Human Rights, Pinochet and Asset Freezes

An interview with Baron Collins of Mapesbury, recently retired judge from the British Supreme Court

by Gordon Campbell

Click to enlarge
Lawrence Collins, back row, second from right, UK Supreme Court

Politicians are always tempted to take pot shots at judges, who have relatively few friends among the general public. As the late Tom Bingham pointed out in his terrific little book The Rule of Law, the public hold a range of views about judges, not all of them consistent, but often unfavourable. “One minute they are senile and out of touch, the next the very people to conduct a detailed and searching inquiry; one minute port-gorged dinosaurs imposing savage sentences on hapless miscreants, the next wishy-washy liberals unwilling to punish anyone properly for anything…”

Supposedly, a creative tension exists between Parliament and the courts – one passes the laws, the other gives them meaning. Sometimes, the relationship is merely tense. Last year, Prime Minister David Cameron and his Home Secretary Theresa May mounted a series of attacks on Britain’s highest court over its rulings on prisoners right to vote, the registration of sex offenders, and issues to do with forcibly arranged marriages. Much of this controversy has been a product of Britain’s incorporation in the late 1990s of the European Convention on Human Rights into British domestic law. The Tories in particular have been making noises since 2005 about creating ways to avoid the consequences, given the British courts’ tendency to pay heed – as by law, they must – to the Strasbourg rulings on human rights issues.

When Lawrence Collins, Baron Collins of Mapesbury – a very recently retired judge on the UK Supreme Court – visited New Zealand last December, he cited Cameron’s political attacks on the judiciary during the public lecture he gave in Wellington. Werewolf editor Gordon Campbell interviewed Collins about the likelihood of Britain creating its own Bill of Rights, and also explored some cases in which Collins had been involved before being elevated to the judiciary. Namely, the 1986 case triggered by Ronald Reagan’s attempt to freeze Libya’s economic assets, and Spain’s 1998 attempt to extradite the Chilean dictator Augusto Pinochet from Britain, in order to face charges over his regime’s use of torture, and its other human rights abuses. Both cases raised issues of extra-territoriality, and the reach of law beyond US and UK domestic shores. Unfortunately, this interview was conducted before the arrest and extradition proceedings against Kim Dotcom – which have raised a whole new set of disturbing questions about the extraterritorial reach of US law, and the ready compliance with it (so far) by New Zealand judges and Police.

Campbell : I’d like to begin with a comparison between the UK Supreme and its US counterpart. Routinely, we refer to the US Supreme Court as the Warren Court or the Roberts Court, and justices with huge personalities – the likes of Scalia and Brennan – emerge there on a regular basis. By contrast, do you think there’s more of a collegial blurring of identities in Britain’s highest court– and if so, why is that the case ?

Collins : The answer I think, is that the issues that arise [in the UK] don’t raise the same sort of ideological issues as in the United States. Secondly, there is a much more uniform background [with] the members of the Court. That doesn’t mean there aren’t some very, very strong personalities on the Court – I won’t mention anyone on the present Court but no-one could say that Lord Bingham and Lord Hoffman weren’t very strong personalities, and had enormous influence…But there aren’t the same divisive issues coming before what was the House of Lords and is now the Supreme Court, that come regularly before the US Supreme Court.

Isn’t it the extent of factionalism among the judges, and the process of building consensus, merely a less visible process in Britain?

Again, this is very much connected with my answer to the first question. The issues are nothing like as divisive as they normally are [in the US] Its not easy to think of cases where there is even a strong division of opinion that goes to the same level as you find in the United States.

Well, lets look at some contentious cases thrown up in Britain in the wake of 9/11. Such as Lord Bingham’s rulings against the Blair government for its use of immigration law for detention purposes, and against evidence gained by torture, and with all the subsequent furore that we saw over control orders and 90 day detention. Much as we like to think that the tension between the courts and the executive is creative, do you think the attacks on the Court in 2011 by David Cameron and his Home Secretary Theresa May, actually owe their origins to those human rights judgements made by Lord Bingham?

