It’s for the courts to take away our liberty, not a politician with a suspicious mind
On 26 January the home secretary, Charles Clarke, announced proposals for a new way of dealing with people he suspects of involvement in terrorism, to include a range of restrictions on their activities up to and including putting them under house arrest. These proposals are meant to replace the present law under which non-British terrorist suspects who can’t safely be deported can be held indefinitely in prison without trial, following the historic judgment of the law lords last December that the law as it stands is in breach of Britain’s obligations under the European Human Rights Convention (dating to 1950 and nothing to do with the EU).
In my view the new proposals would do little or nothing to remove the unacceptable features of the present law. Indeed in some ways they would make matters worse. The arguments are more fully set out in my article published in the Guardian on 28 January 2005 and in my letter published in The Times on the same day. You can read both these on my website, if you want to and if you haven’t already, by clicking on the links immediately above or by following the links at the bottom of my home page, https://barder.com. They are also on the Guardian’s and the Times’s websites respectively, but the versions on my website have the advantage of links to enable you to jump with one click to other relevant key texts and documents. [nb: since the makeover and redesign of this website in July 2005, some of the many hyperlinks may no longer work. I’m slowly working through them to up-date them; but if you spot any such errors, please let me know by message from the Contact section of this website.]
In a recent email message a friend has understandably misinterpreted one feature of the law lords’ judgment. It’s true that the law lords held that imprisoning foreigners without trial was disproportionate to the threat they posed. My friend inferred from this that the law lords were suggesting that foreigners should instead be liable to other restrictions on their movements and activities, short of being sent to prison.
They didn’t in fact suggest that. The law lords did two things: they scrutinised the existing law (under which the home secretary may detain foreign nationals, but not Brits, indefinitely and without trial on the basis of his "reasonable" suspicion that they are terrorists and belief that unless deported or detained they are a threat to national security) and declared it incompatible with the UK’s obligations under the European Human Rights Convention, on the grounds that it discriminates against foreigners in a situation where nationality is irrelevant to the threat, and because the power is disproportionate to the relevant threat (from terrorism). Secondly, they quashed the government’s opt-out from the Convention on the same grounds, although ‘with misgivings’ they didn’t disallow the government’s ‘state of emergency’, declared in order to make the opt-out possible.
The declaration of incompatibility doesn’t invalidate the law, which remains in force until and unless parliament repeals or amends it. But detentions under it are now legally in breach of the UK’s international obligations and the opt-out from the Convention is no longer in force. The law lords certainly didn’t recommend house arrest, tagging, or any other form of deprivation of liberty for foreigners (or anyone else): on the contrary, they denounced the present law, and in my view will strike down Charles Clarke’s latest proposals if they ever become law in their present form. They condemned the discrimination involved in subjecting foreigners, but not Britons, to the liability to be detained without trial, but at least one of them pointed out in his ‘Opinion’ that this couldn’t be taken as an invitation to the government to extend its application to UK citizens as well as foreigners (which is what Clarke proposes to do), since detention without trial was also in breach of the Human Rights Convention as being ‘disproportionate’ as well as discriminatory. In other words, the implication of the law lords’ judgment was that the whole system should be terminated as being in breach of human rights obligations, not that it should be made more widely applicable in slightly amended form.
The Home Secretary: at least the beard is different! 
Thus one flaw in the present law – that it discriminates against foreigners – is indeed to be cured, not by abolishing detention of foreigners without trial as the law lords implicitly required, but by applying the new proposals to Brits as well, a paradoxical consequence of the judgement since it actually makes matters far worse. Clarke tries to meet the problem of disproportionality by seeking the power to impose a range of restrictions on suspects, depending on the degree of wickedness of whatever he suspects them of planning to do: banning them from using mobile phones at one end of the spectrum to house arrest (plus all the other restrictions) at the other. This sounds like ‘proportionality’: but I can’t see the courts agreeing that although prison without trial is disproportionate to the threat posed, house arrest accompanied by a ban on telephones, the internet, contact with specific people, etc., is not. Both involve a deprivation of liberty without due process: the difference in the creature comforts available as between Belmarsh prison and a two-bedroomed flat in Burnley is legally neither here nor there. But it may once again take two or three years before a case to test this can be launched after the new system has passed into law and has gone through a series of appeals up to and including the law lords or the European Court.
