Detention without trial, Mark 4

Owen has beaten me to it with his post about the government’s decision to drop its long-incubated and utterly indefensible Mental Health Bill, and instead to insert its most objectionable features into the existing Act.  As Owen says,

The Government has announced new mental health detention plans under which people who are deemed mentally ill with a condition that cannot be treated, and who have committed no crime, can be detained in Lubyanka a mental hospital indefinitely.
The Government has concluded that it will not be able to get its controversial draft Mental Health Bill through Parliament to make these changes, because of criticism of the measures from mental health experts and civil rights groups.
So instead they are going to introduce similar measures by amending the existing Mental Health Act 1983 and Mental Capacity Act 2005. The main difference is that patients who are locked up without their consent will be given a right to appeal. As things stand, Parliament will need to approve the amendments.  

This government seems to have a mysterious and disreputable passion for locking people up indefinitely without trial, indeed without even the minor inconvenience of any obligation to charge them with any offence.  The mental health (Orwell-speak for sickness) proposals are the fourth manifestation of this passion.

Detention without trial, Mark 1:  The government became increasingly frustrated by its inability to deport a handful of foreigners deemed by the home secretary to pose a threat to national security but who, if deported to their native lands, would risk being tortured, or worse, which would breach their rights under the European Human Rights Convention.  So our ministers took powers to lock such people up without trial until such time as their native lands stopped torturing their citizens and the undesirable aliens could safely be thrown out.  Because detaining them without trial also constituted a breach of their human rights under the Convention, the government shamelessly declared a purely fictitious state of emergency so that they could suspend the application to the UK of the relevant provision of the Convention under a ‘derogation’ from it.  The Court of Appeal, increasingly erratic these days, upheld this unbelievable set of measures as lawful and consistent with the Convention.  The Law Lords, under the always reliable Lord Bingham, struck them down as discriminatory and disproportionate, declared them inconsistent with Britain’s Convention obligations, and quashed the derogation.  Note that it wasn’t parliament that threw out this disgraceful assault on basic civil liberties by a panicky and illiberal government, but a group of elderly judges.

Detention without trial, Mark 2:  Frustrated by the Law Lords, the government decided to turn their judgement to its own advantage by extending the liability to be detained without trial to British citizens, not just foreigners, thus circumventing the Law Lords’ finding of unlawful discrimination.  To get round the Convention prohibition of detention without trial, ministers devised a regime of restrictions and prohibitions under Control Orders which, in their most extreme form, fall just marginally short of house arrest (which would fall into the category of detention).  Under this regime the suspect is unable to earn a living and support his family, to leave his home (likely to be a small flat shared with a sizeable family) for more than an hour a day, to meet any person without the government’s permission, to use a computer or a mobile telephone, to move house, or to publish his views in any form.  All this without any obligation on the government to charge the suspect with any offence, still less to give him a trial.  Control Orders may be indefinitely renewed.  Any breach of the Order is punishable by imprisonment.  No wonder at least one suspect subjected to this savage routine has demanded that he be returned to prison, and another has decided to risk life and limb by agreeing to be returned to his country of origin despite the real likelihood that he will there be tortured, imprisoned in conditions even more horrific than those at Belmarsh, or possibly executed.  The Control Order regime remains in force, indeed has just been renewed for another year by a supine parliament.  Its legitimacy has not yet been challenged in the House of Lords or the European Court of Human Rights.

Detention without trial, Mark 3:  The government responded with alacrity to the demand by the police and security services for power to detain a terrorist ‘suspect’ without trial or even  charge for up to three months while the police conducted an investigation of his affairs with a view to a possible eventual prosecution.  The government accordingly included a provision for such a power (replacing the former limit of 14 days) in the latest of its interminable procession of anti-terrorist laws.  Parliament at last rebelled.  Ministers indignantly protested that the security forces needed much longer than a fortnight to complete complex investigations likely to entail decrypting masses of computer data and awaiting replies to their enquiries from slow-moving foreign security agencies.  This slyly evaded the issue.  No-one disputed the need for adequate time for the police to complete complex investigations:  the question was why they needed to put behind bars throughout that investigation a suspect against whom they had insufficient evidence to support a prosecution.  After protracted and largely irrelevant debate, parliament agreed to a ‘compromise’: a suspect can now be detained without charge or trial for up to 28 days.  The home secretary has already indicated his intention to try again for 90 days in the next of his anti-terrorist Bills.

Detention without trial, Mark 4:  Ministers are still determined to take powers to detain indefinitely people who have committed no offence and are unconnected with terrorism, but who suffer from an ill-defined (perhaps indefinable) "severe personality disorder" for which no treatment is possible other than what amounts to sedation.  They have so far failed to reveal where and by whom such unfortunate people are to be detained:  prison would seem obviously out of the question, not only because the prisons are already grossly overcrowded, but principally because these detentions cannot be imposed as punishments:  no question of guilt, retribution, remorse or rehabilitation can arise.  Nor can they sensibly be detained in hospitals if they cannot be treated, indefinitely blocking beds needed for patients who can and need to be treated — as well as obliging hospitals to set up all the apparatus required for compulsory detention: the locks and keys, the 24-hour guards, the control and searches of visitors.  And is the sponsoring minister really going to put his or (more likely) her name to the obligatory declaration that the measure involves no inconsistency with the Human Rights Act and the Human Rights Convention?  Well, yes, I suppose she or he will sign up without a hint of hesitation.  

