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Tuesday, 23 February 2010

Amontillado, Argentoratum and AF: the end of national sovereignty

First of a few posts written for an internal company blog:

Anyone labouring under the illusion that as a sovereign nation Britain is the master of its own destiny should read the judgment of the House of Lords in Secretary of State for the Home Department v AF and other appeals (Justice intervening) [2009] All ER (D) 84 (Jun). The House of Lords, once the judicial body followed almost as a matter of course by other jurisdictions irrespective of whether it was technically their highest court, now seems to find itself in a position analogous to the unfortunate Fortunato at the end of Poe’s The Cask of Amontillado.

At issue in the AF case was the procedure which had resulted in the making of the control order against suspected terrorists, and in particular whether the procedure satisfied the subject's right to a fair hearing as guaranteed by art 6 of the European Convention on Human Rights. The House of Lords held that, whatever they might wish to decide for themselves, the decision of the European Court of Human Rights in A and others v United Kingdom [2009] All ER (D) 203 (Feb) had already settled the issue.

Their Lordships did not do so without misgivings, however. According to Lord Hoffmann:

I agree that the judgment of the European Court of Human Rights (ECtHR) in A v United Kingdom ... requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that s 2(1)(a) of the Human Rights Act 1998 requires us only to “take into account” decisions of the ECtHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.”

Lord Rodger, evidently of the same view, quoted and adapted a maxim from that other European Union, Pax Romana:

Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.”

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