Shami Chakrabarti | ukwatch.net

The Crazy Politics of 42 days

Ellie Keen — Sat, 07 Jun 2008 17:33:32 +0000

Who would be a Labour MP this week? After brutal whipping and endless spin about “toughing it out” while “offering concessions”, it still boils down to this. Is it right, or necessary, or productive to our safety, to detain a suspected person for six weeks without charge – without knowing what they are accused of?

Some view this as a trial of political machismo. Liberty does not. Political parties play a part in democracy, but I respect the conscience, courage and conviction of individual parliamentarians more. I will always regret the crazy politics that “42 days” has become and our inability – despite endless efforts – to persuade the Brown government towards a break with the recent past.

Liberty colleagues have had discussions with Labour MPs who have been thoughtful in their engagement. My confidence is such that I believe on a free vote in the Commons, the 42-day measure would be easily defeated. But at the fag end of the misnamed, misjudged “war on terror”, abortion time limits are left to the conscience and detention time limits are not. The margin will be tight.

Some MPs have expressed fears that this issue might become a running sore for their party. As Europe split the Conservatives in the 1990s, so civil liberties might create a fault line through Labour. Government admissions that there is no need for an extension have left many angry about being forced to revisit this issue so soon after the vote in 2005.

In democracies where people are presumed innocent, we arrest on suspicion, charge with evidence and convict after proof. These principles were built on centuries of struggle. Even this tradition risks hundreds or thousands of people being plucked from their beds and detained under terror laws. A smaller number will be charged with something, and some eventually convicted.

Humans – including policemen – are imperfect. Hence the age-old wisdom of prompt charging following arrest, so even the most heinous murders must result in charge within four days. Hence the one-day limit in Canada, two in the US, and periods of a week or less all over the free world. Ministers have been quick to try to rubbish my organisation’s extensive research into comparisons but have produced none of their own. The Council of Europe’s commissioner for human rights, Thomas Hammarberg, is in no doubt where the UK stands. He says the “British government’s suggestion to allow terrorism suspects to be detained for 42 days without charge would be way out of line with equivalent detention limits elsewhere in Europe”.

After charge, innocents may still be held for months pending trial for a complex conspiracy, but at least they know why. At least they and their family and lawyers can prepare a defence in the hope of vindication in court. Contrast the nightmare of a thousand hours in custody followed by unceremonious release back into the community. How will that help social cohesion and national unity? Ministers claim to have consulted “senior Muslims”. My concern is with the junior ones who become alienated and radicalised.

The security minister Admiral Lord West was both provocative and practical when he said people should “snitch” on those they suspect of involvement in terrorist activity. How much intelligence might be lost in the anxiety that providing information risks an innocent neighbour disappearing for six weeks? I debated this on the radio with a government loyalist. “Six weeks’ detention is not so long,” he said, “a school holiday”. Before I could react, the Irish-born broadcaster cut in: “I was detained under the Prevention of Terrorism Act.” It clearly hadn’t felt like a holiday to him.

So, on the government’s own case, there is no need for this power; but they wheel out selected policemen who say there may be a need one day. They are slow to explore a range of less sexy alternatives to the constant escalation of the detention arms race.

Serving police officers have also told Liberty of their opposition to the government’s plans. But most fear recrimination if they go public. The former chief constable of the West Midlands, Lord Dear, is no stranger to terrorist threats. He was personally targeted by the IRA and yet calls extended detention a “propaganda coup for al-Qaida”. In his experience the “best course for a terrorist was to provoke a government to overreact to a threat by eroding civil liberties, increasing executive powers and diminishing due process by the denial of justice”.

One week from the vote, we are told ministers can have their authoritarian cake and eat it with sugar-free “concessions”. The home secretary even says her last-minute amendments transform the 42-day power into a liberal enhancement of existing emergency powers. The joint parliamentary committee on human rights disagrees: “The safeguards in the bill, even after the potential government amendments, are inadequate to protect individuals against the risk of arbitrary detention.”

Confidence tricks catch only those unwilling to look beyond the smoke and mirrors. First, the “grave and exceptional terror threat” is broad enough to catch any suspected terror plot anywhere in the world, rather than a genuine emergency in Britain.

Second, the threat is a phrase for a statement to the Commons, not a legal precondition for detention. That means that the power to extend detention is still triggered by individual cases rather than general emergencies. Parliament becomes a farcical star chamber charged with discussing individual cases without prejudicing potential trials.

Finally, there is no judicial review of the decision to turn on the power. The only role left to a judge would be to authorise detention week on week without evidence or charges to examine.

