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.
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.
29 January 2005