Ideal protections in law
After disastrous policies from European history that usually involved or led to wars, or renowned oppression, European states worked hard to eradicate the principle of discrimination. Many are now very sensitive to race issues in policing. In fact, they are so much so as Governments do not even study the issue for fear of diluting nationalism, invading privacy, raising tensions further, and finding out what they do not wish to know. For instance, France doesn’t collect information regarding ethnicity to avoid any appearance of discrimination and the dilution of the French identity.
Arising from this sensitivity and harsh histories, Europe banded together on a number of occasions to come up with principled declarations, hoping that they would provide solutions. These ‘occasions’ led to the development of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and countless other such declarations. But a legally binding mechanism was missing.
The European Convention on Human Rights
The creation of the European Convention on Human Rights in 1950 was a watershed moment for human rights in Europe. The convention is ratified by each of the 46 member states of the Council of Europe. Based on the jurisprudence emerging from the European Court of Human Rights in Strasbourg, all individuals within Europe are protected from discrimination through a combination of rights enshrined in the Convention.
Article 5 protects the right to liberty and security, and ensures that you can not be arrested without suspicion. In the case of Fox, Campbell, Hartley v. UK, it was decided that the test of ‘suspicion’ prior to arrest is that an 'objective observer' should be satisfied of 'reasonable suspicion'.1 This usually involves a warrant process and independent authorisation; though when this involves stop and search powers and detention without trial, there is greater uncertainty as to the standard.
Article 8 calls for respect for the private life of the individual. In the case of Tsavachidis v Greece, Tsavachidis was accused of having unlawfully opened a place of worship for Jehovah’s Witnesses. He argued that the Government had interfered with his private life. He won his case after it was discovered that the Greek National Intelligence Service was reporting on the activities of Jehovah's Witnesses and other religious minorities. The Greek Government was forced to promise that it would cease to place any individual or group under surveillance on account of their religious beliefs.2
Linked to Article 8 and the Tsavachidis case is Article 9, the freedom of thought, conscience and religion. A key case was Kokkinakis v Greece, where Mr Kokkinakis was arrested on over 60 occasions for proselytising. Under a Greek law,3 it was forbidden to "in any direct or indirect attempt to introduce on the religious beliefs of a person of a different religious persuasion, with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means of taking advantage of his inexperience, trust, need, low intellect or naivety".4 That law was found to be unlawful because the State arrested individuals not for what they had done, but for what religion they were (in this case, Jehovah’s witness).
Finally, the most relevant right is enshrined in Article 14, the prohibition of discrimination. Jurisprudence has not interpreted every distinction or difference of treatment as discrimination; rather a difference of treatment is discriminatory if it 'has no objective and reasonable justification', it does not pursue a legitimate aim or there is not a 'reasonable relationships of proportionality between the means employed and the aim sought to be realised'.5 Article 14 was strengthened by Protocol 12 to the Convention that added scope of protection to cases where an individual is discriminated against by a public authority in the exercise of discretionary power, or by any other act or omission by a public authority.
The right of freedom from discrimination has not seen much application to the area of policing however. Part of the problem is the heavy burden of proof placed on individuals to show that discrimination took place.6 It wasn’t until the UK passed its anti-terror law in response to the 2001 attacks in New York and Washington that we saw the principle of non-discrimination applied to State powers.
Testing discriminatory detention in Britain
Three months after the September 11 2001 attacks, the UK Parliament approved the Anti-Terrorism, Crime and Security Act. Amongst the many controversial components, in Part IV of the ATCS the Government created the power to detain foreign nationals suspected of terrorism. This power was then applied to seventeen foreign nationals who were resident in the UK: these individuals, though not charged with any crime, were to be detained in what the Government called a 'three-walled prison'. That is, these individuals could return freely to their country of origin at any time, as some did.7 However, so long as they remained in the UK, they were to be detained without trial.
The detainees challenged the lawfulness of their situation. They contended that their detention was inconsistent with the UK's obligations under the European Convention on Human Rights. Their case went to the highest court in the UK where it was heard by the Law Lords in the House of Lords.8 The detainees complained that in providing for the detention of suspected international terrorists who were not UK nationals but not for those who were UK nationals, the law unlawfully discriminated against them as non-UK nationals in breach of article 14 of the European Convention.
The lower courts had disagreed with the detainees, arguing that there was indeed an 'objective and reasonable justification' for the differential treatment. In a historical decision, the Law Lords decided against the Government. Among the many complexities in the case, the Lords argued that the ECHR guarantees the right to liberty and security of the person, and the convention in its entirety applies to everyone. The Law Lords argued that short of a warrant requiring arrest for the purpose of deportation, individuals could not be detained indefinitely merely because they were foreign nationals. That is, because contracting states must defend the right to liberty as under Article 5, the law permitting the detention of foreign nationals discriminates against the detainees in their enjoyment of liberty.
According to the decision written by Lord Justice Bingham, everyone must have equal protection of the law: "The foreign nationality of the appellants does not preclude them from claiming the protection of their Convention rights." Lord Bingham's opinion went on to refer to the Council of Europe's "Guidelines on human rights and the fight against terrorism":
"All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment ..."9
Lord Justice Bingham also quoted from the Council of Europe Commissioner for Human Rights, who said, in direct reference to the ATCS 2001:
"In so far as these measures are applicable only to non-deportable foreigners, they might appear, moreover, to be ushering in a two-track justice, whereby different human rights standards apply to foreigners and nationals."
The Court's entire judgment was rife with quotations from declarations and statements from countless international bodies prohibiting discrimination on race and nationality. These bodies included the Council of Europe's Commission against Racism and Intolerance, the General Assembly of the United Nations and its Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live, the United Nations Human Rights Committee, the UN Commission on Human Rights, the UK Privy Counsellors, the International Law Association, the UK Parliament's Joint Committee on Human Rights. Most prominent was the Committee of the International Convention on the Elimination of All Forms of Racial Discrimination 1966, who Lord Justice Bingham quoted in full as they called for governments to ensure "that any measures taken in the fight against terrorism do not discriminate, in purpose or effect, on the grounds of race, colour, descent, or national or ethnic origin and that non-citizens are not subjected to racial or ethnic profiling or stereotyping" and "that non-citizens detained or arrested in the fight against terrorism are properly protected by domestic law that complies with international human rights, refugee and humanitarian law."
Baroness Hale's concluded her supporting opinion by stating that:
“[n]o one has the right to be an international terrorist. But substitute “black”, “disabled”, "female”, "gay”, or any other similar adjective for "foreign" before "suspected international terrorist" and ask whether it would be justifiable to take power to lock up that group but not the "white", "able-bodied", "male" or "straight" suspected international terrorists. The answer is clear.”
On grounds of unlawful discrimination, the Government was forced to abandon its power of detention without trial and was compelled to set upon other paths.
- 1. Fox, Campbell, Hartley v. UK, A182 (1990) 13 EHRR 157 ECHR.
- 2. Alastair Mowbray, Case Materials on the European Convention on Human Rights, Butterworths: London, 2001, p.361
- 3. Law 1363/1938.
- 4. European Court of Human Rights, A260-A (1993) 17 EHRR 397
- 5. From Abdulaziz, Cabales, and Balkandali v UK, 1985.
- 6. c.f. "Violence and Discrimination before the Strasbourg Court", http://www.justiceinitiative.org/activities/ec/ec_russia/moscow_workshop...
- 7. One returned to France and another to Morocco.
- 8. A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent); X (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent), Lords of Appeal, House of Lords, December 16, 2004.
- 9. Committee of Ministers of the Council of Europe, adopted on July 11 2002.