The judgement handed down by the House of Lords on 16^th December which found in favour of prisoners in Belmarsh held under the Anti-Terrorism, Crime and Security Act 2001, appeared, according to reports, to deal the Government a heavy blow. While this gave a full day’s respite from reports about a particularly reactionary ex-Home Secretary’s boring but squalid private life, it also unleashed a host of legal inaccuracies.

The Law Lords did not strike down the said Anti-Terrorism Act as Jon Snow claimed on Channel 4 News. Nor did their Lordships hold it to be “illegal” as was widely reported. While media reports generally failed to instruct us in the law, it did tell us the extent to which people increasingly look to the Judiciary and groups such as Liberty to oppose a government that still appears strong, even though it has clearly reached the latter stages of political and moral decay. Need I point to the Tories demand for a judicial inquiry into Blunkett's handling of his lover’s nanny’s visa application. In keeping with this Government’s track record, Blunkett has resigned, claimed he has done nothing wrong (which is a lie – where do I start), and threatens an all too soon come back. What is needed is more political action, not inquiries. But here I digress.

The Human Rights Act 1998 brought human rights into domestic law. The majority of human rights under the European Convention (ECHR) are qualified rights and the 1998 Act makes clear in s3 that while courts should try to interpret British law in such a way as to not conflict with those rights, it cannot strike down offending statute. This is in stark contrast, as we know, with the European Communities Act 1972 whose s2(1), makes rights under EC law automatically enforceable and s2(4) which means that domestic law must be construed  in accordance with EC law. The most that the courts can do when they find a law breaches human rights is to make a s4 declaration of incompatibility.

Conflicts between the Home Office and the courts are not a new occurrence. Every Home Secretary provides the tough, no-nonsense face of every administration. The Northumbria Police Authority, for example, challenged the right of the Home Office to equip the police with plastic bullets and tear gas during the miners` strike. The Home Secretary has also been challenged for breaching his own immigration rules or not explaining them sufficiently, and also for trying to use royal prerogative powers to override a court order that an immigration applicant should be kept within the jurisdiction of England. Such cases may have given newspapers the chance to rail against loony liberal judges, but they have also kept the British tradition of the rule of law under which even Government departments may not exceed their statutory powers.

Normally, the statutory powers under which a government operates are relatively simple in scope and purpose. The Human Rights Act, though, brings in often conflicting as well as limited rights. Thus the courts are given discretion to balance rights on a case, by case basis. For example, does Naomi Campbell’s right to privacy (even in a public street, outside Narcotics Anonymous) outweigh the photographer's right to “expression” i.e. sell the photo? Thus Human Rights go against the British tradition of favouring legal clarity over judicial flexibility. The Human Rights Act was expected to provide many more causes for civil claims but it was not expected to be of relevance to criminal cases – until the Government blurred the line over terrorism.

The terrorists who carried out the 11^th September 2001 attacks in the United States had little in common, except that;

1)      They were foreign nationals

2)      They were legitimately in the country

3)      They were highly educated.

4)      They were converts to a type of fundamentalism which channelled their sense of social guilt and moral disgust into terrible, nihilistic acts.

The problem was that the terrorists were drawn from the same demographic pool of skilled young foreign workers that western countries generally want as economic migrants. Therefore how could such an immigration policy be maintained, while providing reassurance against terrorism? The UK invoked an article 15 public security derogation, citing an immediate threat to the life of the nation, when it passed the Anti-Terrorism, Crime and Security Act. Changes were made to previous statute to allow certain asylum seekers to be designated as “terrorists” prior to a conviction. Article 5 offers a qualified right to liberty, in accordance with the law and article 14 states that there should be no discrimination in enjoyment of Human rights on the basis of, inter-alia, nationality. In addition, Article 3 ECHR is one of the few unqualified rights, which prohibits torture. It also prohibits deporting someone who is likely to face torture and persecution. The Attorney General for the Government said that the held suspects are imprisoned within three walls, not four. They are free to go but have nowhere safe to do so. This produces the strange situation of the terrorist suspects being given a sort of protective custody against their own governments. At the same time, either the evidence is insufficient to bring charges in Britain, or the Security Services want more secrecy in the trials. Another problem would be with what the Crown Prosecution Service actually could charge the suspects. If, as some may have been, they were part of an operation focused on attacks outside the UK, they could either be charged with conspiracy to commit terrorist attacks, cause explosions etc. or membership of an illegal organisation. While both could attract lengthy custodial sentences the problem of what to do with them afterwards would remain.

The Article 14 right to enjoy Convention Rights without discrimination is an important one. Surely all should be given access to justice in terms of criminal law regardless of nationality. This right though could pave the way to the Government producing a formula to try the suspected terrorists and then applying it to all of us. That was why Lord Bingham did not rely on Article 14 in his judgement saying “I would not like to give the impression that all that was necessary was to extend the power (of detention) to United Kingdom citizens as well.”  Lord Hope though did comment on the point of discrimination saying that the Home secretary had no right to discriminate on grounds of nationality for purposes other than immigration, invoking art 33 of the UN convention on Refugees 1951 as well as the ECHR.

