We are four months in and it has already been quite a year for leading human rights barrister Dinah Rose QC. She has triumphed for The Guardian in the Supreme Court, successfully challenging the Attorney-General’s attempt to resist disclosing letters written by Prince Charles to government ministers, and been hailed as “the finest advocate of her generation” by a leading human rights organisation. She describes the greatest challenge of the case as “a statutory provision that expressly permitted the Attorney General to override a decision of the court… The question is how do you persuade a court that exercising that power is unlawful?”
The case has been hailed as major triumph for freedom of information, but those hoping they can now eavesdrop on the Prime Minister’s weekly audience with the Queen will have to think again. “I don’t think there’s any comparison,” Rose explains. “The whole point about Prince Charles is that he’s not performing any constitutional function which is what the Upper Tribunal had held.”
This is far from the first occasion in which Rose has overcome the executive’s desire to keep information hidden from public view. She acted for Binyam Mohamed, who was the subject of extraordinary rendition to Guantanamo Bay where he was held on the basis of statements extracted under torture in the presence of a British government agent who had provided information to be put to him. While Mohamed was still in Guantanamo, Rose was instructed by Clive Stafford Smith to seek an order requiring production of relevant documents from MI5. The case was fiercely resisted by both the British and US governments, who released Mohamed, “probably not coincidently,” Rose suggests, in the hope it would bring an end to the claim.
Rose rejects suggestions that Britain has been left less safe because of US reluctance to share information on terrorist threats with the UK authorities as a result of that decision. “I think a number of years of litigation have left me somewhat sceptical of the rather histrionic claims about damage to national security that sometimes get made by MI5 and MI6. I think that it has always been understood by both the Americans and the British that there are no absolute guarantees of secrecy where you have an independent judiciary and the rule of law.”
Mohamed’s case is one of a number in which Rose has appeared against the government on claims arising from the so-called ‘war on terror’. These included appearing before the Investigating Powers Tribunal because the Government was believed to be accessing communications between two Libyan dissidents who had been kidnapped and tortured, Abdel Hakin Belhaj and Sami Al Saadi, and their legal advisers.
She thinks it “extremely difficult to know” how far the UK government has been complicit in extraordinary rendition, commenting, “We know of a number of cases in which it happened… We also know that the original categorical denials that any flights passed through British territory in Diego Garcia were untrue. And in fact, at least two rendition flights stopped and refuelled in Diego Garcia. There have been question marks about whether prisoners may even have been held there. We still don’t know. Whether we ever will, who can say?”
She thinks the fight against Islamic extremism has had a corrosive effect on some of our national institutions. “There’s… a great temptation for governments to use episodes like that as an opportunity to increase the powers that they exercise, whether through anti-terrorist legislation, or through exercising other powers such as increased surveillance or monitoring of digital communications and I think that certainly in the early years of this century there were some really serious abuses of power.”
Much of Rose’s work involves the Human Rights Act 1998, and she has been vocal in her opposition to Conservative plans to repeal the Act and replace it with a ‘British Bill of Rights’.
“I think that the Human Rights Act is effective not just because of the substance of the rights which it contains, which are for the most part fairly uncontroversial, but also because of the constitutional mechanisms that it provides for enforcing rights.”
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She notes in particular the “delicate balance” struck in Section Three between parliamentary sovereignty and the protection of fundamental rights, and the problems this conflict might pose for a domestic bill. “Nothing that’s come out of the Conservative party shows any sign that that issue has been understood.”
Once a prominent member of the Liberal Democrats, Rose resigned in 2013 in protest at their support for the Government’s move to increase the number of cases heard in secret.
When I suggest that these sorts of compromises are inevitable in coalition government, she tells me, “I think it’s obvious that if you’re involved in a coalition you have to make compromises but I thought then, and I still think, that a party has to remain true to its fundamental identity. And the unique feature of the Liberal Democrats in British politics was the priority that it attached to civil liberties and the rule of law. I was extremely disappointed to see them prepared to throw that away.”
She also criticises the Liberal Democrats for voting with the Conservatives to slash legal aid. When asked whether she thinks that the Bar can survive the current assault on public funding for legal assistance, she replies, “I think that’s a really difficult and important question. I think that some parts of the bar will survive [but] I think that the Criminal Bar, the Family Law Bar and the Employment Law Bar have all been very seriously adversely affected.”
She thinks the Bar will be a lot smaller in the next ten years. Does that mean she would recommend current students against considering a career at the Bar?
She explains, “It’s a very difficult time for anybody to go the Bar,” and that no one should “attempt it lightly”. But for those with the right attributes and personality, “it can be extremely fun”.
Rose confirms she has no political ambitions herself, which means that future governments can look forward to being held to account by her well into the future.
Once she is ready to pass that challenge on, it remains to be seen whether there will be an independent Bar to take her place.
