This got long. Oh well, it's comprehensive.
I'm just reading the detailed report produced by the Lords of Appeal in reference to the Foreign Nationals detained indefinately without charge. It is comprehensive, and references a large number of other cases both domestic and foreign in both national and international law.
The case hinges around section 5 of the Human Rights Act. Section 5 is "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:(f) the lawful arrest or detention of ….. a person against whom action is being taken with a view to deportation …..”"
Such detention is of indefinate duration while deportation proceedings are being carried out. Now section 3 of the same act prohibits "Torture or Inhumane Treatment" and is interpretted as being applicable to prevent deportantion of an individual to a regime where such practises are widely used.
However the indefinate detention of section 5 while deportation is attempted may not be used in conjunction with section 3 where the deportation process is halted to produce indefinate detention of an individual who the Home Secretary wishes to deport but can't. This was the ruling from 1996.
The Terrorism Bill worked by removing (derogating) the UK from several of the terms of the Human Rights Act specifically section 5, regarding detention, removing the requirement, and allowing indefinate detention. However, it is not true indefinate detention because this derogation is only allowed in emergency circumstances, and for as long as the emergency lasts. It requires a "public emergency threatening the life of the nation", as defined by the Greek case.
“153. Such a public emergency may then be seen to have, in
particular, the following characteristics:
(1) It must be actual or imminent.
(2) Its effects must involve the whole nation.
(3) The continuance of the organised life of the community
must be threatened.
(4) The crisis or danger must be exceptional, in that the
normal measures or restrictions, permitted by the
Convention for the maintenance of public safety, health
and order, are plainly inadequate.”
The accused claimed that no public emergency exists, and as such the derogation is not applicable. Paragraph 20 is the lynchpin of the case, if you wish to read it in full.
"20. [...] they argued that there had been no public emergency threatening the life of the British nation, for three main reasons: if the emergency was not (as in all the decided cases) actual, it must be shown to be imminent, which could not be shown here; the emergency must be of a temporary nature, which again could not be shown here; and the practice of other states, none of which had derogated from the European Convention, strongly suggested that there was no public emergency calling for derogation. [...]."
They quoted various government ministers to the extent that there is no specific threat to the United Kingdom. In addition the Council of Europe has declared that it's members should not derogate because there is no emergency that requires it.
The Attorney General refuted these points, claiming that the UK did not have to wait for a threat to take action against it given that Al-Qaeda were issueing threats to the UK, felt that an artificial limit to the emergancy would be unnacceptable and noted that the Irish emergency went on for many years. "Little help, it was suggested, could be gained by looking at the practice of other states."
"Insofar as any difference of practice as between the United Kingdom and other Council of Europe members called for justification, it could be found in this country’s prominent role as an enemy of Al-Qaeda and an ally of the United States."
So the government is admitting that our actions as an ally of the US have led to us becoming a target. I'm sure I heard a minister refuting this at some point in the past on some debate or other. I'll look it up later.
"Secondly, he submitted that the judgment on this question [State of Emergency] was pre-eminently one within the discretionary area of judgment reserved to the Secretary of State and his colleagues, exercising their judgment with the benefit of official advice, and to Parliament."
Which is a polite way of saying that the government does not recognise the legitimacy of this court on this issue. Now where have I heard that before?
LORD BINGHAM OF CORNHILL felt that SIAC were perfectly correct to declare a state of emergency given that they had greater access to intelligence, that from the evidence he had there was a state of emergency and that the courts should in most cases give great weight to the views of politicians who make these decisions. However, he still found in favour of the appeal.
Curiously his deliberations take up 48 pages of the 102 page document, probably because his judgement was first and had to define terms I have only read the first 28 pages or so and then decided to skip to the next Lord. The last judgement, by comparison, is a single paragraph.
The second Lord (LORD NICHOLLS OF BIRKENHEAD) felt that the weakness in the governments case revolved around the differential treatment given to non-nationals as against nationals. Specifically that nations could not be subject to detention indefinately without trial, given the number of British Citizens held abroad as terror suspects.
The third Lord (LORD HOFFMANN) decided that the threat did not threaten the life of the nation, that this country has survived Hitler and could take a little loss of life without problem. "Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda." He accepted a weaker country may need to react differently to the same threat. WTF? He declined to comment on the idea that only targetting foreign nationals was illegal because he didn't want the government to extend that power to everyone instead.
LORD HOPE OF CRAIGHEAD agreed with Lord Bingham on all points. LORD SCOTT OF FOSCOTE likewise concurred.
LORD RODGER OF EARLSFERRY pointed out that the Home Secretary, in targetting only foreign nationals, was satisfied that the British Security were adequate for preventing British equivelents from carrying out terrorist activities, and why could they not handle the foreign nationals with the same powers? He agreed with the first lord.
LORD WALKER OF GESTINGTHORPE ("Whether or not patriotism is the last refuge of the scoundrel, national security can be the last refuge of the tyrant.") is the Lord who was moved to dismiss the appeals, treating the limited number of detainees as evidence of discretion on the part of the Home Secretary not, as Liberty had claimed, that there was no emergency of a scale that warrented these powers. He accepted that SIAC were righ to declare an emergency.
BARONESS HALE OF RICHMOND (the only women on the panel) agreed in full with the opinions of the other agreeing Lords and focused more on the discimination aspect of the case.
LORD CARSWELL gave a one paragraph answer in agreement with the other Lords. I will not comment further since writing a paragraph longer than his would be silly in the extreme.