I personally don’t think so. [But] it is quite possible. In the Court under Lord Bingham certainly, successive Home Secretaries were unhappy about the way in which the Court dealt with security issues, and with crime issues…. There was an incident – I hope its public knowledge – where after one of the terrorist decisions, the Home Secretary asked to see the Law Lords to see what the right way forward was. And Lord Bingham said that was not appropriate. [Because] In his view, it didn’t respect the separation of powers.

Right. So where do you think this recent breakdown of respect between politicians and the highest Court has its origins? Lets set aside the particular instances, and talk in the general.

I think it has its origins in a populist approach to law and order. And a populist approach to issues of immigration and asylum. Which is fanned by the tabloid press, and which inevitably has an effect on the government. I don’t actually think the government has any less respect for the judiciary than it did before. But it is prepared to use language that it would not have been thought appropriate in the past.

In the process, the old convention about not attacking a judiciary that can’t fight back is being routinely ignored. You mention immigration and asylum issues. On the other side of the fence, many of the public feel the judiciary has been more concerned with the rights of potential terrorists than with the maintenance of public security. In that sense, the Court is beset on both sides – and what should be its response ?

One of the real problems of course is that its very hard to persuade the public about the importance of the rule of law. Because that it seen as something abstract, until it affects them. Its always been said that it is the unpopular cases that really test the system. And if we’re not prepared to deal properly with the unpopular cases, one day someone will come knocking on your innocent door.

One of the more pointed criticisms of late is that un-elected judges have been making the law in Britain – for example on prisoners right to vote, or on the lifelong registration of sex offenders – when that should be decided by Parliament. In one recent very vigorous dissenting opinion from the UK Supreme Court, we even had Lord Simon Brown saying very much the same thing. What’s your response to that line of criticism?

Well, the formal answer is that the United Kingdom government of the time ratified the Human Rights Convention. It eventually accepted the individual right of petition to the Strasbourg Court, and eventually incorporated the Human Rights Convention into UK law….and as a result of the provisions of that Act, the UK courts are certainly not making law – they are applying the law that was first ratified by the government, and eventually enacted by Parliament. That’s the formal answer. The less formal answer is that yes, in difficult cases, judges do have to make law. And in this area, the law is being made by a group of judges [in Strasbourg] of whom we [the UK } have only one representative. And it may be that the views and policies of those judges are not the same as ours, and that they come to decisions that we would not necessarily come to ourselves…But this is true of other international tribunals like the Luxembourg Court [of European Justice] and the International Court of Justice [in The Hague.]

The response to that line of reasoning by the populist likes of Michael Howard is to say, all very well…but the incorporation of the European Human Rights Convention into British domestic law was only supposed to be about setting broad standards for how states should treat their citizens – but these guys in Strasbourg seem to be socially micro-managing the lives of our citizens. Surely, that wasn’t the intention?

Well, this is also the view expressed by Lord Hoffman, in several places I think. It has a lot to be said for it. There is room for a dialogue. In the [UK] Supreme Court we recently had a case in which we said that the Strasbourg Court has got to look again at an important decision that it made outlawing hearsay evidence in criminal trials. We think we have the right balance in our law and they said : we don’t.

Lets look quickly at a couple of the mechanisms by which Britain could gain more legroom on Strasbourg decisions. Again, Howard recently resurrected this notion of the so-called ‘ margin of appreciation’ – that would allow member states to have some discretion on how they interpret European Convention rights, according to local circumstances. Do you think there is any mileage in that proposal?

Well,, its not a proposal of any novelty at all. It is, in fact, what the European Court says is the law. Its simply that the way the Strasbourg Court applies it seems in some cases to remove the margin of appreciation. Certainly, it is embodied in European human rights law.