On morning radio Jacqui Smith asked for our trust. Since when was trust in today’s home secretary a basis for suspending the rule of law? It is part of her job to plan for horrific scenarios. It is the job of her parliamentary colleagues to consider her proposals in future home secretaries’ hands. This is not a vote of confidence in this government, but about confidence in parliament’s ability to hold all governments to account.

Who would be a Labour MP next week? Vote against this posture and face the whips in the morning. Or vote for it and face your grandchildren forever.

Shami Chakrabarti is director of Liberty

So Much for Habeas Corpus

Ellie Keen — Thu, 24 Jan 2008 22:42:18 +0000

Despite widespread concerns and a myriad of reasonable alternatives, the government is pushing ahead with controversial plans to extend pre-charge detention from 28 to 42 days. When will it wake up to the desperate counter-productivity of lengthy detention without charge? There is no point talking about “hearts and minds” at home and democratic values abroad, if you are hell-bent on trashing centuries of British justice.

Let me be completely clear. Liberty opposes any extension of pre-charge detention beyond what already constitutes the longest period in any comparable democracy. The nightmare scenario of police overwhelmed by multiple terror plots, often drawn upon by government ministers, has been used as justification for extension.

However, the government already has legislation in place that can deal with such an emergency: the Civil Contingencies Act (CCA), placed on the statute book only four years ago. The government’s proposals today offer none of the safeguards in the CCA and frankly disappoint in terms of when the powers can be triggered, the role of Parliament and judicial oversight.

The government’s references to extending pre-charge detention use the language of “exceptional” and “reserve power”, but the reality is that the home secretary can activate these powers at any time. There is no need for a public emergency of the type envisaged in the nightmare scenario – indeed, an individual case can be trigger enough.

The new proposals are meant to include parliamentary safeguards, but the home secretary only has to inform Parliament that she has triggered the 42-day limit. Parliament will only be allowed a vote up to 30 days later – and then only if the government is seeking to renew for yet another 30 days. By this time, suspects could have already been held for six weeks. Further, the decision to trigger the 42-day limit cannot be challenged, even if used unlawfully, and the power could not be struck down – does this constitute judicial scrutiny?

Let there be no confusion. Despite flimsy promises of exceptional circumstances and so-called safeguards, the reality of this bill is an on-off button for six-week detention without charge.

The government rightly talks about winning hearts and minds in the struggle against terrorism. This re-heated old policy is not going to do it.

Asylum Promises

Alex Doherty — Wed, 11 Jan 2006 14:03:49 +0000

David Camerons predecessor as Conservative party leader, Michael Howard, is unlikely to be remembered by many for any sympathy towards asylum seekers. Nonetheless, there is a particular moment in our recent history that ought now to be savoured, if only for its irony.

In November 2003 Gaby Hinsliff wrote in the Observer under the headline Asylum children may be forced into care. She described how new government plans would present failed asylum seekers with a stark choice: take a voluntary flight to their native country, paid for by the state, or lose all benefits in the UK and have their children taken. The following week in parliament, Michael Howards response to the Queens Speech contained the passionate plea that ...this time theyve gone further than any civilised government should go. Earlier this week we read in our newspapers that the government proposes to use the children of asylum seekers as pawns to cover up their failures to get a grip on their asylum chaos.

Sadly, Howards subsequent promise that Conservatives would vote against such an illiberal measure were not to be borne out in the parliamentary session to come. It may have been that they anticipated a new statutory power for social services to take the children of failed asylum seekers. Perhaps the Conservatives would have joined a coalition to defeat such a measure.

However, such an explicit provision proved unnecessary, existing child protection legislation being sufficient to enable the taking of children facing destitution and starvation.

Instead, what became section nine of the Immigration and Asylum Act 2004 simply allows for failed asylum seekers, and for the first time, those with children, to be denied support as a cowardly and cruel alternative to forced removal.

Some may argue that such a policy of encouraging voluntary departure is somehow more humane than the forced removal of families with children. Those of that view should perhaps imagine trying to explain it to a small child taken from parents who (rightly or wrongly), see the trauma of separation as more in a childs interests than a return to whatever awaits in the country they fled. Better still, they should imagine giving such explanation to a small child of their own.

An alternative basis for the policy may lie in the way in which families facing deportation often arouse the sympathy of even the most apparently xenophobic local communities. There is perhaps nothing which connects any of us to the rest of humanity more than our children. This is as true of migrants as it is of anyone else.

Once children attend school and play with other kids, the despised statistic acquires a human face. A few extra children taken into the custody of social workers may be politically more palatable than the spectacle of families being dragged off by immigration officers and the police.

