Since 2001, Britain has been detaining foreign nationals it suspects of involvement in terrorism in prison. These people have had no charges brought against them nor are they told what evidence the government holds. During that time, lawyers and organisations like Liberty have campaigned for them to be charged or released. At the end of 2004 that campaign reached the Lords.

On 16 December the House of Lords delivered its decision in what has become the most important constitutional case for the last 60 years. By a majority of eight to one, the Law Lords ruled that indefinite detention of foreign nationals without trial under the Anti-Terrorism Crime and Security Act 2001 was contrary to their fundamental right to liberty and was out of all proportion to the terrorist attacks of September 11 — a response made all the more repugnant because the law only applied to foreign nationals. Despite this indictment, the government has refused to release those detained.

The Anti-Terrorism Crime and Security Act 2001 authorises the indefinite detention of foreign nationals without trial, if the Home Secretary reasonably suspects that a person is an international terrorist or has links with international terrorism. According to normal principles of British criminal justice, ‘reasonable suspicion’ is only the basis for initial arrest for a short number of days up to the charging of a suspect, yet under this Act it has become the foundation for a potential lifetime of incarceration.

Indefinite detention without trial runs roughshod over the right to liberty — an ancient right dating back to the Magna Carta centuries before it was enshrined in Article five of the European Convention on Human Rights. Consequently, before the men could be detained, the government had to opt out of the right to liberty, barely a year after its heralded Human Rights Act 1998 came into force. In order to comply with the rules on opting out, the government had to declare a state of emergency which threatened the life of the nation. In November 2001, David Blunkett declared only a ‘technical’ state of emergency. Yet three years later, the distinction between what is normal and what is an emergency has collapsed and we now live in a permanent state of emergency.
Last year the Attorney General, Lord Goldsmith, gave a speech to the International Criminal Law Association in which he criticised the US military tribunals proposed for Guantanamo Bay. There are certain principles on which there can be ‘no compromise’, he said, including fair trial, and the proposed tribunals do not offer ‘sufficient guarantees of a fair trial in accordance with international standards’. However, in the same speech Lord Goldsmith defended the British government’s policy of indefinite detention without trial of foreign nationals.

The detainees, the government says, are not detained indefinitely — they are free to leave Britain and return to their home countries. But they cannot return for fear of being tortured or put to death. Indeed the government cannot deport the detainees without breaching its other human rights obligations, as it cannot deport people if they face torture or death. One difference between Guantanamo Bay and Belmarsh is that the detainees in Belmarsh have not been questioned about their supposed terrorist links. It is surprising that the government has not seized the opportunity to gather what information it can from the detainees, given its eagerness to use such draconian measures as indefinite detention without trial in its role in the global war on terror.
The seemingly endless detention is damaging the health of the detainees and their families. The wife of one of those detained is clinically depressed. His children are still traumatised by the dawn raid in December 2001, when they were woken to see their father dragged off to prison. His youngest son, born after he was in custody, does not know his father. The detainee’s own mental health is precarious.

On 26 January Charles Clarke chose to respond to the House of Lords ruling by raising the spectre of deportation. He also stated his intention to bring in Control Orders, whereby those suspected of terrorism could be detained in their homes instead of in prison. Two days later he admitted this could mean even the relatives of those suspected could face serious restrictions because they share a residence; in a country of suspects not citizens, even the children will not be presumed innocent.

Liberty is campaigning to ensure Britain’s anti-terror legislation fully complies with human rights principles. Liberty believes that in a democracy, prosecuting suspects should not be a preferred option. It should be the only option when individuals face losing their liberty. Indefinite detention without trial is always wrong; the government needs to think again.

Shami Chakrabarti is the director of Liberty.