Right. And it does seem that there are amber lights in some of the Strasbourg judgements – that allow you to take account of the rulings, as Lord Philips has recently pointed out, but not to be constrained to follow them. Along similar lines, there have been attempts to say there should be a ‘democratic override’ in the shape of a provision to empower Ministers on the Council of Europe to determine that a Strasbourg ruling should not be enforced if it goes against a clear and recent expression by a national Parliament. So if these alternative avenues really do exist how come they haven’t been used more often? Why has Britain tended to get the sharp end of Strasbourg, rather than the soft line?

Um..well…I wonder if that’s really true. I wonder if much of what has happened in Strasbourg has really affected our daily lives in any real way. Many of the issues are headline-type issues that don’t affect ordinary people at all. Take prisoners’ voting rights, for example

Or whether spouses aged 18-21 can bring in foreign nationals to marry them. Which was intended to restrict the incidence of forcible arranged marriages [and which was struck down by Strasbourg as a violation of the Article 8 convention protections of family life] but which doesn’t really affect millions of Britons.

No. They are all marginal, but they can all generate headlines.

Okay, yet regardless of their outreach, they are creating a snowball whereby this notion of Britain creating its own Bill of Rights – has been gaining momentum. This option has been mentioned since 2005 by the Conservatives. Do you think that would be a genuine solution to the problems that have emerged?

No. Because any Bill of Rights – just like the American Constitution. or the New Zealand Bill of Rights or the Canadian Bill of Rights or the Refugee Convention – will be based on essentially the same ideas. The perceived problem with Strasbourg is that it has interpreted those rights in a way which various governments are not very happy with. That it to say, it has extended those rights to protect individuals in a way that governments (a) are unhappy with and (b) are able to exploit for political purposes.

It does seem like a lose/lose situation for the judiciary. On the one hand they’re being whacked for being too political – and yet the suggested cure is to become even more politically attuned, and to look over their shoulder at what the boundary of tolerance is for the government of the day.

And I don’t believe the judiciary is, or can be politicised in that sense. Nor do I think the judiciary looks over its shoulder at what the government is saying.

But that’s what its critics are urging the judiciary to do.

And we’re still very far from that, fortunately.

You talked in your Borrin lecture here about the respect of the public for the judiciary and by extension, for the legal profession as a whole. I wonder if some of that disrespect hasn’t been self-inflicted. Especially in the aftermath of 9/11, we’ve seen an unvirtuous circle whereby politicians signal their intention, get lawyers to devise a rationale, and then the politicians go out and cite that work as a justification for the policy. Lawyers then can hardly be surprised if politicians now regard them as part of the game – and thus, fair game.

Well, lawyers have often had a bad reputation. It doesn’t necessarily rub off on the judiciary…Governments often bring pressure to bear – just as corporations bring pressure to bear – to give them a view in a certain sense. Its up to lawyers to give their own independent view – and if it doesn’t co-incide with their clients’ view, so be it. That’s the over-riding duty. And it is up to the judge in any particular case, whether they comply with that duty.

Perhaps it is the amping up of the climate in the wake of 9/11 that has made the process more visible.

Yes, but I don’t think it is any different. You had the same with Suez. With Suez, the government by-passed the Foreign Office, because it would get no [inaudible] from the Foreign Office. And there was the Gulf of Tonkin resolution. In those days, the US was very keen to be seen to be complying with the law – and no doubt, still is – but it was willing to manipulate it in a way to ensure that it got what it wanted.

Torture, Bush and the Pinochet case.

Campbell : Late in 1999, A British court finally ruled that Chilean general and former ruler August Pinochet – who had been arrested in London while on a visit – should be extradited to Spain to face charges of torture and crimes against humanity. Didn’t you represent the government of Chile as an intervenor in that process?

Collins : Mmm-hmm… That’s right.

Was it your defence that as, head of state, he was immune from extradition – and in any case, could only be charged with crimes committed post 1988, after Britain had ratified the Torture Convention?

