UK Liberty

The blame game

Posted in control orders, politicians on liberty, rule of law by ukliberty on May 27, 2007

Tony Blair in the Sunday Times:

The absconding of three people on control orders because of suspicion of their involvement in terrorism has, once again, thrown into sharp relief the debate about terrorism and civil liberty. Within the next few weeks we will publish new proposals on anti-terror laws. Our aim is to reach a consensus across the main political parties.

But at the heart of these new proposals will lie the same debate: the balance between protecting the safety of the public and the rights of the individual suspected of being involved with terrorism.

And by extension the rights of any one of us, because someday you or I might be suspected of being involved in terrorism, and I’m sure we will want our rights then, won’t we?

First let us clear away some of the absurd criticism of the police and security service over the three individuals who absconded.

After September 11, 2001, in common with many other nations, we passed new antiterror laws. In the aftermath of such an outrage it was relatively easy to do. We gave ourselves the ability, in exceptional circumstances, to detain foreign nationals who we believed were plotting terrorism but against whom there was insufficient evidence to prosecute. It was an important power. They were, of course, free to leave Britain. But we wouldn’t let them be free here. The ability to detain foreign nationals gave our services the ability to focus even more resources on the surveillance of British nationals who were a threat. It also sent out a strong signal of intent.

In December 2004 these laws were struck down by the courts. In his famous judgment Lord Hoffmann said there was a greater risk to Britain through the abrogation of the foreign suspect’s civil liberties than through terrorism.

Lord Hoffman in fact said,

I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power 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.

I’m sometimes not sure whether or not Tony ‘gets it’. I err on the side of believing he does get it, but integrity falls by the wayside in his appeals to popular sentiment. Let’s put it this way, he’s either stupid or he’s trying to pull the wool over your eyes – neither of which is good for the country.

In any case it seems glib to say that the “laws were struck down by the courts”. There was a lot more to it than that. Even quoting Lord Bingham’s ruling inadequately represents the reasoned judgement that led to it:

I would allow the appeals. There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001. There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status. The Secretary of State must pay the appellants’ costs in the House and below.

It is worth reading the full judgement to see why they reached that decision. It wasn’t just a whim: “shall we annoy Tony again, wot?”

Back to Tony:

So we were forced


to opt for the much milder remedy of control orders, applicable to both foreign and British nationals. These do not involve detention. They impose some limits on the individual’s freedom. They are better than nothing and have utility – because otherwise the individuals would have to be subject to even more intensive surveillance.

They were, however, much weaker than we wanted, perpetually diluted by opposition amendments, constantly attacked on civil liberty grounds.

He wants you to believe there were no Labour rebels. Of course there were – consider for example the Third Reading division of the Prevention of Terrorism Bill (the control orders legislation) and the other divisions in both Houses.

Notice the complaints in the debate about the lack of scrutiny the bill received. One problem here is this Government’s rush to legislate. (Yes, I’m playing the blame game – but unlike the Government I didn’t say I wouldn’t).

In addition, after September 11, and again after July 7, we have tried continually to deport foreign nationals who were either engaged in or inciting extremism. Again and again in court judgments we were forced to keep them here.

Yes, because the judiciary have found that the law says we can’t deport individuals who would be at risk of torture. But Tony knows that the judiciary don’t make the law – that’s Parliament’s job.

Of course it is much easier to blame the judiciary than to lawfully withdraw from the European Convention of Human Rights – we can’t simply derogate from Article 3, the prohibition of torture. (we could of course unlawfully ignore it).

The Government wants to mandate a particular interpretation of the Convention. We keep hearing about balancing the rights of the individual against the rights of the law-abiding majority.

Lord Chancellor Lord Falconer, for example, speaking on the Today programme in 2005:

I want a law which says the home secretary, supervised by the courts, has got to balance the rights of the individual deportee against the risk to national security. That may involve an act which says this is the correct interpretation of the European convention.

The problem is that the prohibition of torture is absolute: there is no balancing to be done. I suspect this finding – Chahal is a good example – will be confirmed in Ramzy v. the Netherlands, a case in which our Government is intervening.

In any case such a domestic law, if one were possible, would only affect the decision-making of our domestic courts, not the European Court, to which the individuals would no doubt ultimately appeal.

