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Analysis: What now
for detainees?
Nine Law Lords have ruled that the government's detention of terror
suspects without trial breaches human rights laws.
Ministers have been braced for this defeat since hearings were held
before the lords in October. The decision is an unwelcome present
for Charles Clarke.
Attorney General Lord Goldsmith, who presented the government's
case, was privately gloomy about the prospects of success, knowing
that a law which discriminates against foreign-born detainees
strikes at the heart of ancient legal safeguards against arbitrary
arrest.
Lord Goldsmith's argument had two limbs. That the nature of the
terrorist threat post-11 September was so severe as to justify
exceptional measures, such as opting out of Article 5 of the
European Human Rights Convention.
And that the Anti-Terrorism, Crime and Security Act 2001 provided
processes for reviewing the legality of detentions without trial.
In the event, the Court of Appeal concluded that the legislation was
lawful. But crucially, the highest court has not - and it is one of
its most significant judgments of recent times.
Terror courts?
So, what now? In the United States, a ruling of similar magnitude by
the Supreme Court meant automatically that Guantanamo captives can
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 charges.
Outgoing Home Secretary David Blunkett - replaced by Charles Clarke
a day before the lords' ruling - had been planning new laws to
permit the use of phone-tap evidence in trials and to set up special
anti-terror courts without juries and with the participation of
lawyers who have security clearance.
Such a controversial measure would have to await the election and,
even then, it would probably have a stormy passage through
parliament.
Fear of torture
The pressing question then is what happens to the detainees in
Belmarsh?
One 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
government, it is a major headache which must be addressed urgently.
Cynics will suspect that Mr Blunkett decided to step down on
Wednesday knowing that he had been defeated on a crucial plank of
policy. And that would have been one setback too many to recover
from.
Source: BBC News
16 December 2004
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