[Media-watch] Internment + house arrest - easy read!

[Sigi D]

He there,
This is an article written for 'The Tablet" by Prof
Conor Gearty, LSE, Centre for the Study of Human
Rights.
Easy to read, gives a good overview of the  issue.

	"Internment and house arrest - recent developments"
(article by Professor Conor Gearty) - see
http://www.lse.ac.uk/Depts/human-rights/index_documents.htm
(a pdf download)
Conor Gearty
The Tablet, February 2005
The most important legal issue confronting the
government in the first half of 2005 is
what to do about the remarkable pre-Christmas decision
of the House of Lords in the
Belmarsh detention case. As is well known, the ruling
concerned the power to hold
non-nationals in indefinite detention without trial
which the executive (in particular the
then Home Secretary David Blunkett) had obtained from
Parliament in the immediate
aftermath of the 11 September attacks. These powers
had been judged necessary
because it was asserted that there was a small group
of suspected international
terrorists (all connected to Al-Qaida) who could
neither be expelled from the country
(for fear of being killed or tortured in any state
willing to taken them) nor prosecuted
for specific offences here. Even at the time, when the
levels of anxiety engendered
by 11 September were still very high, this had seemed
a draconian and
disproportionate response to a threat that was
invisible to many and purely
hypothetical to all. But the government had pushed it
through, and some seventeen
suspects were promptly swept up and placed within a
regime of detention that
threatened to be indefinite and was subject to no
proper judicial accountability.
Despite having expressed serious misgivings about the
law when it was first enacted,
the Lord Chief Justice Lord Woolf and two colleagues
upheld it when the matter
came before them in the Autumn of 2002. It seemed to
many that the provisions were
well on the way to becoming fully embedded in our
legal system; indeed some of the
diluted legal practices it had introduced (such as
special advocates instead of proper
defence counsel) were beginning to be extended to
other branches of the law.
Now in an unprecedented ruling, in which no fewer than
eight of the nine senior
judges who heard the case in the House of Lords have
joined, the whole internment
policy has been brought crashing down. Only one law
lord, Lord Hoffmann, thought
that the courts could actually override the
government’s assessment that there was
the ‘public emergency threatening the life of the
nation’ which under human rights law
is required before you can restrict basic freedoms
such as the right to liberty. But
seven of the nine were clear that the measures
actually deployed by the authorities
Page 2/4
to deal with the emergency were neither necessary,
rationally connected to the aims
being pursued, nor objectively justifiable. The
cumulative effect of the ruling is quite
devastating. Once the Attorney General’s argument that
their lordships (and one
‘ladyship’, Baroness Hale of Richmond) should simply
defer to the executive in this
area had been rejected, he simply had no answer to the
questions that were on the
judges’ minds. Why allow these so called suspected
international terrorists to leave
the country at all, if they were so dangerous? If the
power is only restricted to Al
Qaida, why is the legislation itself drafted in such
wide terms, potentially exposing to
indefinite detention a far wider category of persons?
Most damagingly of all, why is the law restricted to
foreign nationals: either there are
no British suspects at all (manifestly absurd) or the
law can cope adequately with
those suspects, but if the latter is the case, why
should it not also be true for the
handful of suspects for whom expulsion is not an
option? Reading the judgments is
like listening to a nine hour Today programme
interview in which only reason is
allowed to be deployed. Stripped of the vagueness of
the kind of political rhetoric to
which Ministers usually resort when justifying this
kind of power, the illogicality and
sheer irrationality of the targeting of foreigners in
this way was laid bare for all to see.
It is perhaps just as well for Mr Blunkett that he had
for other reasons been required
to leave office the day before these speeches by
Britain’s senior judges were
delivered; it is hard to believe that he could have
survived such a judicial battering,
inevitably raising as it did questions about his
competence and judgment.
So what now? This is where the politics of the
judgment come into play, and the
uniqueness, some would say the democratic beauty, of
the Human Rights Act
become apparent. The lords’ ruling may have been a
devastating knock-out blow –
but it nevertheless left the detention player firmly
in the ring. British human rights law
does not allow the judges to strike down legislation,
as opposed merely to declaring it
incompatible with human rights, which is what has
happened here. It was technically
possible for Charles Clarke and his ministerial
colleagues to have brazened it out,
keeping the laws in place, and getting Parliament to
renew them as and when
necessary. But this might have awakened the
consciences of even the most new
Labour of loyalists on the backbenches, and it would
certainly have gone down badly
Page 3/4
in Strasbourg where (when the case reached it) the
European judges would have
had the power to harden the advice of the lords into a
solid international law
obligation on the UK.
The government therefore decided that the best way out
of the impasse was via
house arrests. A bail application for a detainee under
the old regime had been
permitted with conditions which effectively amounted
to house arrest. This had been
noted in the Lords ruling as an indication that
alternatives to detention were available.
The government took the hint and sought to present the
change as a liberal
concession, evidence of its principled commitment to
human rights. This worked only
until the implications of house arrest had been
properly digested. Clifford Longley
made many of these points in his Viewpoint piece in
this magazine last week. The life
of somebody under perpetual house arrest is in many
ways as bad as that of a
detainee. The power, moreover, would be deployable
against all and sundry and not
just supposed Al-Qaida operatives. Whether or not
compatible with human rights law
in the narrow sense, the spectre of the South Africa
of old and the Burma of today
seeped inexorably into public discussion. Hostility to
the proposed changes gathered
momentum, and the government now finds itself –
rightly – on the defensive.
The key question remains the simple one of why
suspected terrorists are not charged
or released. There is a plethora of offences
available, many terrorist-specific and of
extremely wide reach. It is said that the evidence on
which such charges could be
brought is in the form of wire-taps and other forms of
covert surveillance the
admissibility of which is not permitted by law. But if
that is the case, then simply
change the law: a country should not be allowed to
drift into authoritarianism merely
on account of squeamishness at the prospect of a minor
procedural reform. The
suspicion is that those relying on the ‘intelligence’
provided by such intercepts do not
want such data exposed to the light of day. Or, even
worse, that there is no such
intercept evidence, that people are being held on the
word of informers, other
suspects or as a result of ‘information’ supplied by
foreign intelligence sources,
including from such services in those very countries
to which we have agreed we
cannot send suspects least they be tortured on their
return. Last weekend the new
Metropolitan Police Commissioner added his voice to
those calling for the admission
Page 4/4
of intercept evidence in court, and it is difficult to
see how this change can be resisted
for much longer. When the change comes, it will be
another victory for the principles
of legality and due process over creeping democratic
authoritarianism. If the change
does not come, then the house arrest policy will be
exposed as internment via
another name, and it may not be long before it meets
the same legal fate as the
executive incarceration against which the lords have
already so conclusively and so
dramatically ruled.



	
	
		
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