In the longer term, an effective destitution policy will surely lead to begging, crime and prostitution on the part of its targets, activities which are likely to increase sympathy for the authorities rather than the vulnerable people themselves. So by a cruel and pragmatic genius, social workers become immigration officers and children, to echo Howard, become pawns.

Previous attempts to use forced destitution as a lever for asylum control have ultimately foundered in the higher courts. Both Howard and David Blunkett have attempted such inhumane policies, only to be tripped up by the men in wigs.

Wouldnt it be wonderful for our politics and civil society if common decency werent left to the judges this time round?

What about the new leader of the Opposition? Heres a thought for Camerons policy review. What would give more substance to compassionate Conservatism than finally to honour Howards surprising promise of 2003?

Shami Chakrabarti is head of Liberty

A Snapshot of Asbomania

Thu, 09 Jun 2005 17:47:48 +0000

The introduction to yesterday’s report into the state of human rights in the United Kingdom had a familiar ring. The sentiments expressed by the report’s author Alvaro Gil-Robles, the Council of Europe’s human rights commissioner, could just as easily have come from any number of speeches by the prime minister and other senior government figures in the heady days of 1997, when “bringing rights home” was the order of the day and the Human Rights Act was to be the catalyst for building a “culture of rights” across the land.

In such inspirational times it was easy to airbrush history and ignore the murkier aspects of our human rights past, especially relating to Britain’s colonial and post-colonial experience. None the less, the 1997 rhetoric employed the right sentiment at the right time in the interests of the right cause – the successful passage of what was to become the Human Rights Act 1998, which shines out from underneath a mountain of knee-jerk statutory graffiti as the proudest constitutional legacy of the present government.

If only human rights protection were a simple matter of human rights policy, this story, like the commissioner’s report, could end there and happily. Of course, a country’s record in this vital area is at least as much about how it responds to the tough stuff that resides in interior or home affairs policy. But here lies the rub. Gil-Robles’s report goes on:

“I was struck … by the frequency with which I heard calls for the need to rebalance rights protection, which it was argued, had shifted too far in favour of the individual to the detriment of the community. Criminal justice, asylum and the prevention of terrorism have been particular targets of such rhetoric, and a series of measures have been introduced in respect of them which … occasionally overstep this mark.”

I respectfully agree with his profound concern about the way in which the universal postwar human rights consensus has been repeatedly misrepresented or openly attacked in furtherance of any anti-terror, antisocial behaviour or asylum “policy” drafted on a beer mat by an enthusiastic special adviser of the day.

The negative political rhetoric matters, not just because of the indivisible nature of government comment and policy, but because of the lead that it gives to a media and wider public still relatively unfamiliar with the way in which the rights framework contains its own tried and tested mechanisms for providing balance and protection for competing individual, family, group and societal interests. To set human rights up against wider democratic good is inevitably to set them up for a fall, and to ignore the simple reality that a democracy without profound respect for individual rights and freedoms will quickly descend into little more than mob rule.

The commissioner goes on to warn that anti-terror control orders flout the presumption of innocence and are, in certain cases, likely to constitute punishments without trial. Like Liberty, he does not rule out some restrictions on a suspect’s liberty on a preventive basis for a limited period pending the bringing of proper and recognisable criminal charges. Further, he is right to condemn the admissibility of material gained by torture in British courts – a particularly distasteful element of both Belmarsh and control order regimes.

Every Labour member of parliament – old or new, inside government or not – should be particularly embarrassed by the ever-increasing firmness of Conservative and Liberal Democrat opposition to this policy. The next home secretary who inherits this embarrassment must find a way to dismantle it without delay.

Equally important, however, is the commissioner’s piercing critique of “asbomania” and the over-criminalisation of Britain’s youth. Like Liberty, he can conceive of a limited appropriate use of prohibitive orders to deal with criminality. But he fears the over-broad definition of antisocial behaviour, the fast-track to overcrowded prisons that Asbos have become and the vile and dangerous “naming and shaming” of youngsters in particular.

There are many sobering comments in this snapshot of Britain at the start of the 21st century. It is essential reading for politicians of all three main parties as the new round of legislation begins. Why was it necessary for a Council of Europe commissioner to tell a Labour government that forcing asylum seekers into destitution might be regarded as “inhumane”? These are good times for listening and reflecting on our hopes for the progressive consensus.

Anti-Terror Laws

Alex Doherty — Wed, 16 Feb 2005 11:59:45 +0000

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 governments 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 detainees 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 Britains 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.