of lords reveal the latent discrimination on grounds of
nationality in UK
The British government opted out of part
of the European Convention on Human Rights concerning
the right to a fair trial in order to bring in anti-terrorism
legislation, Terrorism Act 2000 in response to the 11
September attacks in the US. Any foreign national suspected
of links with terrorism can be detained or can opt to
be deported. But those detained cannot be deported if
this would mean persecution in their homeland.
a blow to the government's anti-terror measures, the House
of Lords ruled by an eight to one majority in favour of
appeals by nine detainees ruling that the measure breaks
human rights law. The detainees took their case to the
House of Lords after the Court of Appeal backed the Home
Office's powers to hold them without limit or charge.
The law lords said that the rules were
incompatible with the European Convention on Human Rights
as they allowed detentions "in a way that discriminates
on the ground of nationality or immigration status"
by justifying detention without trial for foreign suspects,
but not Britons. "Indefinite imprisonment without
charge or trial is anathema in any country which observes
the rule of law. "It deprives the detained person
of the protection a criminal trial is intended to afford."
The case was heard by a panel of nine
law lords rather than the usual five because of the constitutional
importance of the case.
The special immigration appeals commission
SIAC ruled on 30 July, 2002 that the anti-terror act unjustifiably
discriminated against foreign nationals as British people
could not be held in the same way. But that ruling was
later overturned by the Court of Appeal who said there
was a state of emergency threatening the life of the nation.
are the terror detainees?
There is not a lot of information available about the
men at the centre of the UK government's anti-terror detentions
- but they do share some key characteristics.
All of them were foreign nationals, none
of them were being held under criminal charge pending
trial - and none of them could be deported because lawyers
believed they would face persecution in their home countries.
Of 544 people arrested under anti-terror legislation between
September 2001 and January 2004, only 98 were charged
and six convicted, committee chairman Jean Corston MP
However here are brief profiles of two
of the six suspects involved in the legal battle against
A is an Algerian man who came to the UK
in July 1989. The Home Office deported him as an overstayer
to Sweden. He returned, claimed asylum, but was rejected.
He was detained under special powers in December 2001.
The Home Secretary said this man actively supported GSPC,
an Algerian group said to have terrorist intentions. Suspect
A "broadly supported" the aims of Osama Bin
Laden and al-Qaeda. He allegedly used credit card fraud
to raise funds for the organisation he supported. The
government also claims A was associated with a terrorism
suspect who was later apprehended at Heathrow.
E is Tunisian and claimed asylum after
coming to the UK. He waited six years for a decision,
was rejected but then told he could stay until 2005. The
home secretary detained E in December 2001, saying: "You
are an active supporter of the Tunisian Fighting Group,
a terrorist organisation with close links to al-Qaeda.
You have provided direct assistance to a number of active
terrorists." At his original case hearings, the authorities
were challenged as to whether the group indeed existed.
E also alleged that evidence against him was unreliable
because it was obtained by torture of others abroad. The
court however ruled in favour of the home secretary, although
its full reasons remain secret.
At the moment, two out of the 6 appellants
are held at Broadmoor secure hospital because they have
become mentally ill due to the torture.
Fate of the detainees
The pressing question then is what happens to the detainees
One of the detainees has already been
released and is subject to a form of house arrest. It
is possible that a similar procedure could be followed
with those considered too dangerous to free unconditionally.
But that, too, is bound to provoke a legal
challenge. There may be renewed efforts to find countries,
which might take those suspects who refuse to return to
their homelands for fear of torture or death.
But that may be a forlorn hope. For the
UK government, it is a major headache, which must be addressed
Ministers have been braced for this defeat
since hearings were held before the lords in October.
Even, Attorney General Lord Goldsmith, who presented the
government's case, was privately gloomy about the prospects
of success, knowing that a law that discriminates against
foreign-born detainees strikes at the heart of ancient
legal safeguards against arbitrary arrest.
So, what now? In the United States, a
ruling of similar magnitude by the Supreme Court meant
automatically that Guantanamo captives could challenge
their detention in the courts.
But the House of Lords does not have primacy
over the executive and the government must now decide
if it wishes to take its case to parliament for a second
time.The alternative is to frame new legislation, which
would put foreign-born suspects on exactly the same footing
as British citizens and allow them to be tried on terror
to fight terrorism in a democracy under the rule of law?
The UK had to grapple with that problem during 40 years
of IRA terrorism and is now having to confront it again
in the face of the threat from Islamic fundamentalists.
The Anti-Terrorism, Crime and Security Act give the home
secretary the power to detain foreign nationals who are
thought to be a potential danger to the UK, but who cannot
be deported because they face persecution in their own
countries and no other country will take them.
They are held because the intelligence
services, MI5 and MI6, have information about them, which
gives rise to suspicion that they are linked to international
But in the case of the 12 individuals
still being detained under this Act, there is either not
enough evidence to charge them or the information about
them comes from sources, which the government does want
to be exposed in court.
So what to do with them?
The answer from the Home Office has been an extraordinary
legal forum called the Special Immigration Appeals Commission.
Three High Court judges decided that the
home secretary is right to order the detention of these
individuals. It is extraordinary because the men do not
know what information is held about them. Nor are their
lawyers allowed to know.
The information is given to a trusted
special advocate who represents each man. Most of the
hearings are in private with the decision taken by the
They could, of course, walk out of prison
tomorrow but would have to agree to be deported to a country
prepared to take them.
Instead, they have decided to fight the
whole process and the decision to free one of the suspects
has been a significant setback for the Home Office.
The key point was the indefinite nature
of the detention and is similar to the criticism of the
regime imposed by the Americans on detainees in Guantanamo
Ex-Home Secretary David Blunkett planned
to amend the law so that he can appeal to a higher court
against SIAC decisions over bail but he has been fiercely
attacked by lawyers and human rights groups for abandoning
the very legal safeguards which distinguish democracy
from totalitarian intolerance.
The emergency powers were introduced in 2001 after the
11 September attacks.
Thirteen foreign terror suspects are currently
being held without trial at London's Belmarsh jail. The
government had to "derogate" (opt-out) of the
European Convention on Human Rights in order to pass the
emergency detention measures. But to continue to do so
in the long-term risks "corroding the culture of
respect for human rights," the committee warns.
It proposes tougher rules covering both
foreign and domestic terror suspects, as an alternative
to indefinite detention.
- The use of phone taps as evidence in court
- Intensive surveillance of terror suspects after release
- The introduction of security-cleared prosecutors who
would be able to view material from intelligence sources
- New "civil restriction orders" - such as curfews
or tagging - to limit the activities of people thought
to be linked to terrorism, but not themselves considered
Lib Dem peer Lord Lester, who is a member
of the committee, said: "We are saying that indefinite
detention without trial is, in Winston Churchill's famous
phrase, in the 'utmost degree odious' and that alternative
means need to be found." The report also warns of
the "disproportionate impact of the use of the Terrorism
Act powers on the Muslim community". And it warns
against the use of evidence in trials obtained by torture
in other countries.
The new law would apply to "everybody
irrespective of nationality," Blunkett said.
A spokesman for civil rights group Liberty
said, "The Americans have begun to realise that they
cannot hold the Guantanamo detainees indefinitely. "Surely
the British Government can also realise that they must
release the detainees they hold, or put them on trial?"
In effect the 'terror detention law' must
author is studying Law at Kings College, London, UK.