Well, the government of Chile at that time was a left-leaning coalition, several of whose members had been imprisoned, tortured or exiled by Pinochet. But they felt that Spain was not the right place for him to be tried, as he had very little connection with Spain – and the Spanish judge
was [proceeding] on the basis that the Spanish court had universal jurisdiction over torture wherever committed, and [because] some of the victims were Spanish. And the government of Chile took the view that this was a matter for Chile.

Now, there were some who were sceptical about that and believed that if he went back to Chile, nothing would happen. But there were some members of the government who were quite keen that he be sent back to Chile and tried. In the end, and despite the decision of the court that he should go to Spain, the British Home Secretary [Jack Straw] exercised his discretion not to extradite him, and did send him back to Chile. And he was not tried in Chile because – and, I believe, genuinely – he was not able to stand trial due to him having Alzheimers, or something.

Even though he was seen to be virtually leaping from his wheelchair once the plane hit the tarmac in Santiago. Still, what the court ruling to extradite him has been interpreted to mean is that it gave torture something akin to the status of a peremptory norm – and that has created a line in the sand, even when it comes to the conduct of heads of state.

Yes, that’s right.

And the ruling would be welcomed by you now, in that respect?

Yes.

The reason I raised it was that in President Bush’s recent autobiography, he confirmed he had personally authorised waterboarding. Given that the Pinochet ruling affirmed that torture is an international crime subject to universal jurisdiction, do you think President Bush would be well advised to stay at home in future?

(Laughs) I couldn’t possibly answer that. But there’s no doubt that nowadays government officials are very, very conscious of the scope of war crimes and humanitarian conventions and their effects in international law – as are military leaders. And at least in those countries which adhere to the rule of law, it has made a difference.

Trade Law, and the Libya Case

Campbell : Over the last three decades, international conventions have increasingly been incorporated into domestic law in the countries of the Commonwealth. Yet the internationalisation of trade law has been more controversial, mainly because the process has been seen to over-ride the autonomy of the countries concerned. I’m thinking of foreign investment rules where the treatment of foreign investors appears to trump the ability of countries to enact health and environmental laws and regulations to protect their citizens – if such rules happen to impinge on foreign investment. Is there anything in this process that causes you any concern ?

Collins : This is not my area, but this is nothing new. Since the 19th century, developing countries have both welcomed foreign investment and yet resented the consequences of it. If you strike a balance sheet as to whether its been good for the world or bad for the world….I think the answer is that is has probably been good. But I’m not an economist. Or a business man.

The difference – and the source of the problem – is that these issues have become more formalised and precise, as various adjudications have determined where the balance should fall. And it has fallen mainly in favour of the foreign investor, at the expense of the health and environmental goals of national governments..

And the answer again, is that we have been dealing with these things since the 19th century. We no longer have gunboats dealing with these matters. That was [thanks to] the Drago Doctrine, where it said that questions about payment of South American bonds should no longer be dealt with force, but by arbitration. It goes back even to the internationalisation of the Soviet Union.

Trade law, I suppose, is preferable to gunboats. But one area where this convergence is currently occurring – and I’m talking about the use of trade law as a weapon in the political arsenal– is over asset freezes on those people and states deemed to have breached international law, or to be supporting terrorism. Some precedents that established the primacy of foreign investors emerged from the asset freeze arbitration involving Iran and Libya in the early to mid 1980s, in which you were involved.

Oh yes. I was heavily involved in those.

The Libya case seemed to be one time when the system really worked, as the British courts picked their way through the issues involved. [ Briefly : In January, 1986, President Ronald Reagan issued a presidential order freezing funds held by Libya in a Bankers Trust bank account in New York, and then tried to do the same thing to Libya’s linked account at the same bank’s branch in London. Bankers Trust told the Libyans that sorry, we can’t pay out your money held in London because – international banking being structured as it was via the SWIFT banking system – such a payout would involve shifting US dollars, which the Reagan directive forbade under pain of criminal prosecution. Muammar Gaddafi’s lawyers then successfully went to court in Britain to unfreeze at least the London account.]

