16 March 2005 Edition
New British 'house arrest' law akin to Apartheid South Africa
BY FERN LANE
The British government's plans to place those they suspect of 'terrorist' activities or sympathies under house arrest through the use of so-called control orders was finally passed by the House of Lords last Friday afternoon, but not before it had been forced to engage in an epic, week long battle. This culminated in a 32-hour single-sitting confrontation with British peers in the House of Lords, who refused to approve the legislation until concessions had been made.
However, they ultimately failed to reign in the government; opposition in the Lords finally collapsed when Home Secretary Charles Clarke announced a minor concession. The legislation concerning control orders, he said, will now be reviewed, with the possibility of amendment or even repeal, early next year, when yet another terrorism bill will be made available for scrutiny before being made law.
The new terrorism bill, which follows directly on from the Terrorism Act 2000 — which itself strengthened and made permanent the already draconian 20-year-old 'emergency' legislation, the PTA — and the Anti-Terrorism Act 2001, has been met with vocal opposition from human rights organisations across the board at every stage of its tortuous progress through the Houses of Parliament.
It was heavily criticised by Parliament's own joint committee on human rights, which declared there was "no justification" for the powers of house arrest. Amnesty International called it "just plain wrong" and Human Rights Watch condemned the control orders as "a form of human rights abuse more often associated with apartheid South Africa and the military dictatorship in Burma than liberal democracies".
At the heart of the controversy was the government's desire to be able to place individuals under house arrest at the discretion of the Home Secretary alone. There was to be no judicial involvement in this process and no requirement for evidence to support the decision to be provided.
In the face of mounting opposition, including from its own back benches, the government agreed to the involvement of a judge. Control orders would be referred for approval to a judge a maximum of seven days after being issued by the Home Secretary.
The saga of the current terrorism bill really began on 16 December last year, when the Law Lords ruled that the detention of foreign nationals on suspicion of terrorism under the Anti-Terrorism Act 2001 was unlawful because it was discriminatory. Specifically, this meant that ten men being held without charge or prospect of trial by the British government in Belmarsh Prison and Broadmoor secure psychiatric hospital were being detained illegally.
Whilst not binding on the government, the Law Lords' strongly worded ruling caused such deep embarrassment to the government that it could not simply ignore it: "The real threat to the life of the nation comes not from terrorism, but from laws such as these," said the ruling. "It calls into question the very existence of an ancient liberty of which this country has, until now, been very proud - freedom from arbitrary arrest and detention."
A further complication was that part of the Anti-Terrorism Act under which the ten men had been originally imprisoned — the clause which expressly permitted detention without trial — was in any case up for renewal in March 2005 and, with it being declared illegal by the Law Lords, the government would be virtually obliged to release them, causing even more embarrassment.
Despite the Law Lords' warning to the contrary, the government responded with new, even harsher legislation — the current bill — which actually widened the existing law to include British citizens (meaning it was no longer discriminatory) and to introduce the now notorious Control Orders.
Thus the scene was set for the unseemly game of legislative ping-pong last week, when the bill went back and forth between the House of Commons and the Lords, all for what many believe is a grossly exaggerated threat. Writing in The Observer, Jason Burke, an al-Qaeda expert, said: "There are no '200 Osama bin Laden trained volunteers' stalking our streets as is claimed by our government. Nor are there al-Qaeda networks 'spawning and festering' across the country. Nor are Islamic militants cooking up biological or chemical weapons... We are yet to have an intelligent debate about the terror threat and about what sacrifices of civil liberties and quality of life we in the UK are prepared to make to counter it."
Late on Friday, the remaining eight of the ten men being held — two had been bailed earlier — were released under conditions which in practice amount to house arrest, prior to the issuing of Control Orders by the Home Secretary when the bill becomes law. They are under night-time curfew, are tagged and will not be allowed to meet anyone without obtaining prior permission from the Home Secretary.
Meanwhile, in the north of Ireland, those who have been subjected to the vicissitudes of the British judicial system could be forgiven for viewing the controversy in a state of bemusement, including the Law Lords comment that, prior to the Anti-Terrorism Act of 2001, individuals had been protected under British law from "arbitrary arrest and detention".
Arrest and detention without trial was a feature of the legal landscape in the Six Counties from almost the beginning of the conflict — when it was referred to by the more familiar name of internment — right up until the late 1990s when Roisín McAliskey was held in prison for a year without charge.
Britain routinely flouted European human rights law through its use of seven-day detention orders for anyone arrested on suspicion of 'terrorist' activity in relation to the north of Ireland. These orders meant that suspects could be interrogated for seven days without legal representation and the orders themselves could simply be renewed by the police as the previous one lapsed — as was the case with Roisín McAliskey.
Indeed, successive British governments were unable to sign up to the European Convention on Human Rights until 2000 because of the continued existence of the PTA. The introduction of the Terrorism Act 2000 merely circumnavigated the difficulties caused by the PTA by making the legislation permanent and by requiring a magistrate or judge to authorise further detention orders.
Special secure units, prisons within prisons condemned by Amnesty as degrading and inhumane treatment and called 'concrete coffins' were used as an extra-judicial punishment for those accused — not convicted — of scheduled offences, often with desperate physical and mental health consequences for those held within them.
Individuals in the Six Counties could be, and actually still can be, arrested for membership of a 'terrorist' organisation on the say so of a senior police officer, without any supporting evidence being required. Only the very credulous would believe that politicians and NIO securocrats have never been involved in that process somewhere along the line.
Few British politicians and even fewer Law Lords or peers intervened to question the legality of these practices under human rights law. But it was in this culture of turning a blind eye to shoddy adherence to human rights and due process in the Six Counties which allowed collusion to flourish.