Plenty of work piling up for the Law Lords, then.


4 Responses

  1. Tim Weakley says:

    I suppose this is a political move: that is, the intention is that those who are embarrassingly critical of the State will be considered as incurably mentally ill by definition?

    Brian adds:  That was certainly the official rationale for detaining political dissidents in the Serbsky Institute in Moscow, just along the road from the Anglo-American School where our daughters went to school in the 1970s.   A chilling reminder!  We may reasonably assume that the present government wouldn’t abuse powers like this, but by taking them they put a WMD in the hands of some future government that might be even more illiberal and authoritarian than the present lot.  Let’s hope that the medical and social services establishments and the genuine small-l liberals of all political parties in both houses of parliament will fight it tooth and nail.  It’s dangerous to leave this kind of thing to the judges.

  2. What is this nonsense about powers that cannot be trusted to a future government?  This government has shown itself to be utterly mendacious, corrupt and authoritarian.  This government conspired with a foreign power to lie to the nation in order to plan and wage aggressive war.  That’s about as low as it’s possible to get!  It has abolished habeas corpus, restricted freedom of speech and the right to assembly, and has shown that it is eager to abuse the powers that its shiny ‘anti-terrorism’ laws bestow.  This government cannot be trusted with the powers it has, let alone any new sweeping measures.

    Brian comments:  I can’t disagree, alas, with any of that, and I take your point.  But at the risk of sounding, or being, naive, I don’t believe that any foreseeable British government, under any of our current generation of politicians, is going to lock people up as being mentally ill as a way of taking political dissidents out of circulation, Soviet-style.  My point is that it’s terribly dangerous to put such a power into the hands of any government, however virtuous or villainous, since sooner or later it’s bound to be abused, either by the present régime or by some future government that can’t yet be foreseen.  For that reason among plenty of others, it’s always totally wrong to rely on ministerial assurances that sweeping powers won’t be abused.  Such assurances are absolutely worthless, indeed dangerous because they attempt to assuage perfectly legitimate fears.  And this must be the case regardless of the degree of virtue or villainy of any particular régime.

  3. Paul says:

    On the subject of control orders, the PM went on record saying that there were "hundreds" of people who were a threat but who couldn’t be dealt with in the time-honoured manner and that was why we needed control orders. Where are they all? Clearly not subject to control orders as there are only a couple of dozen of those. I think we should be told…..

  4. matt says:

    Brian,  I’m suprised to see you agreeing to the statement "This government has shown itself to be utterly mendacious, corrupt and authoritarian."  Mendacious? possibly (certainly suffering from terminological inexactitude in relation to the manifesto pledge on ID Cards which used the word voluntary very clearly and possibly guilty calumny in relation to its characterisation of Sadam Hussein).  Corrupt? I can’t accept that the case for this has been made.   Authoritarian? Well yes – but then again that is not untypical for a left of centre party.  Finally, if ID cards and the national register come into force we will all be – in principle – under some form of arrest where the prison officer will be the poor old bobby and formerly free individuals, the UK citizens, will be forced to produce their internal passports on demand or face a £2000 pound fine and criminal record. Or so the Daily Mirror alleges but is this really the case? Wading through the ID cards bill it seems that neither production on demand or the imposition of fines for failure to produce said documentation on demand is not in the act – or have I misread it? Frankly a clear guide to the provisions of the act would be welcome!  Lastly what is your view on the compromise between the Lords and Commons – both from a constitutional viewpoint and on the civil liberties aspect of the ID Bill as amended?


    Brian comments:  Matt, the government, or leading members of it, have been mendacious, not only by breaking their promise that ID cards would initially be voluntary, but even more flagrantly by deliberately misrepresenting the reliability of the intelligence put forward as justification for the attack on Iraq and by asserting that the attack was legal under international law when they knew it was not (not to mention advancing a series of mutually inconsistent reasons for attacking and occupying Iraq, some of which were blatantly fraudulent).  They have been corrupt in granting favours, including appointments to our national parliament, to  those who have given or lent money to their (and my) party.  They have been authoritarian in their countless assaults on our civil liberties, in their attempts to regulate our personal behaviour (the ban on smoking in pubs and clubs only the most recent example, with the impending national ID database much the worst if it’s allowed to happen), in their ruthless suppression of dissent and disregard for dissenting views in parliament and public opinion, in their erosion of the powers and rights of local government and their imposition of detailed decision-making from the centre in almost every field. 

    The fact that the Tories have been just as bad, or worse, on all three counts, is no excuse.

    The ‘compromise’ between the House of Lords and the Commons (i.e. the government) on ID cards and, much more importantly, the National Identity Database was not a compromise at all but a surrender (by the Tory peers). Those applying for passports after the due date will be compelled to have all their personal details entered in this monstrous and intrusive database, whether or not they choose to accept an ID card as well.  Even if they opt not to accept an ID card (and such refusal could only be a pointless gesture at that point), they will have to pay for one.  Since all this will be imposed on us if we want to go abroad (and since we need a passport to do so), to call it ‘voluntary’ is an insult to our intelligence.  It can’t be said too often that it’s the database and the virtually unrestricted access to it by every nark and snooper that’s the issue here, not the bit of plastic.

    The government says it’s confident that the Tories won’t commit themselves to repealing this poisonous measure if they win the next election.  If the Tories do promise repeal, it’s going to mean a painful dilemma for left-of-centre small-L liberals at the polling stations.