Friday, December 17, 2004

Judgment on detention

The House of Lords has ruled on the case of nine suspected "terrorists" detained in the UK. They found (by a majority) that their detention is contrary to the Human Rights Act, on the grounds that only those without right of abode in the UK could be detained. The UK government now has to review the legislation, and is reported to be continuing to hold the nine while it considers what do do. Unfortunately, as in New Zealand, where a law gainsays Human Rights provisions, the courts cannot disapply that law.

There were two grounds for appeal: that the law enacting the legislation discriminated unlawfully against foreigners; that the derogation from the ECHR, permitting indefinite detention, was unjustified because no threat existed "to the life of the nation". The court as a whole agreed with the first premise but not the second. Lord Hoffman, however, dissented on the second ground. His contribution to the judgement is well worth reading, particularly this paragraph:

95. But the question is whether such a threat is a threat to the life of the nation. The Attorney General’s submissions and the judgment of the Special Immigration Appeals Commission treated a threat of serious physical damage and loss of life as necessarily involving a threat to the life of the nation. But in my opinion this shows a misunderstanding of what is meant by "threatening the life of the nation". Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. When Milton urged the government of his day not to censor the press even in time of civil war, he said:
"Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governours".

To my mind this is absolutely right. If "terrorists" succeeded in mounting a major atrocity in the UK (or indeed here in New Zealand) it would undoubtedly be a tragedy. It would not however, terminate the continued existence of the nation, its institutions and values. Elsewhere, Hoffman contrasts the present situation with the threat posed by Spain in the 16th Century - had Spain succeeded in overwhelming England, this would have placed the nation under reactionary Catholic rule, very different from the prevailing Anglo-Norman values of England at that time.

The majority did not concur with this view - to do so would rather pull the rug from under the "war" on "terror" and judges tend to prefer the scalpel to the bludgeon. The finding (by 8-1) that the law was discriminatory on grounds of nationality is less controversial. I fear the UK governmment will now proceed to enact arbritary detention for UK nationals as well as foreigners.


Greg Stephens said...

The statement "Unfortunately, as in New Zealand, where a law gainsays Human Rights provisions, the courts cannot disapply that law." is not true any longer.
The European Court of Justice can throw out any law which breaches the human rights law of the European Union. There have been numerous breaches of human rights by the British government over the 'War on Terror' that have been changed by the ECJ.

Rich said...

The European Court of *Justice* is an EU body and is primarily concerned with intra-EU commercial and trade matters.

The European Court of *Human Rights* is an institution of the Council of Europe (not the same as the EU) and has jurisdiction to enforce the European Convention of Human Rights.

Both bodies sit in Strasbourg, France, but they are quite separate (although very frequently confused).

I think that, were the detained people to appeal to the ECHR and win, the UK would be obliged by treaty to change its law and/or free them. For the UK Government to wait for this to happen would be an act of extreme cynicism.

Jordan said...

Interesting comment on Lord Bingham's ruling in the Guardian - well worth a look. Martin Kettle wrote it, published Tuesday 21 December.