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The politics of paranoia

By James Cusick, Westminster Editor

The prospect of a constitutional crisis – with the highest court in the land, the law lords, pitted against the government – will be brought a step nearer tomorrow if the House of Lords sends back the revised anti-terror bill approved by the Commons last week and effectively marks it with the comment “still not enough”.

The crisis, according to Professor Timothy O’Hagan at the University of East Anglia, centres on a “struggle for civil liberties” that at present “is getting little help from our rulers”. O’Hagan claims the largely unwritten and precedent-oriented UK constitution is providing a “threadbare protection to our civil liberties” that have been threatened since Britain began imprisoning without trial terror suspects held in the aftermath of the attacks on New York.

The emergency anti-terrorist legislation that was rushed through parliament after 9/11, which brought in the indefinite detention of foreign terrorist suspects, was legally ripped apart in December of last year by a law lords’ judgment. The new law had been piloted through parliament by the then Home Secretary, David Blunkett, at roughly the same time as the first detainees began arriving at Camp Delta in Guantanamo Bay.

The government’s justification for the introduction of a law many saw as authoritarian was clear. It cited article 5 of the 1996 European Convention on Human Rights and Freedoms (ECHR), which had become part of British domestic law and which allowed governments to opt out “in a time of war or other emergency threatening the life of the nation”.

The Prime Minister simply stated Britain was in a unique position, effectively at war and threatened by a ruthless and largely unknown enemy who had shown what it was capable of in the attack on New York’s Twin Towers.

The argument was rejected by critics – who pointed out that the same legislation states that a government “cannot go beyond what is strictly required” – but Britain’s decision to opt out of the human rights legislation was upheld until 12 men, being held as alleged terrorists in south London’s Belmarsh prison, challenged their detention.

In December last year all legal hell broke loose when the law lords delivered a stinging series of criticisms of the government. The judgment arrived on the first day that the new Home Secretary, Charles Clarke, took office following the resignation of Blunkett. The lords ruled that indefinite detention of foreign terrorism suspects is incompatible with the Human Rights Act and the ECHR.

Rachel Denber of Human Rights Watch celebrated the judgment. “The law lords have reminded us of a self-evident truth – that no threat, however real, can justify abandoning basic principles of liberty and justice.”

Three months on from that judgment there is still a lack of clarity about what the government’s full legal response is. Some of the law lords’ key criticisms have been ignored as the government has attempted to repackage the law before it comes up for review on March 14.

In the attempt to repackage its anti-terror measures, the government still showed a reluctance to allow judges to enter the process of ordering detention before the Home Secretary has ruled. The government has also ignored one of the compromises highlighted in a judgment from the law lord, Lord Bingham.

Last December, Bingham wrote: “The function of independent judges, charged to interpret and apply the law, is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.” Bingham pointed out that monitoring the detainees, once released, would be effective to inhibit terrorist activities.

Yet on one of the key criticisms of the lords’ judgment, detention without trial, the government appears no nearer to finding a compromise solution that would bring Britain back under the umbrella of the ECHR.

In December, Lord Nicol of Birkenhead wrote: “Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford.”

On the eve of the lords’ vote tomorrow – which is expected to reject the compromise revision of allowing judges to detain terror suspects without trial – the Lord Chancellor shows no signs of grasping the constitutional consequences of a renewed fight with the law lords.

He appeared to dismiss the key criticism of the law lords by saying: “There is an underlying issue in relation to our anti-terrorism bill – do we need something which isn’t the criminal process in order to fight terrorism effectively? It is the view of the government that we do.”

Falconer and Blair may still be clinging to the view that Britain really is at war. Blair, privy to information from the security services, may believe he alone knows how serious the threat is and just how draconian the legal fight has to be in order for our continued security to be guaranteed. He has said he is unwilling to admit the use of phone intercepts into courts, fearing this would jeopardise key sources used by the security services. In effect Blair is again playing the same “trust me” card that he used in the run up to the war in Iraq. That “trust me” card on Iraq proved to be a fraud – and there are many civil liberties groups in Britain unwilling to give him the benefit of the doubt, believing it would mean no end to the erosion of civil liberties in Britain since 9/11.

Human Rights Watch is clear who the victims have been since the introduction of the anti-terror measures outlawed by the law lords. There are still detainees in maximum security prisons at Belmarsh, Woodhill and Broadmoor high-security psychiatric hospital. One man is on bail but under house arrest. Seven of those in detention have been in custody for over two years. Many, as a result of detention and of not knowing when their ordeal will end, have suffered severe psychiatric problems.

HRW said: “The British government can no longer pretend that indefinite detention is compatible with its obligations under human rights.” HRW wants a criminal trial and presented evidence to determine who is held and who released. But that in itself could present the government with further problems.

It is understood that many of the “cases” against the foreign suspects are partly founded on flawed and inaccurate intelligence reports. The security services have withdrawn some of their own initial reports which led to the men being detained. A high-profile court case holds, according to one defence lawyer, the potential to expose “this pernicious bit of legislation”.

So what happens next? The government has to review the current anti-terror measures by March 14. Although it is technically open to the government to extend the law, Tony Blair has said he will not do this given the severity of the law lords’ critique. But it is unclear what further options are open to the government if it fails to secure an acceptable parliamentary replacement.

Without the special post-9/11 provisions in the anti-terror laws, the men would have to be released. And unless there is agreement on how they can be legally monitored, they would be released without charge.

As article three of the ECHR (incorporated in British law) forbids torture, the government cannot go back on its commitment not to repatriate some of the detainees. Many of them face the prospect of torture if they are sent home. That was essentially the choice some initially faced when first arrested: namely indefinite detention or having to leave the country.

According to the former foreign secretary, Robin Cook, there is one further option. “The best option would be [for the government] to withdraw the present bill and announce its intention to consult widely on measures that would undermine terrorism without also undermining the rights and liberties of British citizens.”

But it remains unclear if the government is prepared to compromise on any great scale. A joint committee of peers and MPs warned the government last week that the concessions which allowed judges into the decision-making process on house arrest ahead of the Home Secretary, but which still allowed the Home Secretary to impose other restrictions on his own authority, did not go far enough.

The report published last week by the all-party joint parliamentary human rights committee, chaired by the Labour MP Jean Corsten, praised the government’s promise to involve judges in the house arrest process. But beyond house arrest, other aspects of the new control process, according to the committee, remained a human rights problem.

The committee says the proposed procedure for issuing control orders gives little chance for defence counsel to become quickly involved. The result, the committee believes, will be a dangerous level of arbitrary detentions.

Again the consequences are clear: in trying to address the lords’ concern over the lack of compliance with human rights laws, the government appears to have offered an alternative detention process which will also fall foul of the European human rights law. There has been no solution.

Some senior judges have voiced concern that they are unhappy about being involved in a legal process where their decisions are expected to correspond to the views of the Home Secretary.

Lord Ackner, the former law lord said: “It sounds so much better to say, ‘we will leave it to the judge.’ But if you leave it to the judge without his being able to exercise the obligations of due process, you are not leaving it to the judge at all.”

The ingredients of a full-blown constitutional crisis are all there. Perhaps only the prospect of a general election being held in such a climate of legal uncertainty and chaos will force a compromise, however late.

06 March 2005