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Belmarsh: a new affront to justice

By Robert Verkaik and Colin Brown

18 December 2004

The Government's refusal to withdraw its anti-terror laws has left Britain on the brink of a constitutional crisis that threatens centuries of hard-won civil liberties, it was claimed last night.

Ministers were warned that their unprecedented defiance in the face of a clear ruling by the country's highest court has set the executive on a collision course with the judiciary. The Foreign Secretary, Jack Straw, defined the Government's position yesterday when he described Thursday's historic ruling on the indefinite detention of foreign terror suspects, held at Belmarsh high-security prison in London, as "simply wrong".

The law lords' landmark judgment has, in effect, dismantled the centrepiece of the Government's anti-terror policy in the wake of the 11 September 2001 attacks on the US.

But Mr Straw enraged lawyers and civil liberties campaigners by reinforcing the Government's determination to strengthen controversial powers to combat any terror threat. He said: "The Government's responsibility ... is to protect people from the threat of terrorism. On this dilemma of how to balance liberty and order, the most important liberty is the right to life. If that liberty is taken away by the terrorists, then we have not met our prime obligation as a government."

Civil liberties groups and human rights lawyers said the comments were proof that the country was facing its "most serious constitutional crisis since the end of the war". Michael Mansfield QC, one of Britain's foremost civil rights lawyers, said: "It is probably the most significant pronouncement from the judiciary since the end of the war on the state of civil liberties, particularly since it has concentrated on one of the most fundamental freedoms, namely the right to liberty."

Shami Chakrabarti, the director of the human rights group Liberty, said: "It's unthinkable that a law-and-order government would ignore the highest court. Our democracy rests upon the mutual respect between judges and politicians and the Government should tread carefully."

Louise Christian, the solicitor representing two of the Britons still being held in Guantanamo Bay, said: "They have gone against the express wishes of the eight law lords. I believe Charles Clarke should be advising the Prime Minister that this is not a sensible position for a government that has passed the Human Rights Act to get itself into."

Phil Shiner, a human rights lawyer, said: "I cannot recall any judgment of any court in this country where eight law lords have so systematically criticised a government on an issue of such fundamental importance to our constitution. If this government defies the Lords on this they will bring on a constitutional crisis of enormous importance."

Senior colleagues of Charles Clarke, the new Home Secretary, said that the crisis would provide a test of whether he would follow his hardline predecessor, David Blunkett, or whether he would choose a more conciliatory course.

Mr Clarke, who on Monday will defend the Government over the Bill to introduce identity cards, made it clear within hours of the law lords' judgment that he intends to give Parliament the chance to assert its authority. The Home Secretary said he is considering whether changes are needed to the emergency anti-terrorist laws under which the detainees in Belmarsh are held - but he will not release them.

A senior government source confirmed that the Home Secretary was considering changing the law to allow evidence gained from telephone tapping to be made admissible for the first time in the British criminal courts. That could answer the central charge against the Government by a majority of the law lords that men are being detained without any evidence being presented to the courts.

But there are strong voices inside the Government against allowing taps to be used in court, which could reveal intelligence sources to the terrorists. Labour lawyers urged the Government last night to change the law to allow the men to be prosecuted or released.

Vera Baird QC, the Labour MP for Redcar, said: "What is key is to try to prosecute such people we can prove are terrorists. That is the right approach." Tony Blair was also warned last night by a senior backbench critic of the anti-terrorist legislation that he will face a damaging battle with his own side if he defies the convention on human rights.

Bob Marshall-Andrews QC said: "I have written to the Home Secretary saying that he should back off. If he gives an undertaking that jury trial is sacrosanct and he is going to review the law after the Belmarsh judgment, we will be happy. If not, there will be great difficulty in the run-up to the election." He said Mr Blair was inviting a "constitutional crisis" if he refused to accept the law lords' ruling. Labour lawyers are pressing ministers to prosecute the detainees if they have evidence, or loosen their detention so they can visit their families.