There’s a striking contrast between the mild and conciliatory manner in which Charles Clarke has presented and defended his proposals, and the aggressively populist style generally adopted by his predecessor. This may well help him to push his eventual draft legislation through to triumphant enactment. His motto should be: ‘Suaviter in modo, illiberaliter et magis quam Blunkett in re.’ Moreover, I suspect that Charles Clarke is asking parliament for 120 per cent of what the government expects to get, incorporating several elements that can be sacrificed as ‘concessions’ to be represented as part of a ‘compromise’ that will satisfy enough of their critics in parliament, especially in the Lords, to get the rest of the package through – the rest of the package actually constituting 100 per cent of what they really want and expect to get. For example, I’m pretty sure that they will ‘concede’ to the critics’ demand for wiretap evidence to be made admissible in the criminal courts (which is almost entirely a red herring) and they might even in the last resort give up the house arrest provision, especially as they must know that it won’t get past the law lords, or if it does, will be struck down in the European Court of Human Rights. Even if the government does make a few concessions to the civil rights enthusiasts, this set of proposals ought to be rejected root and branch. It is an encroachment by the state on the liberty of the citizen unparalleled in peacetime and has no possible justification. If parliament swallows this, it will swallow anything. (Yes, no doubt it will.)
PS: I got up at 6.15 am this morning and struggled in to the BBC studios for a discussion-cum-interview on the Today programme on this issue, but the programme turned out to have been beset by various technical glitches this morning, as a result of which it was running very late, and the interview – by John Humphrys with Lord Carlile QC and myself – had to be cut short after just a few minutes. (You can hear the relevant segment, if your computer and internet connection can cope with streaming audio, anyway until the start of Monday morning’s Today programme, by clicking here: it’s about three or four minutes into that clip.) An extremely affable John Humphrys apologised afterwards for the brevity of the interview, and indeed did so on air, saying that a much more extended discussion had been planned. [This clip is probably no longer available on the BBC website.]
I’m suitably relieved to have escaped relatively unscathed over the past few months from encounters with those terrifying Star Chamber inquisitors John Humphrys, Kirsty Wark (twice) and Carolyn Quinn, not to mention sundry other lesser interviewers on other programmes. I’m bound to say that all three turned out to be the soul of courtesy and friendliness. I still await my blooding at the hands of the dreaded Jeremy Paxman.
Brian
29 January 2005
https://barder.com
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This post has been removed by the author.
I can’t recall whether it was during the Carlile/Barder/Humphries Today piece but it has been suggested that one way Clarke can extricate himself from the difficult position he now finds himself in, is to pass into law a bill creating an offence more appropriate to the terrorist threat than the catch-all conspiracy charge favoured at present. Perhaps an offence, I think is available in France, Spain or Italy, of performing an act preparatory to committing a terrorist offence. That of course would not avoid the difficulty in presenting evidence to the defendant the result of which may lead to the sources of that evidence being compromised and perhaps the human sources consequently imperilled. Such a tactic may be of little use to deal with the “Belmarsh 9”. It may fall foul of Article 7(1) of the Convention which makes it difficult, though not impossible, to impose retrospective criminal sanctions. Although the “Control Order” is a civil order, any breach would involve swingeing criminal penalties. And, as with Anti-Social Behaviour Orders with which the Control Order has been compared, it is most likely that a court would look at its effect rather than the label attached to it. My own suspicions concerning the use by the government of these civil/criminal provisions can be seen on my blog http://tonyhatfield.bogspot.com/2004/08/smuggling-statutes.html
Cheers.
t
Tony,
Thanks for that — especially for the reminder of the memorable piece on your blog of last August (incidentally there’s a small typo in the website address that you quote, with the ‘l’ missing from ‘blogspot’: the URL should be
http://tonyhatfield.blogspot.com/2004/08/smuggling-statutes.html).
