Handing victory to the terrorists

Page 18
Q-News, Issue 361
March 2005

Britain is the only country post 9/11 to have opted out of the right to liberty enshrined in the European convention on human rights. The December 2004 decision by the law lords criticising the government’s anti-terror legislation should have resulted in a major change to the law. But as Shami Chakrabarti and Megan Addis explain, the home secretary’s new proposals fall short of real reform.

In December 2004 the House of Lords’ decision A & others v Secretary of State for the Home Department delivered what will hopefully be a fatal blow to the cornerstone of the government’s anti-terrorism strategy: the indefinite detention of foreign nationals without trial under the Anti-Terrorism, Crime and Security Act 2001. By a majority of eight to one, the Law Lords ruled that the indefinite detention of foreign nationals without trial was contrary to the detainees’ human rights because it discriminated against them as foreign nationals and was a response out of all proportion to the perceived terrorist threat. However, because the Law Lords cannot strike down laws made by Parliament, their ruling has not led to the immediate release of the detainees.  Nonetheless, the government is still obliged to reform the offending law, but unsurprisingly, its proposals for reform have not indicated any newly found willingness to observe human rights standards and the rule of law.


The offending legislation

Passed hurriedly in the wake of the terrorist attacks of 11 September 2001, the Anti-Terrorism, Crime and Security Act 2001 authorises the indefinite detention of foreign nationals without criminal charge or trial, if the Home Secretary reasonably suspects that they are international terrorists, or more vaguely, have links with international terrorism. In order to do this, the Government had to opt out of the right to liberty, which is otherwise enshrined in Article 5 of the European Convention on Human Rights, barely a year after it ‘brought rights home’ by way of its much heralded Human Rights Act 1998. The European Convention on Human Rights permits derogation from the right to liberty in certain limited circumstances, when there is an emergency threatening the life of the nation, provided that the government only derogates to the extent strictly required by the exigencies of the situation. Accordingly, on 14 November 2001 David Blunkett declared a ‘technical’ state of emergency, a declaration which remains in force today. Up to 17 men, all Muslims who have sought asylum in the UK, have been certified as suspected international terrorists and detained in prison without charge or trial. Despite the threat from international terrorism after 9/11, no other party to the European Convention on Human Rights, including Spain who has suffered an Al-Qaeda attack, has thought it necessary to derogate from the Convention.

At the time, Liberty lobbied against the proposed legislation. We argued that the government had failed to meet the test for lawfully opting out of its obligations under the European Convention on Human Rights. We also contended that the measures were bad policy, a view which has sadly been born out by evidence of an increasing mistrust by, and alienation, of many Muslims in the UK. Sadly too, the legislation has created much suffering on the part of the detainees and their families. Many of them now suffer mental health problems, which have been well documented by the Royal College of Psychiatrists, and some have been removed to Broadmoor Hospital. Children no longer know their fathers and wives also suffer stress and mental health difficulties whilst trying to care for their families. Although Liberty was a lone voice against indefinite detention in 2001, we have been joined by a groundswell of condemnation of the policy. In its report of November 2004 on UK’s compliance with its obligations under the United Nations Convention against Torture, the United Nations Committee against Torture condemned both the use of indefinite detention and the conditions in Belmarsh and Woodhill prisons. (Committee against Torture 33rd Session 15 - 26 November 2004 ‘Consideration of Reports Submitted by States Parties under Article 19 of the Convention: Conclusions and Recommendations of the Committee against Torture’).  We have also received support from unlikely sources, with George Churchill-Coleman, head of Scotland Yard’s anti-terrorist squad dealing with the IRA in the 80s and 90s, telling The Guardian that ‘I have a horrible feeling that we are sinking into a police state … I have serious worries and concerns about these ideas on both ethical and practical terms. You cannot lock people up just because someone says they are terrorists. Internment didn’t work in Northern Ireland, it won’t work now. You need evidence’. (Alan Travis, Clare Dyer and Michael White ‘Britain “sliding into police state”’ The Guardian, Friday January 28, 2005).


A gesture of due process

Throughout the history of this legislation, the government has been keen to assert that detention without charge or trial does not breach the detainees’ human rights. Detention in Belmarsh or Woodhill prison did not breach human rights standards, the government claimed, because the detainees were free to leave their ‘three walled’ prison for their ‘homelands’ at any time. Indeed, one detainee with dual French and Algerian nationality returned to France where he now lives freely. One wonders why the British government is content for ‘suspected international terrorists’ to wander freely in other nation-states. Somewhat ironically the government has confiscated the passports of the British men who were imprisoned at Guantanamo Bay: on the one hand, it wants suspected international terrorists to leave the UK, on the other hand, it wants them to stay. Whatever the confusion in the government’s approach, its assertion of a ‘three-walled prison’ has always ignored why the detainees were in Britain in the first place: all are foreign nationals who have sought refuge from persecution in their home country.  The government simply cannot deport the detainees without breaching its strict obligation not to return people to countries where they face the risk of death or torture.

