Unconstituted on Red

On the unconstitutional detention of terror suspects

The words constitutional crisis have rang through the papers the past few months, and for good reason. The Human Rights Act (HRA) came into force October 2000, with the aim of guaranteeing UK residents the freedoms and rights under the European Convention of Human Rights. These rights are then balanced proportionately against national interests, and, in some circumstances, a putting aside of human rights can be understood when for the greater, necessary good. So what went wrong with the terror detainees held at Belmarsh?

The Terrorism Act (TA) is a prime example of when the HRA can work against the state in protecting it's citizens - Art 6, the right to a fair trial can lead to sensitive information being diclosed in open court; Art 10, freedom of expression can lead to the press publishing sensitive information that could then jeapordise our intelligence agencies. The Home Secretary can reccommend that a terror suspect be held under the TA; which Blunkett when in power did with at least 11 men.

Charles Clarke, on taking Blunkett's position was defeated by a verdict of 8-1 by the House of Lords when they ruled that the suspects were deprived of their rights to a fair trial, that they were discriminated against under Art 14 as the TA only applied to foreign nationals, and that they should no longer be detained at Belmarsh. Yet some of the men are still there today. One suspect, known only as G has been released on house arrest, and last week Charles Clarke took him before the Special Immigrations Appeal Court in a secret hearing to have him returned to Belmarsh. The defence was not allowed to hear the evidence and was only able to speculate as to what the evidence was and then formulate a defence around that assumption. G rightly won his case, as the Home Secretary could not show that he had breached his house arrest with the unknown intelligence against him.

Other detainees have declined to be released on house arrest as they argue, as have Amnesty International, that it is merely replacing one detention without a fair trial for another. Several detainees are in the process of putting together their case before the European Court of Human Rights, however Charles Clarke has retaliated saying that he will be studying the HoL judgement carefully and will be recommending modified legislation on the matter.

Clarke's position is clearly to give the executive power to detain suspects regardless of the HoL's postition, and the entrenched human rights legislation. It is this tug of war between the executive and judiciary that troubles constitutional purists, and the public alike. The judiciary are trained and paid to judge, indeed that is their role. The executive's political tampering not only usurps the judiciary but leaves the public feeling helpless to a secretive executive playing power games for reasons that only they know of, and aren't prepared to divulge.

The Lord Chancellor speaking last Tuesday at a committee renewed faith in a UK supreme court, dismissing the cost on grounds of benefit; and it is here, that the benefit would be seen most. A supreme court with truly independant judiciary would be free from political tampering and would have the power to disapply primary legislation such as that Charles Clarke is hoping to pass in the lower chamber.

posted by Wanderlust @ 8:16 PM