Oppose the house arrest proposals: write to all the MPs and peers you know

The government evidently plans to hustle its deplorable proposals for house arrest, without trial on the orders of a politician, through Parliament this week, relying on its docile majority in the House of Commons and (to get them through the Lords) on the fear of the Tories and Lib Dems that if they persist in their principled opposition, they will be labelled at the forthcoming general election as ‘soft on terrorism’. There is not much time to do what we can to stiffen the resolution of opponents of the proposals in both Houses of Parliament to what Bob Marshall-Andrews MP has rightly described as the greatest breach of our ancient liberties for more than two centuries.
If you agree, please feel free to draw on, or indeed just to forward as it stands, the message below which I have e-mailed to a group of MPs, one peer and one prospective Labour candidate, and urge determined opposition on your own MP, and on any MPs or peers whom you know. But you need to hurry if you’re going to have any effect!

Here’s what I have sent to the MPs, etc.:

>>This is from Brian Barder, a former member of the Special Immigration Appeals Commission who resigned early last year because of my objection to the extension of SIAC’s remit to include appeals against detention without trial, a system that I was denouncing as abhorrent long before the law lords finally condemned it. I have been campaigning against the home secretary’s even more objectionable house arrest proposals in articles in the Guardian, in letters to the Guardian, the Times and the Independent, and in numerous television and radio interviews. The texts of the main articles and letters are on my website, https://barder.com/brian/, if anyone wants additional arguments for the forthcoming debates in Parliament.

I am writing to urge you to continue to oppose Charles Clarke’s proposals in every way open to you, and to continue to insist on the principle that it can only be a proper court of law (not even a judge or team of judges, still less a politician) that should have the power to deprive men and women of their liberty. Mr Clarke’s "concession" of empowering a judge to review and if necessary quash a control order made by the home secretary is worthless: it does no more than import the SIAC system used under the present discredited law into the new proposed law, which is of far wider application and scope.

There seem to me to be two main shortcomings in the Clarke proposals:

1. There is a world of difference between (a) a proper trial in which a court of law decides whether there is proof beyond reasonable doubt of evidence on which to convict an accused person of an offence under the law, and if so to send him to prison for a defined period of time: and (b) the detention by a politician of a person whom he merely suspects and believes to be involved in terrorism, with a judge subsequently assessing whether the detention order was ‘reasonable’ – i.e., without being able to enquire into whether or not the detainee has committed any offence.

2. The home secretary claims (e.g. on this morning’s Today programme) that he is responsible for national security whereas the courts are not; and that accordingly he, not the courts, should decide who needs to be detained in the interests of national security. But this is plainly wrong. It flies in the face of the entire tradition, going back to Magna Carta, that the executive should not have the power to deprive anyone of his liberty without a trial and conviction in a court of law. If the Clarke doctrine were to be accepted, it would open the door to every kind of abuse. The home secretary is responsible for protecting the nation against murder and burglary: but even Mr Clarke would hardly claim that this justifies him in transferring from the courts to himself the power to decide who should be sent to prison for those offences.

There is an alternative to the Clarke proposals which should command virtually universal support, and which I tried to summarise in a letter published on 18 February in the Independent:

"The Conservatives and Lib Dems (and reportedly many Labour back-benchers) are right to reject Charles Clarke’s proposals for a new law replacing the present regime under which non-British nationals may be detained without trial by order of the Home Secretary.

“It now looks as if when Michael Howard and Charles Kennedy meet the Prime Minister and the Home Secretary on Friday to try to hammer out an agreed way forward following the Law Lords’ condemnation of the present law, Tony Blair may offer as a ‘concession’ the admissibility of intercept evidence (from phone tapping etc) in the criminal courts, in exchange for the Tories and Lib Dems dropping their opposition to the rest of Charles Clarke’s ‘house arrest’ proposals.

“Mr Howard and Mr Kennedy should reject any such deal. …[A]dmissibility of intercept evidence would make very little difference to the number of suspects who could be tried in court instead of detained by the Home Secretary. The much more difficult problem is evidence which, if disclosed to a suspect, could identify the informer who supplied it, endangering both the informer and the security services’ ability to recruit informers in future, a vital weapon against terrorism.

“If we are to return the power to deprive people of their liberty to the courts, where it belongs, and remove it from an already over-mighty executive, the least bad solution is to give a special criminal court the power, when absolutely necessary and subject to stringent safeguards including trial by jury and proof beyond reasonable doubt, to withhold certain kinds of evidence from the accused, hearing it in closed sessions where the accused’s interests are represented by a security-cleared special advocate (as happens now in the Special Immigration Appeals Commission).

“This breaches the important principle of the right of the accused to know all the evidence against him: but the only practical alternative is something like the Clarke proposals, which still breach the principle of full disclosure but in addition breach the even more important principle that no one should be deprived of his liberty, without trial, by order of a politician."

The Terrorism Act 2000 creates numerous offences, sweepingly defined, which are perfectly adequate to enable anyone suspected of involvement in terrorism to be charged and tried in a proper criminal court for what he or she has actually done, not for what a politician thinks he might do in future. And the question of the admissibility of intercept evidence, which seems to obsess so many commentators, is basically a red herring, as argued in my letter in the Independent (above). Please don’t allow yourself to be diverted down that blind alley!

Brian Barder, 22 February 2005<<

It’s a dark day when we have to rely on the unelected chamber of Parliament to defend our ancient rights and liberties. But the more opposition is voiced to these proposals in the House of Commons, the more the House of Lords may be emboldened to reject them.

PS: Since posting the above, I have listened attentively to the home secretary’s statement in Parliament this afternoon (22 February) introducing his proposed new legislation, and to his replies to many questions, mostly hostile, some passionately so. Alas, nothing newly revealed about the Clarke proposals affects in any way what I had already written above. Indeed, Charles Clarke has made a bad prospectus even worse by seeking to insist that whoever takes the decision to deprive a person of his liberty must be accountable for that decision to parliament (while in the next breath refusing to discuss ‘individual cases’ raised with him): so, he says, decisions are for him because he is accountable to parliament, not by a judge or a court which is not. As his Tory namesake and predecessor, Ken Clarke, acidly pointed out, it is precisely because the judges and courts are wholly independent, and not accountable to any outside body, that it is they and only they who can be trusted to make impartial decisions in matters of an individual’s freedom or incarceration. He might have added, but refrained from doing so, that such decisions, if made by a politician, are likely to be distorted and corrupted, not only by considerations of party political advantage but also by fear of what the wildest of the tabloids will say about them: another potent reason for ensuring that they should be kept well away from the politicians. It’s hard to believe that a man as intelligent and well educated as Charles Clarke finds it difficult to grasp such elementary constitutional principles. It was galling for a life-long Labour supporter to hear a Labour minister aggressively defending the most authoritarian and totalitarian measures to have been proposed in peacetime by any government in living memory, while silently applauding a magnificent and well-documented demolition job performed in reply by David Davis on behalf of the Tory opposition.

Brian
https://barder.com/brian/