Parliamentary Liaison - Law on Terror - January 2005

Human Rights and the Law on Terror

Two recent legal judgments relating to detainees at Belmarsh prison draw attention to the dangerous and damaging effect that the "war on terror" is having on civil liberties in the United Kingdom. While the case of "A and eight others v The Home Office" decided in the Court of Appeal (August 11th) that evidence gathered as a result of torture could be admissible in an English court of law, the House of Lords (December 16th) found in relation to the same cases that the indefinite administrative detention of foreign terror suspects breached human rights standards. Both cases highlight the need for amendment of legislation to ensure compliance with human rights standards.

Torture evidence

While UK is a party to the United Nations Convention Against Torture the majority Court of Appeal considered that there was no principle of domestic law preventing a court from considering evidence gathered as a result of torture abroad. Lord Justice Laws for the 2-1 majority said "I am quite unable to see that any such principle prohibits the [Home Secretary ] from relying on evidence which has been obtained through torture." The majority court considered that while the existence of torture was relevant as regards the "weight" that evidence should be given it did not concern the "admissibility" of that evidence. Lord Justice Neuberger, dissenting, however considered that "it is not open to [the court] to receive in evidence, or to take into account, a statement adduced by the Secretary of State, if that statement was made under torture, and this applies whether the statement was made by the appellant or a third party and irrespective of the identity of the torturers."

In the light of recent allegations of the US use of torture in Guantánamo Bay and of oppressive interrogation techniques used by Middle East regimes and in Iraq, the significance of the decision lies in its opening the doors to the use of such tainted evidence. The more readily torture evidence is admitted in courts the more likely it is that torture will take place. None of the evidence against foreign terrorist suspects has so far been made public.

Belmarsh detainees

In what may be the most significant case since the Labour Party came to power the House of Lords (U.K's highest court) has ruled that detaining foreign terror suspects under immigration powers breaks human rights law. The suspects are detained in what one of the judges, Baroness Hale, has referred to as "a prison with three walls." The detainees have the right to return to their country of origin but can do so only by risking persecution on return.

None of the thirteen suspects held at London's Belmarsh prison, has been subject to a criminal charge. Of the nine challenging the Home Secretary, two have left the country, one has been transferred to Broadmoor mental hospital, one released without conditions and one is on bail. Several have been held for over three years.

Judges have traditionally been reluctant to criticise the government over internment but the Human Rights Act has given them authority to review legislation for its compatibility with human rights. When the Home Secretary detained foreigners in the Second World War without providing evidence of the "reasonableness" of his decision to detain, Lord Atkin was the sole dissenting judge, claiming the decision to support internment would not have been out of place in the "Court of King`s Bench in the time of Charles I." In the present case concerning the compatibility of the Anti-Terrorism Crime and Security Act with the Human Rights Act, eight out of nine judges have found against the Government. While Lord Bingham found the detention "disproportionate" and "discriminatory," for Lord Hofmann "the real threat to the life of the nation… comes not from terrorism but from laws such as these."

Charles Clarke has made it clear that the detainees will remain in prison. The real significance of the case lies in highlighting the fact that Britain is the only country to have found it necessary to 'derogate' (opt out of) the European Convention of Human Rights in combating terrorism. It would be wrong to see the Belmarsh detainees as a British Guantánamo. The very reason for their detention is the commitment to conform with human rights standards (Article 3 ECHR) by not returning them to persecution. But immigration measures are a poor substitute for proper trials! It is high time that British Anti-Terrorism legislation is amended to comply with Human Rights commitments.

Conclusion

Both the Court of Appeal and the House of Lords judgments highlight violation of international human rights instruments. In the case of the Court of Appeal judgment the admissibility of evidence garnered as a result of torture abroad undermines moves to make an end to such oppression. In the case of the House of Lords judgement, administrative detention (internment) amounts to an unjustified use of imprisonment without trial.

Action

Friends in contact with their MPs could ask them to press for statutory reform of the rules of evidence to clarify the inadmissibility of any evidence gathered as a result of torture. In relation to the Belmarsh detainees they could press for amendment of anti-terrorist legislation to ensure compliance with the Human Rights Act.

Michael Bartlet, Parliamentary Liaison Secretary, Friends House, 173 Euston Road, London NW1 2BJ January 2005