The House of Lords judgment in the Al-Skeini case today means the Human Rights Act will apply to what UK public authorities, such as the Army, do beyond these shores in areas of effective British control – like for instance when British http://www.gooakley.com/ authorities detain someone. We already know the European Convention applied in these circumstances, because of the Bankovic case – but this ruling confirms that the Act applies in the same circumstances, so that legal action can be taken in the UK’s courts in respect of any breach.
It was a majority decision: Lord Bingham dissented. In his view nothing in the Act indicates it extends beyond UK territory. A reasonable, traditionalist approach to construing the Act which has some force. But on balance I think the majority is probably right: it’s more reasonable to see Parliament as having intended the Act to be coextensive with the Convention in this respect. It’s difficult to see why it would have intended the result Lord Bingham arrives at. In any event, five of the six claimants Ray Ban outlet were not in the control of UK authorites, so have no human rights claim. Only Baha Mousa’s claim is a proper one.
Oh, and I don’t quite agree with Shami Chakrabarti – I don’t think this means there can never be a British Guantanamo. First, it’s not this ruling, arguably, but Bankovic, which prevents the UK creating a Guantanamo, although admittedly, that’s a nerdish lawyer’s point; secondly, though, a British government would be free to set up Guantanamos as soon as it withdrew from the ECHR. Given recent political debate about the Convention, I don’t think that’s 100% inconceivable at some point in the future.
I live in Melbourne. Applying settled common law principle and statutory construction, with great respect Lord Bingham’s speech was simply wrong. Sir Owen Dixon, to my mind the finest judge throughout the common law’s long history, put it best: legalism is the correct approach.There is no basis either in legal reasoning or the HRA to put such a pedantic construction on “in relation to” and the establishment of a sufficient connexion/nexus between the UK and application of the ‘Convention rights’. Lord Bingham’s, though not perhaps, incuriam, is, I respectfully submit, quite absurd.
I reckon “quite absurd” is a teensy bit strong, Anon… but I agree with you that the other view is better. I think excessive literalism dies hard in England, even forty years after Lord Denning tried to exorcise those “voices from the past”. I think Lord Bingham is just felling into that old trap.