What is the solution? The first point must be that indefinite detention without trial should not be a solution. Even if the intentions are good and the numbers small, it is unjust and unacceptable in a liberal society.

Having said that, terrorism has always elicited special measures from any state suffering from it. Holding without charge for the purposes of  questioning and gathering evidence (or negotiating deportation with another state) should be possible beyond the normal ninety six hours, in the case of terrorist suspects. However, the period should not be indefinite. If the evidence exists to charge someone for crimes committed in Britain, they should be. In Northern Ireland during the troubles, the notorious Diplock courts banished the jury and replaced them with three judges. As the British people are universally against Al Qaeda style attacks and there is no sectarian divide which could intimidate a jury, there is no reason why indicted terrorist suspects should not face ordinary courts. The Government complains that security service evidence would currently be inadmissible and goes on to ponder that maybe it should be admissible in all cases. This is highly dubious as an objection. Judges already have powers under s79 Police and Criminal Evidence Act to admit evidence to the court even if “improperly obtained” at their discretion. This would cover, for example, evidence from an improperly carried out search of a person or property. Since the security services have widened statutory powers of surveillance, such evidence generally is admissible. Defendants have raised article 8 ECHR right to privacy but this has been overridden by the serious nature of the crime in fraud cases. A terrorist is unlikely to successfully raise such an objection to evidence. Presumably, the Government does not care for courts having discretion in these matters.

If a suspect faces deportation back to a country, which is known to sometimes abuse human rights and does not match British standards of justice, the initial emphasis should be on assessing the quality of evidence against the suspect. The court should determine whether charges could be brought on the strength of evidence in the UK, not what fate might or might not befall them back home. If the court is satisfied the suspect could be extradited, then mutually agreed UN observers could be appointed to observe interrogations before trial. These observers could be unable to speak the same language and/or be from a disinterested, neutral country. Their sole purpose would be to vouch for the physical well-being of suspects, to allow for future extradition agreements. Though many states would resent the “interference” the observers would not be concerned with sentence and might allow for more cooperation in dealing with international terrorists.

Another possibility would be short term internment of suspects without trial during a time when an attack has occurred or the security services or police believe and have evidence that an attack is imminent, and the executive calls a state of emergency on such secret intelligence. The internment could then last for as long as the state of alert and could not exceed, say, three months. As an executive decision, it would be scrutinised by Parliament. I would argue that such measures be restricted to foreign nationals with the three walled incarceration, which exists at present. As to accusations of discrimination, the analogy would be internment of enemy aliens for the duration of a war. When the Government interned Iraqi nationals in 1991, it was a routine, precautionary step that only lasted for the duration of the conflict. It is true that with this proposal the detentions would be more selective but they would at least be limited in time. A brief period of emergency, with time-limited internment organised by the military in many ways is a preferable statutory power than the continued militarization of a defensive police force. Hopefully, no such emergency would ever be called.

Since it was declared, the “War on Terror” has seemed disturbingly permanent, and, worse, likely to lead to a body yet more illiberal law becoming ordinary, rather than extraordinary. As has been widely noted, the War on Terror has fuelled an already extant culture of fear, where everything from strangers to mobile phones, from cigarette smoke to fatty foods are viewed as a threat. Though Blunkett has gone for now we can expect some of his proposals from the “debate” he started this year, to appear in the draft Counter Terrorism Bill. The Queen’s speech did after all, promise us “increased security for all”. The proposals included secret trials, with vetted judges and barristers, no jury and lowered standards of proof to find guilt for terrorist crimes. The proposals now include civil orders regarding a suspect’s (not convicted) behaviour in terms of things like banking. The orders are said by Blunkett to be similar to Anti Social Behaviour Orders, used to deal with minor public disorder, drunkenness and noisy neighbours. The Government has targeted both ends of the criminal spectrum. Whether we are dealing with the yobs down the road or international terrorist networks, the Government has got the answer. Just get the problem out of those awkward court places with their slow processes and dreadful, cumbersome “proved beyond all reasonable doubt” requirements. A bit of arbitrary justice and slap on the wrist is what we need.

By arresting or holding someone, surely the authorities have indicated they have been the subject of observation. Any terrorist associates will surely disassociate themselves rapidly. Therefore, there seems to be little that could be lost and much to gained by putting them before normal courts in the usual way. It would be a triumph for justice in a time of adversity. However, the usual British tendency to opt for secrecy in times of difficulty, regardless of rationale, seems to be taking root again, yet now it is with curious lack of regret.

During the conflict in Northern Ireland, we were told that terrorists were simply a minority of common or garden criminals who were imprisoned for their violent acts regardless of political creed. This led to the hunger strikes of 1981 over prisoner status. Of course Northern Ireland was governed very differently to the rest of the UK and a range of special laws were passed regarding trials and reporting restrictions and much else. However, a sense of civil normality persisted in most of the UK for most of the time and this in itself was viewed as a triumph. New Labour on the other hand, has never missed an opportunity to raise the spectre of political extremism. The laws banning incitement to religious hatred are but a recent example.