] The British court methodically resolved some basic conflict of laws issues, and identified what realms of Bankers Trust business they had jurisdiction to deal with. It then worked out mechanisms by which Bankers Trust could pay that money without breaching US law and the presidential directive – and thus saved the bankers from the need to commit illegal acts….

Yes. The only reason the banks were resisting payment was not because they didn’t want to pay. They were resisting paying because if they had paid they would have been subject to criminal penalties in the US.

Right. Exactly.

They would have been in a position of double jeopardy, in effect. Now in terms of policy, there are only two policy issues in that case. I don’t think one would have had a lot of sympathy with the Iranians in their [quite separate] case. They were holding hostages, and this [asset freeze] was just a reaction to the detention of the hostages. With the Libyans, I don’t know. But the policy issues were firstly – should you give extraterritorial effect to US law in order to aid a US ally on one hand? And then (b) should you preserve the integrity of the London banking system, such that any country would feel safe depositing their money in London, and feel free from US regulatory action. In the end, the policy – as decided – was very, very welcomed in British banking circles.

Which is why I brought it up. Because it showed the legal system working its way through to clear decisions on jurisdiction, the actual nature of the transactions and a fair outcome – which did not leave the security of the UK banking system subject to arbitrary regulation by the US President.

The case, remember, was decided only in the context of Libya. If the same [outcome] had happened in the case of Iran, the hostages might never have been released, and we might be thinking very, very differently about a decision by the English courts. What happened in the Iranian case was that a decision was very cleverly delayed by the judge at that time, which had the effect of ultimately allowing the US government and Iranian government to negotiate through the Algerians – so that eventually the money found its way through to a joint account under which claims between the US and Iran could be dealt with.

Yet in tracking the current relevance of the findings in that case, the more recent issues around extra-territoriality are those regarding the people detained at Guantanamo – where the US Supreme Court did finally decide that even though the facility was on land not formally part of the United States, the same rules should apply.

The arguments there were totally different though. How to articulate those differences off the cuff, is not so easy. But essentially, the Guantanamo point is in parallel in some ways to the Jason Smith case, which was an inquest case about whether the UK has jurisdiction over bases in Iraq, and so on. It’s a question of…what is your territory for the purposes of your Constitution, or your human rights? So although Guantanamo is owned by Cuba – does the fact that it is leased by the United States and that has prison facilities there make it for certain purposes, as if it were part of the United States? Similarly, are our bases in Iraq run by the British Army, in effect part of the UK? That type of extra-territoriality is quite different from the question whether American law can reach over and make it a crime to do something in London.

Is it really all that different? Because in the Libyan case in the 1980s, the US lawyers seemed to be saying something similar about the mooted payout to the Libyans in Eurodollars – namely, that even though it is a form of currency that is not controlled by the Federal Reserve, it is sort of American currency just the same. Or enough so that you can create a grey area where dealing in Eurodollars or dispersing them in London could be deemed to be an illegal act [for American bankers] under US law.

And it was a very respectable argument. Because money is a kind of fiction. What is a dollar? It certainly wasn’t dollar bills. Because the evidence was, there would be no way of ensuring and carrying the amounts of money involved in that case in cash. So what are dollars? What is it that the Iranians or the Libyans owned? According to one view, it was simply book entries in London. On another it was in effect, real dollars or gold held by the Treasury in Washington. It became a very metaphysical argument.

And New York happens to be the financial capital of the world, and the convergence point of all these global financial institutions. Again, doesn’t that render the whole global banking system potentially at the mercy of arbitrary Presidential decree – given that the currency of global commerce can almost always be claimed either to be actually – or at one remove – denominated in US dollars?

Yes, and the US has always got the power to nullify its currency or say that its no longer legal tender. Your currency – as some very old English case once said – is the essence of your sovereignty. So it is not ludicrous to think that dollars always remain under the control of the US, especially when in very large sums.

ENDS