Kingdom of Great Britain, Northern Ireland and Guantánamo Bay
Beyond All reasonable doubt, Clarke is making Britain less worthwhile defending against terrorists and the like. Couldn't we make Clarke the first internee under his own law
for damaging British life way beyond that achieved by any mere terrorist?
From The Guardian
Today MPs will be asked to abolish the presumption of innocence for British
citizens. They will be asked to approve provisions in the prevention of terrorism bill allowing Britons, for the first time in peacetime, to be detained in their own homes or in government accommodation on the say-so of the home secretary.
Clarke's bill is passed, British citizens will be branded terrorists without charge or trial and without any right to know the evidence against them, or to contest that evidence.
During the past few days, attempts have been made to buy off
opposition to this unprecedented executive power-grab by conceding that a high court judge should be involved early in the process, perhaps 24 hours after the home secretary issues a "control order". Later there would be a full hearing before a
judge. But even requiring the home secretary to apply to a judge in advance would not begin to cure this assault on our liberties. It would be no more than a fig leaf to cover a naked abuse of power.
The bill has been brought in to replace
emergency legislation rushed through after 9/11 allowing only foreigners suspected of involvement in terror-related activities to be detained without trial. The Anti-Terrorism, Crime and Security Act 2001 was damned by the law lords as a breach of human
rights. The new law will apply to British citizens and foreign nationals alike, but it would violate virtually all the elements of a fair trial - the right to know the charges against you, to see and rebut the evidence against you, to have a legal
representative of your choice, and to have equality of arms between you and the might of the state.
The state will not be required to prove involvement in terrorism beyond reasonable doubt, the criminal standard of proof. For house arrest, the
civil standard of proof - "on the balance of probabilities" - will be enough. The home secretary will have to prove only that it is "more likely than not" that you were involved. For lesser types of control order - electronic tagging,
bans on the use of telephones or computers, confiscation of passports, restrictions on the people you can associate with - mere reasonable suspicion will be sufficient to brand you a terrorist.
The "evidence" produced will not be like
that put forward in a criminal trial, but a mass of intelligence information and assessments - which neither you nor your lawyers will be allowed to see. A special advocate - an independent barrister appointed by the attorney general - will be able to
see it and try to put forward your case, but won't be able to tell you or your own lawyers what's in it or find out if you have an answer to it.
Take the Tipton Three, held at Guantánamo Bay for two years and later released without charge.
They were accused by the Americans of being in a video shot with Osama bin Laden in 2000. At the time, one was working in an electrical store in the Midlands, and the other two were in trouble with the British police. Under the special advocate procedure
they would not be told about the video and would not be able to produce genuine alibis.
As Ian Macdonald QC, a former special advocate who resigned in disgust at the "odious" regime, told MPs on the constitutional affairs committee, the
system carries "an inherent risk that you end up with quite shoddy and misleading intelligence. There is no way you can ever be sure that that is accurate information on which you are acting." Even more disturbingly, it allows the use of
information extracted by torture - notoriously unreliable - as long as the torture happened outside Britain.
The involvement of a judge, whether before or after the order is made, will do little to mitigate the unfairness - unless the judge rules
the whole system a breach of the right to a fair trial guaranteed by article six of the European convention on human rights. There is a strong chance that is exactly what will happen, as MPs and peers on the joint committee on human rights warned last
week. That would leave the new law, like its predecessor, in tatters.
Ben Emmerson QC, the leading human rights lawyer who acts for the men still detained in Belmarsh prison and Broadmoor hospital under the old legislation, wrote in a legal
opinion: "It is my view that the entire scheme established under the bill as it stands is incompatible with the United Kingdom's international obligations, and would be vulnerable to challenge in the courts." Even if a judge were asked to
impose the order, rather than having it imposed by the home secretary with an appeal to a judge, the regime would still breach the right to a fair trial, he wrote.
Coming from the barrister who played the biggest part in training the judges for
the implementation of the Human Rights Act, that should give the government pause for thought. Why not, with the cooperation of the Tories and the Liberal Democrats, renew the 2001 act for a few months, while trying to find a solution that doesn't
threaten all our liberties?