The dissenting voices in Rahmatullah: no time for political sensitivities
3 November 2012
Secretary of State for Foreign and Commonwealth Affairs and another v Yunis Rahmatullah  UKSC 48 – read judgment.
For a summary of the facts and reasoning in this case please see Rosalind English’s previous post.
Only a few weeks after giving the Birkenhead lecture entitled “Dissenting judgments – self indulgence or self sacrifice?” (See David Hart QC’s previous post), Lord Kerr delivered the leading judgment of the Supreme Court in the case of Rahmatullah. Given that the issue of a man’s liberty was at stake, it could be no real surprise for Lord Kerr or anyone else that there were two dissenting judgments in the cross-appeal provided by Lord Carnwath and Lady Hale. They made clear that in their view the UK should have done more to secure the release of detainee Yunis Rahmatullah and in doing so raised questions as to the proper limits of judicial intervention into the “forbidden area” of foreign policy.
But first what did everyone agree with? The Supreme Court was unanimous in dismissing the Secretary of State’s appeal against the Court of Appeal’s decision to issue a writ of habeas corpus to the UK Government. The primary purpose of the hallowed habeas corpus writ is the physical production of the person concerned, in order for the detainer to show that detention is lawful. Here the problem was that the person concerned, Mr Rahmatullah, although first captured by UK forces in Iraq, is currently detained by US forces in the notorious Bagram Air Base, Afghanistan.
However, the Court held that the writ did not represent an intrusion by the courts into the “forbidden area” of foreign policy since it was not an “instruction” to the Government to act in any particular way or to engage in diplomacy. It merely reflected the fact that there were sufficient grounds for believing that the UK Government still had control of Mr Rahmatullah, pursuant to the 2003 Memorandum of Understanding (MoU) regarding the transfer and return of those captured in Iraq, and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC4). All that had been required of the UK Government was to show whether or not control existed in fact. Given the MoU, there had been every reason to believe that the US would hand him back.
So far, so good. Whilst there were some differences in reasoning between the judges, with Lord Phillips and Lord Reed raising some reservations, Lord Carnwath and Lady Hale summed it up nicely: “The strength of habeas corpus is its simplicity.” This was to set the scene for their dissenting judgments in the cross-appeal, which revealed a stark divide in opinion as to the limits of judicial intervention into the world of foreign policy.
Subsequent to the issuing of the writ by the Court of Appeal, the UK Government wrote to the US requesting Mr Rahmatullah’s return. The US responded to the letter of request stating that they had already received a request from the Government of Pakistan for Mr Rahmatullah’s repatriation, and that they considered it more appropriate to discuss the conditions of transfer directly with them. Mr Rahmatullah challenged the Court of Appeal’s decision that the UK Government had made a sufficient return to the writ.
Lord Kerr for the majority acknowledged the force of the argument presented on behalf of Mr Rahmatullah that the US letter did not deal with the legal basis on which the UK authorities arguably had control over Mr Rahmatullah. However, Lord Kerr stated that the US had been provided with the Court of Appeal judgment and a diplomatic silence on the question did not necessarily indicate a lack of interest on the subject. The UK Government gave evidence that in the world of international relations the letter amounted to a refusal to hand over Mr Rahmatullah. Lord Kerr referred back to the Court of Appeal which had stated that:
The language of diplomats representing different states discussing a problem can no doubt be very different from that of lawyers representing different interests discussing a problem or even the same problem, particularly when as here the problem may be one of some sensitivity.
Lord Carnwath and Lady Hale dissented and rejected this reasoning. For them, both the UK letter and the US response failed to address the central issue: the UK’s apparent control provided by the 2003 MoU and GC4. They did not understand either why the US government should have any diplomatic problem in expressing its position clearly, or still less why the court should acquiesce in that position. For them it was again simple: “Where liberty is at stake, it is not the court’s job to speculate as to the political sensitivities which may be in play.”
Whilst the majority felt there was nothing more to be done, Lord Carnwath and Lady Hale felt that this should not be the end of the matter:
The governing consideration for the court should be that the applicant remains in detention in Afghanistan, many years after the conflict in Iraq ceased, and after GC4 (as seen through British eyes) required him to be released. He had now also been assessed by the US Detainee Review Board as suitable for release … we still have no clear indication as when that is likely to happen. In these circumstances, in our view, the court should not rest on an inconclusive response, but should require the resubmission of the request in terms specifically relying on the UK’s continuing responsibility under GC4 and its continuing rights under the MoU.
This is a case where the Supreme Court firmly upheld the hallowed principle of habeas corpus and its application to the situation of a man apparently unlawfully detained in Afghanistan by US forces after originally being in the custody of UK forces. The Supreme Court firmly rejected the UK Government’s arguments that to issue a writ was “futile” and intruded into the “forbidden area” of foreign policy What the majority was unwilling to do, once the writ had been issued, was examine substantively the terms in which the UK request was made, or to go behind the US letter of response. Lord Carnwath and Lady Hale however were concerned to ensure proper respect for the constitutional importance of habeas corpus and go so far as to order the UK Government to resubmit the request in more specific terms.
Whatever view one takes, the difference in the majority and minority opinions in this case serves to highlight the inherent difficulties faced by the Supreme Court when, as Lord Kerr puts it in his lecture, they have to confront claims of fundamental importance where vital societal issues such as liberty are at stake. This is not the first case, and will not be the last, which has to grapple with the ever shifting limits of judicial intervention into the “forbidden area” of foreign policy.
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A key issue lurking in all of this is the British court’s stance on “non-justiciability.” Regrettably, more and more evidence is emerging that non-justiciability is permitting government to indulge in all sorts of activities of questionable legality. Ministers are required to observer the “rule of law” and this includes international law. Non-justiciability allows them to escape this vital obligation. The constitutional theory is, of course, that Parliament will hold Ministers to account but the reality is that it continually fails to do so.
A further very worrying point in the case is revealed in para 36 of the court’s judgment – “The, presumably forcible, transfer of Mr Rahmatullah from Iraq to Afghanistan is, at least prima facie, a breach of article 49. On that account alone, his continued detention post-transfer is unlawful.” [i.e. Art 49 of Geneva Convention].
The meek and mild – please may we have Mr R – request is utterly unsatisfactory when faced with breaches of these important conventions. For this reason alone, the minority opinion on the cross- appeal is to be preferred. The US should have been asked as many times as necessary to address the legal basis.
The attitude of the US toward the 2003 MoU is also worrying. Said to be the first time in 150 years that the US has dishonoured such an agreement with the UK. Hardly bodes well for assurances received from the US in other matters – e.g. non-applicability of death penalty on extradition etc.
A helpful summary of the sharp difference of opinion between the majority and the minority on the cross-appeal, but please note Lois that it’s Lord Carnwath, not Carnworth or Carnwarth.
‘notorious Bagram ‘ sounds a little leftish?
“Notorious” sounds a fair description to me! If anything a very fair and measured way to describe the abomination which, as more and more evidence emerges, it clearly is.
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