Britain will survive the current terrorist threat. It is time the threat, serious though it is, was put in perspective. Britain needs to return to an idea of civil normality. Let those paid to defend us against evil-doers do so. Let the rest of us, beyond a usual vigilance; concern ourselves with liberty vis-à-vis the government. If we keep trial by jury, civil policing, habeas corpus, take back the right to silence without inference of guilt and resist all attempt to lower standards of evidence to establish guilt, we might have liberty people are willing to defend. A terrorist suspect should be tried or, if the evidence is sufficient, extradited. If not he should be released, and if necessary, watched.

It was Palmerston who, as Foreign Secretary, uttered the phrase “civis Britannicus sum”, when he wanted to justify the protection of the British subject abroad, up to and including, the use of the Royal Navy in a little gunboat diplomacy on his behalf. To those who spend any great length of time abroad, passports sometimes seem tyrannous. But nationality can give legal protection abroad stemming from diplomatic relations and norms. These days we are constantly told we are global citizens, and certainly we have international duties. But the law comes from the nation state. Britain cannot be responsible for all of what might happen to a deported person, if the evidence against them suggests they might be guilty of terrorism. Even if they are fighting a state whose government we might not mind being toppled, asylum might not help change. The Eastern block, which forbad defections, eventually crumbled.  The counter measures threaten to either alienate the British people further from the Government or the Government from allies in fighting terrorism. Human rights are often vague yet inclusive, therefore ideal as a legal-political concept in the age of Blair. Academics talk of a return to Medieval concepts of “natural law”. Before the Civil War, courts could in theory strike down law that was “unnatural” in the sight of the Christian God and His law. For those of us who want to see a free Britain, outside the E.U, confident and representing something in the World, the Human Rights Act is not a fatal stumbling block as it does not bind Parliament to an external corpus of law as the E.U does. It is rather, a woolly set of things the state really ought not do and represents well-meaning though backwards-looking attempts to limit its scope. Yet a case against human rights can be made.

Firstly, let’s look at the shelved fox hunting bill. The courts may take some time in deciding whether a ban would infringe human rights to enjoy property. Personally, I do not support the proposed ban, as I simply think there should be fewer curbs on individual freedom, not more. To that end it is good to see such proposals frustrated and the enemy of my enemy is my friend. However, there is something disturbing about Parliament’s refusal to regulate or end a sport that evolves around pest control, without permission from the court. Again, our law-makers are pleading their hands are bound, over a matter that only a few really care about. So, the easy way out is to reverse the normal law-making process and get the judiciary to rule on the proposed law rather than  the judiciary interpreting one on the statute books. Though many are cynical about politicians today, such pathetic inaction in the face of mild controversy will not persuade people to engage in public life or use their vote. If fox hunting is a human rights issue then so is cock fighting and bear baiting. The issue diminishes the term Human Rights. Incidentally, a pub or a restaurant is still private property, albeit licensed for special business purposes. What of the owner’s right to decide on smoking policy in his own property? While again, I oppose the ban and the arguments for property rights are strong, English law has always been honest enough to recognise they are not absolute. Try pleading human rights next time they want to build a motorway and your house happens to be in the way.

Secondly, the continuous rise of human rights as a concept in international law means that even trade missions are subject to approval or disapproval by human rights groups. Mr Blair, showing he is still the clever lawyer, perversely justified the war in Iraq by saying that the only alternative was sanctions, which were needlessly killing thousands ( UNICEF put the number of increased child deaths under the sanctions regime at half a million by the end of the 1990s. Iraq was also bombed almost continually from 1991 to 2003). He was right about needless deaths but not the “only alternative to war” part. But Blair has always given us simple choices. Apart from trade in armaments, trade was always justified as increasing wealth, fostering relations and creating a more liberal governing class in countries lacking in political development. Now there is a consensus between governments and human rights groups that certain regimes be given pariah status of which, bombed, impoverished and invaded Iraq was an example par excellence. Evidence of the success of this policy is wanting.

Thirdly, human rights, like socialism, nationalism or any other political movement, must be judged by results not ideals and, if necessary, rejected. Attached to woolly inclusiveness or not, human rights have served to justify a bloody set of international interventions. They have not noticeably advanced the cause of freedom in this country. The concept of privacy could further protect the rich from scrutiny. Human rights have allowed legal limbos to be justified in the case of terrorist suspects. They could create a Trojan horse by which civil rights are eroded, first for non-nationals, then for British citizens. Corpus Jurus may well be part of the plan. But to give it its dues, this government is statist and dismissive of individual liberty when put to the test; be it for the E.U. or the “War on terror”. It is time for our leaders to stop hiding behind the robes of judges and say what they believe. What sort of Britain do we want to live in? One governed by an intellectually bankrupt elite enthralled to a truly corrupt embryonic super-state, which offers petty bans and serious assaults on legal rights? Or a strong, independent Britain, possessive of its liberty, which has a healthy sense of enlightened self-interest; not moronic, messianic plans to rid the world of poverty, crime and terror in one fell swoop and all underwritten by fear.