Tony seems to want us to think the courts are against the Government. But the domestic courts seem reluctant to clash with the Government on national security issues. Consider for example the following remarks from the judgement Tony referred to earlier:

All courts are acutely conscious that the government alone is able to evaluate and decide what counter-terrorism steps are needed and what steps will suffice. Courts are not equipped to make such decisions, nor are they charged with that responsibility. (paragraph 79)

The subject matter of the legislation is the needs of national security. This subject matter dictates that, in the ordinary course, substantial latitude should be accorded the legislature. (para 81)

They don’t want to get involved in political judgements and quite right too. When the Government says something is a matter of national security the courts will generally believe it. What the courts do is decide things on the basis of our laws.

In other words the courts must apply the law as they find it, not as they – or Tony – would wish it to be (this was said in a judgement, I’ll try to find it for context).

Back to Tony:

The important point is that although of the hundreds we keep under surveillance, many are UK citizens – as with these three individuals – many are not and in any event their influence and the ideas they import from abroad have a significant and radicalising effect. And, of course, we lost the crucial vote on 90 days’ precharge detention, despite offering a week-by-week court hearing throughout the 90 days.

Indeed, look at the results of that division: 49 Labour rebels. According to the Public Whip, “This is the first Government defeat in a whipped vote since 1997, managing to overturn their majority of 66”. And look at the next division, on 28 day detention: 49 Labour rebels.

So this isn’t just about the Conservatives, the Liberal Democrats, and the judiciary. This is about some people saying that the Government sometimes goes too far in what it proposes.

So when there is an outcry about the three absconding, we should remember that consistently over the past few years, and even after July 7, attempts to introduce stronger powers have been knocked back in parliament and in the courts.

Notice there is still no discussion of how the three absconded. I remain unsatisfied with the claim that they absconded because “stronger powers have been knocked back in parliament and by the courts”.

Indeed recently it was said, again in a court case, that unless the British government could prove that a foreign national suspect would not be at risk of mistreatment in his own country, we were obliged to keep him here.

Well I would like to know which court case that was, as I don’t recall reading that.

David Mery has kindly pointed to the case Tony may be referring to: DD & Anors v Secretary of State for the Home Department. In this case the court found that there was a risk of torture despite the good intentions of the Libyan government in entering into the Memorandum of Understanding. Read the judgement: the court finds the Government’s evidence very credible.

Let’s get some perspective here. People are deported all the time. In some cases an alleged risk of torture forms part of an appeal and the courts get involved. Sometimes it goes the Government’s way and other times it doesn’t.

An example of it going the Government’s way is Abu Qatada v. the Secretary of State for the Home Department. On 26 February 2007 the Special Immigration Appeals Commission (SIAC) dismissed Qatada’s appeal against deportation to Jordan, and one of the reasons was that the Commission found the MOU with Jordan was likely to be adhered to. There was no real risk of torture.

Another example is Y v. the Secretary of State for the Home Department. Here the court found that there was no real risk of torture to the individual should he be deported to Algeria.

It seems worth mentioning that the court in Y said, “It will only be a very exceptional case in which a decision, which conforms to the Immigration Rules, to deport someone who is a risk to national security, and who is not at risk of Article 3 ill-treatment at the hands of the receiving state, would be disproportionate under Article 8”.

In other words, it’s pretty rare that the court will find against the Government if there is no risk of torture.

Seems reasonable, doesn’t it?

I suppose at the heart of this is whether the rule of law should be supreme, or whether it should be the Executive – the Government. I would much rather live under the rule of law than arbitrary decisions, wouldn’t you?

So the fault is not with our services or, in this instance, with the Home Office. We have chosen as a society to put the civil liberties of the suspect, even if a foreign national, first.

Nonsense. We are putting the law first. The suspect, any suspect, has rights under the law. It may seem inconvenient at times but the rules are the same for all of us.

I happen to believe this is misguided and wrong. If a foreign national comes here, and may be at risk in his own country, we should treat him well. But if he then abuses our hospitality and threatens us, I feel he should take his chance back in his own home country.

I must confess that somewhat accords with my view. But on the other hand, is it right to deport people if they face a risk of torture, no matter what they have done?

It is a difficult question for me to answer. Regardless, the law says we can’t deport them if they face torture, and that is that until Parliament changes it or the judiciary interpret the law differently (which seems unlikely).

