rule of Law’ (Public Law lecture, 17th – 23rd November 2010)
14. A and others v Secretary of State for the Home Department (No 2)  UKHL 71,  2 AC 221 , , [270-272]
Held D, Models of Democracy (3rd edition, 2006, Polity Press)
Sachs A, The Strange Alchemy of Life and Law (2009, Oxford University Press)
Motha S, A series of law lectures, September – December 2010
17th December 20100LW588: Public Law 1: Group 6: Prof DHerman0James Shelford
Public Law 1 – Writing Task