A leading human rights lawyer finds house-arrest plans an affront to justice
Sunday February 27, 2005
The government had absolutely no idea its 'control orders' scheme would unleash such profound horror well beyond the usual civil libertarian lobby. When the Law Lords delivered their judgment that detention without trial of non-citizens was contrary to human rights, it gave Charles Clarke, the Home Secretary, the opportunity to draw a line under the hasty legislation passed immediately after 11 September 2001 and to return to legal principle.
The precisely drafted judgments of our most senior judges clearly outlined the reasons why law matters and how law is there to provide an effective regime for the resolution of difficult issues, even in the face of terrorism. They restated unequivocally the imperatives of due process and equality before the law.
David Blunkett had abandoned that high ground for the shallows usually inhabited by the non-democrat. But instead of restoring our established legal precepts, Clark responded like a technocrat. If the judges complain about our detaining only non-citizens, we shall include everyone in any new scheme. If they say we are using the same system for different kinds of threat and this creates unfairness, we shall create a ladder of illiberality.
The idea of house arrest was presented as a humane response whereby people could be detained but the state would not have to cook their meals. It had not occurred in the history-free zone of Downing Street that the suggestion might tap into deep wells of pain connected with South Africa and Burma or that the very notion would affront British beliefs that your home should not become a place of punishment, or that incarceration of a person in their home could affect the freedoms of other family members.
The idea that a detainee's flat on the 16th floor of a tower block in the East End of London in a Muslim stronghold might become the focus of community demonstrations does not seem to have occurred to Clarke.
He has tried to mollify his critics by explaining that he would hold such powers in reserve and would only use them in extremis. Nevertheless, he would still make such unlimited house detentions on the basis of suspicion gleaned from intelligence. No further evidence would be necessary.
According to the new legislation, he would not have to disclose to the suspect or the court-appointed lawyer any unused material which might be exculpatory. Indeed, he could continue to rely on intelligence obtained by torture as long as the nasty business did not happen in our jurisdiction. What Lord Scott called 'the stuff of nightmares' continues. So much for the new spirit of liberalism.
I keep being parliament, as if I were advocating giving them the matches. Of course you order the arrest of such suspects. You interrogate them in the presence of lawyers. You forensically examine every fibre of their existence. You swab for explosives and biological chemicals. You disembowel their computers and mobiles. You establish their contacts and movements. You question every contact they have.
Under current anti-terror laws, you can hold them for up to 14 days. If there is nothing to show after that search for evidence it could just be that the intelligence was duff. But if you do have evidence, you charge them and bring them before a court to sanction further detention.
Sometimes the initial charge will be less than the one which you think will ultimately be forthcoming. There are already many general options available to prosecuting authorities, including conspiracy charges. What is unacceptable is unlimited detention without a trial. There comes a point when detention becomes punishment and punishment should only be meted out by a judge after a fair trial.
Control orders which fall short of house arrest are not to be treated as some sort of soft option about which we can be sanguine. These, too, may involve long periods of house detention, infringements of liberty and curfews, all based on intelligence which may be little more than gossip and hearsay. Anyone subject to such an order will be branded a terrorist for ever, based on unchallenged, undisclosed material which may have come from an informant who has reason to lie or who is seeking some benefit in return for information.
The intelligence which justified the detention of the men who have spent three years in Belmarsh is apparently no longer such a source of alarm; they are to be released. The only thing that seems to have changed is the Home Secretary's mind.
What we should be reaffirming is that people should be detained only pending a criminal charge. If people are suspected of terrorism, they should be investigated thoroughly and if there is evidence they should be put on trial. If not, but suspicion remains, they should be kept under surveillance. Instead we have a misconceived suggestion by some decent parliamentarians that all will be well if a judge authorises the house arrest or control order.
Sugar-coating the unpalatable by suggesting all will be well if a judge makes the order is to forget that it may not feel significantly different if it is Mr Justice Floggem or the Home Secretary who issues an order if you still don't know the nature of the allegation or the evidence on which it is based.
Sometimes, judges can be unwittingly collusive in the erosion of the rule of law by allowing themselves to be co-opted into processes where the genuine balancing of the security of the state and human-rights considerations becomes impossible. Often they, too, do not have access to all the information. By taking on the role of control-order dispenser in camera, the judges would provide a veneer of legitimacy to processes which fall short of international standards of human rights. Judicial authorisation doesn't improve bad law.