(Note that the people we are talking about may not even have committed an offence. John Reid, the Home Secretary, said that the three individuals who recently absconded don’t present a danger to the public. They apparently wanted to go to Iraq and fight our troops.)

Anyway, what about British nationals?

As for British nationals who pose a threat to us, we need to be able to monitor them carefully and limit their activities. It is true that the police and security services can engage in surveillance in any event. But this is incredibly time-consuming and expensive, and even with the huge investment we have made since 2001, they simply cannot do it for all suspects.

It seems to me that’s just something we need to accept: we cannot totally remove the risk of terrorism.

Over the past five or six years, we have decided as a country that except in the most limited of ways, the threat to our public safety does not justify changing radically the legal basis on which we confront this extremism.

In fact, we have decided this over the past century, if not longer. Lord Hoffman:

The exceptional power to derogate from those rights [Freedom from arbitrary arrest and detention] also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government.

It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised.

But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the Convention, when it speaks of “war or other public emergency threatening the life of the nation”, accurately states the conditions in which such legislation has previously been thought necessary.

Are we supposed to believe “the threat” is similar to that in the First and Second World Wars?

Back to Tony:

Their right to traditional civil liberties comes first.

Nonsense. It is simply that they have rights under the law, just like the rest of us.

I believe this is a dangerous misjudgment. This extremism, operating the world over, is not like anything we have faced before.

Here’s Lord Hoffman again:

The technical issue in this appeal is whether such a power can be justified on the ground that there exists a “war or other public emergency threatening the life of the nation” within the meaning of article 15 of the European Convention on Human Rights. …

Article 15 says: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”.

The Attorney General’s submissions and the judgment of the Special Immigration Appeals Commission treated a threat of serious physical damage and loss of life as necessarily involving a threat to the life of the nation. But in my opinion this shows a misunderstanding of what is meant by “threatening the life of the nation”.

Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. …

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda.

Which accords with my own view. Let’s get some more perspective here.

Some 3000 people a year die in road accidents. So why don’t we lock up all motorists?

The question is one of proportionality. Is the proposed power a proportionate response? In other words, is the measure “strictly required by the exigencies of the situation”?

Yes the terrorist atrocities committed by Al Qaeda supporters have been horrifying and frightening. Many people have been killed and injured. Some terrorists want to change our way of life. But there is no way they can beat us unless we let them. Unfortunately Tony seems to be (unwittingly) on their side.

Back to Tony:

It needs to be confronted with every means at our disposal. Tougher laws in themselves help, but just as crucial is the signal they send out: that Britain is an inhospitable place to practise this extremism.

This is part of a bigger picture, in which a considerable part of media and public opinion continues to blame us for causing the extremism.

This extremism can be defeated. But it will be defeated only by recognising that we have not created it; it cannot be negotiated with; pandering to its sense of grievance will only encourage it; and only by confronting it, the methods and the ideas, will we win.

I agree with his last paragraph. I also agreed with him when he said, after the 7 July 2005 bombings, that

It is through terrorism that the people who have committed this terrible act express their values and it is right at this moment that we demonstrate ours.

They are trying to use the slaughter of innocent people to cow us, to frighten us out of doing the things that we want to do, of trying to stop us going about our business as normal as we are entitled to do.

They should not and they must not succeed.

It is a pity he didn’t mean any of it, isn’t it?


It seems worth mentioning that the Government doesn’t want control orders to be confined to terrorists.


4 Responses

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  1. […] cannot defend our freedoms by sacrificing themA good pointFreedom from Scrutiny Bill underminedThe blame gameControl order abscondersReid herringWhere are the civil […]

  2. David Mery said, on May 28, 2007 at 2:37 am

    > Well I would like to know which court case that was, as I don’t recall reading that.

    The court case may be [2007] UKSIAC 42/2005 –

    br -d

  3. ukliberty said, on May 28, 2007 at 6:14 pm

    Thank you Mr Mery, I forgot about that case. I have updated my article.

  4. […] Comments Absolute prohibition against torture reaffirmed « UK Liberty on Here we go againThe blame game « UK Liberty on On the growth of civil orders to prevent crime and the Serious Crime BillTrust « UK […]

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