Thursday, 13 December 2007

House of Lords Opens Door to Accountability of UK for Abuses in Iraq

The House of Lords has held, in a case concerning an individual detained by British forces in Basra, that the UK is responsible for such detention, and not the UN, as the British government had argued.
The House of Lords also considered the UK argument whereby when the Security Council acts under Chapter VII of the UN Charter and authorises an action through the phrase 'all necessary means', that this automatically means that a state can override all pre-existing international obligations that conflict with that authorisation. The House of Lords overturned Lord Justice Brooke of the Court of Appeal on this point.
While accepting that in some circumstances a Chapter VII authorisation can override human rights obligations, the Law Lords emphasise the very limited nature of this authorisation. Lord Bingham held that the UK 'must ensure that the detainee’s rights under Article 5 [European Convention on Human Rights, which protects the right not to be held without due process] are not infringed to any greater extent than is inherent in such detention' (para 39). Baroness Hale went even further in emphasising that Mr Al-Jedda’s right not to be detained without due process had been 'qualified but not displaced' and that: 'The right is qualified only to the extent required or authorised by the resolution. What remains of it thereafter must be observed. This may have both substantive and procedural consequences' (para 126).
Whether or not Mr Al-Jedda can continue to be held without trial depends now on a further hearing to take place in the High Court early next year. Lawyers for Al-Jedda will challenge the intelligence that forms the basis of the decision of the UK Government that he continues to pose such a threat to peace and security in Iraq that it is absolutely necessary that he be detained there, rather than brought back to the UK and dealt with here.
In late August 2007, Al-Jedda’s lawyers in a different action obtained an order from the Court of Appeal that he could not be released or transferred from the jurisdiction of the UK Government without proper written notice to his lawyers. This would allow time for an urgent application to protect him from the risk of torture if he is handed over to the Iraqi authorities.
The ruling is available at:
Thanks to Andrea Breslin, a doctoral student at the Irish Centre for Human Rights, who is currently completing an internship with Phil Shiner and Public Interest Solicitors, who act for Al-Jedda.

1 comment:

Wingate said...

Clumsy finality should never be given special political protection yet it does.

A couple of years ago I saw a story where the supporters of an executed man were trying to apply modern DNA to test the old evidence. But State prosecutors opposed this attempt, saying nothing could come from knowing those results as the matter was already final. The courts agreed. The State governor finally overruled the courts and allowed the test to take place which actually proved the executed man was indeed guilty. Now we had finality. But what was worrying was the legal system standing in the way for self interest reasons; if it was shown they had actually executed the wrong man.

George Bush,and other
leaders and judges to follow, appear to have permission to ruin no matter the price. This reminds me of the pending dangers as seen by Walter Lippmann who in his 1922 book Public Opinion he examined what he believed to be the necessary preconditions for the operation of a successful democratic society -- a competent, civic-minded citizenry with access to relevant details of public policy -- and decides that the entire notion is dangerously Utopian, and ought to be shelved. At the heart of both democratic and republican theory, in Lippmann's view, stood the "omnicompetent" citizen. "It was believed that if only he could be taught more facts, if only he would take more interest, if only he would listen to more lectures and read more reports, he would gradually be trained to direct public affairs," he wrote. Unfortunately, Lippmann concluded, "The whole assumption is false."

John Dewey replied to Lippmann in the May 3, 1922, New Republic, and later in a book called, The Public and Its Problems, published in 1927. He took issue with the very premise of Lippmann’s argument: the need for "omnicompetence" in a voting public. While Lippmann argued for what journalism scholar James W. Carey today calls a "spectator theory of knowledge," Dewey viewed knowledge as a function of "communication and association."

"Vision is a spectator," he wrote. "Hearing is a participator." The basis of democracy is not information, but conversation -- and the cultivation of what might be called a "culture of communication." More than arcane, inside knowledge, Dewey argued, democracy required "certain vital habits: the ability to follow an argument, grasp the point of view of another, expand the boundaries of understanding, debate the alternative purposes that might be pursued."

I have attempted to make some changes by writing and talking about poor quality finality creates which is clearly destroying the potential for better government. One such place is Wikipedia where my writings have been well accepted which is good because they address the important issues of fiduciary failure at its most critical point.

Criticism- International equity expert Professor Paul Finn has underlined, “the most fundamental fiduciary relationship in our society is manifestly that which exists between the community (the people) and the state, its agencies and officials. “

Many suggest the basic problem of stopping Human Rights violations and political negligence stems from the lack of understanding by media and politicians on the laws of fiduciary control. In equity fiduciary control suggests obligations that not only comprise of duties of good faith and loyalty, but also include duties of skill and competence in managing the people's interests. After all, Government is a trust structure created by people to manage certain services within society with the politicians depended on by the people to do that task. Therefore the relationship between government and it's politicians and the governed is clearly a fiduciary one.

Rules such as Sovereign Immunity and Crown and Judicial Immunity are now being targeted as the very the tools of oppression that are preventing victims from taking action against the people controlling the country who are causing the failure of care. Originating from within the Courts of Equity, the fiduciary concept was partly designed to prevent those holding positions of power from abusing their authority.

This new thinking suggests anyone accepting any political or government control over the interests of people should be judged by the most exacting fiduciary standards given politicians are the most important fiduciaries in any society given they hold power over the people with power that comes from the people through elections. The fiduciary relationship arises from the government and it's politicians ability to control people with the exercise of that power. In effect the argument is, if politicians have the power to abolish or ignore any rights they should be burdened with the fiduciary duty to protect people's rights because the government (or others engaging politicians on their behalf) would benefit from the exercise of discretion to extinguish rights which it alone had the power to dispose of.


All judges must sign a judicial oath which is a fiduciary undertaking or a promise of duty of care. Yet the moment it is signed, the judge is protected with judicial immunity which prevents anyone from testing the obligation the judge undertook in the oath. Arguments against the judicial immunity say this law is allowing judges a special method of escape for claims for breach of fiduciary duty which is something no other fiduciary apart from politicians can obtain.

Perhaps a problem is that in the process of building our society we have lost the ability to hear the expressions of the people who suffer under the vertical tower of democracy. Surely by allowing analysis of decisions can only result in an improvement of service to the people. After all, equity during the early days of the Statute of Westminster was born from repeated reactions to judicial injustice and provided remedies in situations in which precedent or statutory law might not apply or be equitable. And for several hundred years the independent chancery stood alone to meet that task up until The Judicature Act of 1873. Maybe it’s time for a rebirth.

We all need a new common law which allows a person the right to review the finality his government/judiciary have imposed on him. If that is heard by a jury then we will have accountability. Until then we have nothing as the politicians and judges in each and every country will hide their failings.