The Clipboard: British terror laws face new court test

From an article¹:

Suspects detained at Belmarsh prison and Broadmoor high security hospital have launched a case at the European court of human rights that could wreck the government's plan to replace detention in prison with house arrest, the Guardian has learned.

The case challenges the policy of indefinite detention without charge or trial. By questioning the assumption that terrorism poses an emergency threatening the life of the nation, it could also strike at the heart of the house arrest proposals.

The move means that the government is facing opposition to its anti-terror proposals on three fronts. In addition to the Strasbourg challenge, there is opposition from the Tories, Liberal Democrats and Labour backbenchers, as well as a chorus of calls for phone tap evidence to be allowed in terrorist trials.

One of the UK's foremost human rights QCs, David Pannick, who is representing the civil rights group Liberty in the Strasbourg case, has advised in a legal opinion that the prospects of convincing European judges that the life of the British nation is not threatened by terrorism are "very strong".

That would be potentially devastating to the home secretary's plans to introduce executive house arrest for both British and foreign terror suspects. Charles Clarke can only do so having opted out of the European convention on human rights, and in turn he can only do that on the grounds that Britain faces a "public emergency threatening the life of the nation".

Mr Pannick, who frequently advises the government, will focus his legal argument in Strasbourg on the state of emergency. He said: "There are very strong prospects that the European court of human rights will conclude that there is no public emergency threatening the life of this nation and therefore no derogation [opt out] from the convention is possible."

The Strasbourg case is being brought by Gareth Peirce, the detainees' solicitor, but Liberty is intervening to present its own arguments. Ms Peirce and Liberty have asked for the case to be brought forward. If given priority, it could come to court in a few months, halting Mr Clarke's legislation introducing house arrest in its tracks. A spokesman for the Strasbourg court could not say whether the case would get priority.

The Newton committee of senior MPs and peers set up by the government to review the anti-terror laws noted in its 2003 report: "The UK is the only country to have found it necessary to derogate from the European convention on human rights. We found this puzzling, as it seems clear that other countries face considerable threats from terrorists within their borders."

The law lords ruled in December that powers to detain foreign nationals indefinitely under the Anti-Terrorism Crime and Security Act 2001 were disproportionate to the threat posed and discriminatory because they did not apply to British citizens as well. The proposed orders, also covering British nationals and with a range of restrictions up to house arrest, were the government's response to the law lords' ruling. (link)

I hope this lawsuit is successful; one of the benefits of Britain being in the European Union is being able to force it sometimes to abide by human rights laws.

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Complete text of the article, Terror laws face new court test, by Clare Dyer and Richard Norton-Taylor

Suspects detained at Belmarsh prison and Broadmoor high security hospital have launched a case at the European court of human rights that could wreck the government's plan to replace detention in prison with house arrest, the Guardian has learned.

The case challenges the policy of indefinite detention without charge or trial. By questioning the assumption that terrorism poses an emergency threatening the life of the nation, it could also strike at the heart of the house arrest proposals.

The move means that the government is facing opposition to its anti-terror proposals on three fronts. In addition to the Strasbourg challenge, there is opposition from the Tories, Liberal Democrats and Labour backbenchers, as well as a chorus of calls for phone tap evidence to be allowed in terrorist trials.

One of the UK's foremost human rights QCs, David Pannick, who is representing the civil rights group Liberty in the Strasbourg case, has advised in a legal opinion that the prospects of convincing European judges that the life of the British nation is not threatened by terrorism are "very strong".

That would be potentially devastating to the home secretary's plans to introduce executive house arrest for both British and foreign terror suspects. Charles Clarke can only do so having opted out of the European convention on human rights, and in turn he can only do that on the grounds that Britain faces a "public emergency threatening the life of the nation".

Mr Pannick, who frequently advises the government, will focus his legal argument in Strasbourg on the state of emergency. He said: "There are very strong prospects that the European court of human rights will conclude that there is no public emergency threatening the life of this nation and therefore no derogation [opt out] from the convention is possible."

The Strasbourg case is being brought by Gareth Peirce, the detainees' solicitor, but Liberty is intervening to present its own arguments. Ms Peirce and Liberty have asked for the case to be brought forward. If given priority, it could come to court in a few months, halting Mr Clarke's legislation introducing house arrest in its tracks. A spokesman for the Strasbourg court could not say whether the case would get priority.

The Newton committee of senior MPs and peers set up by the government to review the anti-terror laws noted in its 2003 report: "The UK is the only country to have found it necessary to derogate from the European convention on human rights. We found this puzzling, as it seems clear that other countries face considerable threats from terrorists within their borders."

The law lords ruled in December that powers to detain foreign nationals indefinitely under the Anti-Terrorism Crime and Security Act 2001 were disproportionate to the threat posed and discriminatory because they did not apply to British citizens as well. The proposed orders, also covering British nationals and with a range of restrictions up to house arrest, were the government's response to the law lords' ruling.

The Strasbourg case coincides with calls for phone tap evidence to be allowed in court, so that terror suspects could be tried rather than detained indefinitely without charge. The EU's head of foreign policy, Javier Solana, yesterday joined the call for intercepts to be heard in trials, a common practice in Europe.

Asked about the European experience, he told ITV's Jonathan Dimbleby programme: "Sure it works. It is normal that it is done. It would be naive not to do it."

He said he also had qualms about the prospect of Britain opting out of the convention on human rights to introduce house arrest.

Similar calls for phone tapping to be used have come from the Tories, Lib Dems, Liberty, the new Metropolitan police commissioner, Sir Ian Blair, and the director of public prosecutions, Ken Macdonald.

The government has suggested that phone tap evidence could expose secret techniques used by MI5, MI6 and the government listening post GCHQ, as well as compromising security sources.

The security and intelligence agencies also argue that allowing wiretap evidence would be of only marginal benefit.

reference=http://www.guardian.co.uk/terrorism/story/0,12780,1407336,00.html?gusrc=rss