Furthermore, the detainees’ rights were not being abused, said the government, because they could challenge the reasonableness of the Home Secretary’s view that they are international terrorists in the Special Immigration Appeals Commission (‘SIAC’). Yet an appeal to SIAC is not a substitute for a criminal trial. SIAC’s sole remit is to decide whether the Home Secretary acted reasonably in detaining the detainee on the grounds of ‘reasonable suspicion’. SIAC is not an open tribunal. It sits in secrecy, presided over by a judge alone, with no jury. Government appointed and security vetted lawyers entitled ‘special advocates’ have access to the intelligence material and can test its veracity in closed court. However, the special advocates cannot discuss the secret material with the detainees, so the detainees have no opportunity to explain. There is absolutely no resemblance between proceedings before SIAC and a criminal trial where the defendant knows the case against him or her and has the opportunity to test that case in open court.
Although the detainees do not have access to the evidence against them, it is well known that the Home Secretary relies on information extracted under torture from prisoners held at Guantanamo Bay or elsewhere when forming his reasonable suspicion that someone is an international terrorist. Alarmingly, the Court of Appeal has found it acceptable for the Home Secretary to use information obtained by torture, provided that it was not Britain who had done the torturing.  The United Nations Committee against Torture was scathing of this decision, noting that although that UN Convention against Torture prohibits the use of evidence obtained by torture, the UK’s laws had been interpreted only to rule out the use of evidence extracted by torture in which UK officials had been complicit. The House of Lords is due to hear an appeal against this decision of the Court of Appeal. One only hopes that the Law Lords’ will again have the insight to condemn the Home Secretary’s distasteful reliance on evidence obtained by torture and the Court of Appeal’s abhorrent approval of it.


New proposals

Despite its previous justifications for the regime, in light of the House of Lords’ ruling the government is now obliged to remedy the incompatibility between the detainees’ human rights and the Anti-Terrorism, Crime and Security Act 2001. Earlier this year the new Home Secretary, Charles Clarke, announced that he intended to introduce ‘executive control orders’ which can be issued against both British and overseas citizens who are suspected of international terrorism. The control orders mean that if, on the basis of an intelligence assessment provided by the Security Service, the Secretary of State has reasonable grounds for suspecting that an individual is, or has been, concerned with terrorism, he or she may be subject to a range of controls restricting movement and association, access to communications equipment, placed under curfew and/or tagged, and possibly required to remain in his or her premises; effectively internment at home. There will be independent judicial scrutiny involving the hearing of evidence or ‘intelligence’ in open and closed session much like the SIAC process, however like SIAC itself, independent judicial scrunity of the process will only serve the government’s claim that indefinite detention at home does not breach its human rights obligations. The government has responded to the House of Lords’ criticism that subjecting foreign terror suspects to detention without trial, while allowing British terror suspects to be charged with a criminal offence or released, was discriminatory by subjecting all of its citizens to executive control orders. Lord Hoffman refused to comment on the discriminatory nature of the legislation: ‘I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well’.  That ‘executive control orders’ are likely to require further derogation from the European Convention on Human Rights indicates that the government has failed to grasp the House of Lords’ broader critique of human rights and the rule of law.

The restrictions that Mr Clarke is suggesting are currently in place in the case of ‘G’. In a move the Home Secretary at the time, David Blunkett, described as ‘bonkers’, ‘G’ was released on bail due to the effect indefinite detention was having on his mental health. ‘G’, who does not represent ‘a high escape risk’ due to physical disabilities, is currently under house arrest, under CCTV and other surveillance, cannot use his garden, is tagged, must ‘check-in’ several times a day and can only be visited by vetted individuals; his family, doctor and lawyer. In February this year the Home Secretary attempted to have ‘G’ returned to prison for a ‘serious breach of his bail conditions’; having un-vetted visitors last year. Neither ‘G’ nor his lawyer was informed of the details of the alleged breach. Despite constant surveillance, however, Charles Clarke could not prove ‘to the necessary standard’ that there had been a breach and ‘G’ remains under house arrest.

Perhaps more troubling are Mr Clark’s efforts to deport the men still in Belmarsh and Woodhill prisons to their countries of origin. As noted above, the government cannot deport people to countries where they face the risk of torture or death without breaching its other human rights obligations. In order to circumvent this, the Home Secretary hopes to gain ‘memoranda of understanding’ from the men’s homelands that they will not be subject to torture, persecution or death when they return. All these nations have well documented histories of human rights abuses. Sweden relied on diplomatic assurances in returning Ahmed Agiza and Mohammed al-Zari to Egypt and there is now evidence that both men were tortured once back in Egypt despite the Governments’ understandings. Ahmed Agiza, convicted and sentenced to 15 years of hard labour by a military court, is having his case considered by the UN Committee against Torture later in the year.  Again, in its report of November 2004, the UN Committee against Torture condemned the UK practice of seeking diplomatic assurances when returning people to countries where they face the risk of death or torture.


Suggestions for reform

Liberty believes that the government must set out a clear and prompt timetable for the charge or release of those detained under the Anti-Terrorism, Crime and Security Act 2001 and for the repeal of the legislation. Any new anti-terrorism legislation must:
- Be based on a real and explained need, rather than on politics.
- Be implemented without the need to derogate from the European Convention on Human Rights, and other international human rights standards.
- Reflect the importance of the presumption of innocence and the equal treatment of all people who reside in the United Kingdom.

The government must reconsider its refusal to allow the use of evidence obtained through the interception of communications in trials, a step which would make prosecutions more viable. Currently, intercept evidence is not allowed to be presented at criminal trials because the security services fear that their methods will be revealed. The new Metropolitan Police Commissioner Sir Ian Blair has called for the use of intercept evidence in criminal trials because it would make it easier to prosecute suspected terrorists.


Conclusions

Liberty believes that the government is obliged to protect its citizens from the threat of terrorist attack, however, we do not believe that such protection should be achieved at the price of human rights and the rule of law. The government must understand that respect for human rights standards is not symptomatic of being ‘soft’ on terrorism or careless about national security; rather, compliance with human rights standards is imperative in any anti-terrorism strategy. Britain’s experience in Northern Ireland indicates that failure to comply with human rights standards, through detention without trial, only serves to recruit disaffected people to terrorist causes. Failure to comply with human rights standards domestically makes it very difficult for Britain to encourage other governments to embrace human rights standards and democratic values. As Lord Hoffman said: ‘[detention without trial] in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for parliament to decide whether to give the terrorists such a victory’.