The ruling on the detentions of those the Home Secretary believes to be
dangerous terrorists and a threat to Britain reflects the ruling of the Special
Immigration Appeals Committee back in 2002, when it called the detentions,
"Not only discriminatory and so unlawful", but also, "disproportionate". That
ruling was however over-turned after Appeal later that same year.
The Law Lords have now confirmed the validity of the original ruling by an eight
to one majority. A nine member panel of senior Lords is unusually large but
reflected the importance of this highly constitutionally relevant case.
The ruling confirms what most people already believed; indefinite detention
without the right to trial is a fundamental breach of human rights and an
abomination to a free society.
Britain's homegrown version of 'Guantanamo Bay' has provoked outcry amongst
many in Britain, Europe and across the world. That the Appeal Court overturned
SIAC's original ruling, and there even now remains one dissenter to the latest
decision, is hard to understand. The Kafkaesque manner in which those held have
never seen the evidence behind their detention and are therefore unable to
challenge it is an aberration of the judicial process of what we would like to
call a civilised society.
Proper judicial process is all that those campaigning against these
detentions have demanded. Justice must be done, and must be seen to be done.
There has been no demand that those held should be freed regardless. No claim
that those held are innocent and not a danger to society, beyond the application
of natural law which holds all men innocent until proven guilty. All that was
asked for was that those held be processed through the system of justice we have
created to determine whether they are a danger or not, and to be dealt with on
the basis of hard and real evidence, and not whatever the Home Secretary
believes is the case. It is for the courts to decide if the detainees have done
anything wrong or not and thus determine if they should be detained further or
freed. It is for the Home Secretary to produce the evidence he has and for the
courts to judge that evidence. That the Home Secretary acted as Judge, Jury and
Jailer is what has caused such a furore.
Presumably those detained, mainly in Belmarsh Prison, will not be released as a
result of the ruling, for doing so will demonstrate that they are, and were not,
a threat to the security of the UK and that their detentions were entirely
unjustified. It would clearly show that the Home Secretary was wrong in holding
them, having no justifiable reason to do so, and no evidence to support such
detentions.
The only option is to charge those detained and place them in front of a court
to decide their future fate. A belated decision, but what the campaigners have
fought for nearly three years to achieve.
The incoming Home Secretary, Charles Clarke, faces a difficult decision on day
one of his new job; to release those detained with the political backlash that
will inevitably arise over his predecessor's decision making ( which could send
shock waves through the Labour Party already reeling from Blunkett's
resignation ), or to allow the courts to do what they must.
It seems a simple and obvious choice, but Clarke will know that whatever
evidence there is which was used to detain those held in the first place will
be opened to public scrutiny. If the evidence is considered shallow, flimsy or
unsubstantiated, the courts may reject it to the embarrassment of the entire
government, and particularly Prime Minister Tony Blair who has put so much
faith in Blunkett and wholeheartedly supported him in whatever he does. Already
in a precarious position of having pre-judged Blunkett to be entirely innocent
of the matter which led to his resignation, his own judgement will be further
called into question. The house of cards could easily collapse.
Clarke could insist that court cases for detainees are held in-camera, as is
likely to be the case given earlier arguments that the evidence is sensitive and
a matter of national security, but that has its own pitfalls should the courts
find the evidence wanting and free those detained. Inadequate evidence shielded
from public scrutiny will only increase allegations that the government is not
adverse to sexing up the facts when it suits, more concerned over phantoms
and fantasy than hard reality and truth.
Clarke also has to decide what to do with the evidence which Blunkett considered
so sensitive that it couldn't even be presented in court. If it is to be
presented now, then there is little to support an argument that it couldn't have
been presented earlier. If it can't be presented, is Clarke going to decline to
do so and virtually hand those detained a 'Get out of jail free' card ? It
would be ridiculous if the most dangerous people the government know are
allowed to simply walk free. If they are such a danger, then wouldn't the
government be failing in its duty to protect UK citizens ? Obviously it would
be.
The convoluted arguments Blunkett created to justify unwarranted detentions
are coming home to roost, and he has created, what is now, an almost impossible
situation. If he hadn't already gone, it is hard to see how he could have
survived a fall now. Trapped in a macabre quagmire of his own making.
Of course there's a fundamental difficulty to be faced in even taking those
detained to court; in order to be prosecuted, they must be charged. And to be
charged they must have committed some crime. While Blunkett's indefinite
detention regime allowed for the prosecution of Thought Crime, real or
imaginary, the physical system of justice in Britain is not so wide open to
such abuses of justice.
Even if a charge can be concocted from the evidence against detainees it will
still have to be of a serious enough nature and supported evidentially to avoid
seeing the case thrown out or defeated.
Unless the cases do result in convictions, imprisonment or deportation, it will
be hard to see the detentions being viewed as having been merited in the first
place. And if convictions are the result, then in itself it gives lie to the
argument that they couldn't have been brought to court earlier.
Stepping out with a bravado which may be no more than first-day strutting, or
a sign that the Home Office will continue to dominate parliament with hard and
far hitting draconian and authoritarian legislation, Clarke announced that his
primary role was to protect Briatin, and that the detainees would be remaining
in prison. For how long he didn't say, but if he refuses to rectify the
situation as it currently stands with expediency, the government will be
embroiling itself in a massive constitutional crisis.
Standing against not only the force of European Human Rights Law but against
the findings of the Law Lords, is not going to shift anyone's opinion that
Blairite governance means anything other than the continuing destruction of
civil liberties in Britain and an ongoing disrespect for the law of the land.
It looks impossible to create any legislation to support the continuation of
indefinite detentions which do not have the discriminatory aspects the Lords
condemn, except by enacting laws which allow all British Citizens to be
imprisoned without trial. While judicial protections have been severely eroded
under Blunkett's reign, that would be a step too far for nearly all outside the
Cabinet.
As a result of their original knee-jerk legislation and the Law Lord's ruling
upon it, Clarke, and the entire government, have found themselves floating in
the middle of what some say is a sea of s--t with no land in sight, and with no
obvious direction to go in.
There would appear to be no way any final outcome of this sorry affair can
present a conclusion other than one which reveals the detentions were entirely
unjustified.
And what does that say about a government which allowed them, and a Prime
Minister that supported them ?