You foresaw with uncanny accuracy the way these ‘civil orders’ would be used in such a way as to exploit the smallest breach in order to get the offender or suspect into prison, just as I foresee the ‘control orders’ proposed by Charles Clarke also being used (see my Guardian article at
https://barder.com/brian/detention1.htm). With these orders, too, the ‘suspect’ will be able to have his liberty removed or curtailed without the inconvenience for the state of needing to convict him of any terrorism-related offence.
I mentioned in my Today programme interview Lord Carlile’s suggestion that a new offence might be created on the lines of ‘action preparatory to a terrorist act’ to enable more suspects to be put on trial in a criminal court instead of being put under house arrest by the government. I said I thought this was well worth considering but pointed out that it should normally be possible to charge a suspect with conspiracy to commit a crime under existing law. There are some interesting suggestions in an article by Lord Carlile in the Guardian last December, at
http://politics.guardian.co.uk/attacks/story/0,1320,1377956,00.html. It’s interesting to note that he recommends in that article the introduction of civil orders of the kind now proposed by Clarke but with the major difference that Carlile notes that these could not include house arrest since that would fall foul of the Human Rights Convention.
One of the main problems in all this is that the existing law enables a suspect to be detained on the basis of what the home secretary believes he will do in the future, something that can’t necessarily be proved by evidence of what he has actually done in the past; and it looks as if the proposed control orders will work in much the same way. The need is for a court to be able to hear and assess evidence of past behaviour proving an intention to commit a terrorism-related act in the future.
Incidentally it was mentioned on the Today programme this morning that in France and Spain terrorist suspects can be detained for questioning (by an investigating judge, not by the police, still less by the executive or its agencies) for up to three and five years respectively (I have been helpfully reminded of this by my old colleague Derek M.). The possibility of the UK employing the inquisitorial system used elsewhere in Europe for terrorist offences seems worth considering, although as you rightly say it still doesn’t get round the difficulty that certain kinds of evidence may, if disclosed to the accused/the suspect and his lawyers, enable them to identify an informer whose life and safety could thus be endangered. Hence my own view that the SIAC procedures, with some evidence withheld from the accused if absolutely necessary, and his interests represented in closed sessions by a Special Advocate, may need to be transferred in some form to a new criminal court trying terrorism cases. Lord Carlile argues that this would mean having a court without a jury. I believe that it might be possible, despite the obvious difficulties, to reconcile those procedures with a jury, as touched on in my Guardian article. The civil rights purists continue to insist that *all* the evidence must be disclosed to a suspect or accused person, which is a counsel of perfection but not, I fear, a realistic one.
The Clarke proposals seem to be receiving a largely frosty response in the media and to some extent from the public, e.g. in the phone-in radio programmes. But I’m afraid that in the last resort MPs, and even peers, will swallow their misgivings (and principles) and will vote them through for fear of being accused by the Sun newspaper of being ‘soft on terror’.
These are dark days for civil rights in Britain.
Brian
30 Jan 05
https://barder.com/brian/
Am I right in thinking that the French judge you mention is a juge d’instruction, a kind of public prosecutor rather than wholly independent, and susceptible – I speak from years of reading Maigret stories – to political pressure, possibly? RGS
Ronnie — Yes, I think that was what was meant by Lord Carlile on the Today programme about the French examining magistrate system, but I couldn’t ask him for more information because he was doing his interview over the telephone from his home and I was in the studio. You will know more about this, if only from Maigret, than I do, but my impression is that a juge d’instruction does have a shade more independence and judicial status than our police or the CPS, and that his remit is more to discover the facts than to try to nail a specific defendant as in our adversarial system. But I may be quite wrong. I’m not sure on reflection that anything on these lines would sit easily with our traditional way of doing things, in fact.
Brian
https://barder.com/brian/