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Weekly Worker 559 Thursday January 13 2005

Judges condemn
Belmarsh (sort of ...)

On December 16 2004 the House of Lords gave judgement against the government in the case brought by several Belmarsh detainees. The decision hit the front pages as a judicial condemnation of the Anti-Terrorism, Crime and Security Act 2001 - the legislation which allows indefinite detention of foreign ‘terrorist’ suspects.

The detainees’ lawyers, and campaigners on their behalf, promptly called for their release. The new home secretary Charles Clarke announced that it would not do so, and foreign secretary Jack Straw called the decision “simply wrong”. The Independent described this situation as a “constitutional crisis”.

If the House of Lords had ordered the release of the detainees under habeas corpus on the ground that the 2001 act was contrary to human rights, this would undoubtedly have been a constitutional crisis: such a decision would have asserted that the courts had power to strike down acts of parliament.
If the Lords had ordered the detainees’ release on the ground that the individual decisions to detain them were irrational or unfairly reached, and the government had refused to release them, this would again have been a constitutional crisis, albeit of a different sort, since the government would be refusing to implement court orders.

But in fact, neither happened. The House of Lords was asked much more limited questions. Their answers to these questions are embarrassing to the government, but not as embarrassing as they could have been. There is no constitutional crisis. The whole episode does, however, raise larger constitutional questions.

The 2001 act
The 2001 act was part of the British government’s response to 9/11 - the September 11 2001 attacks on the World Trade Center and Pentagon. Just as the US government did with its Patriot Act, the British government used 9/11 as an excuse to take broad, sweeping powers to combat ‘terrorism’.

The 2001 act allows the home secretary to certify that individuals are “suspected international terrorists”. Once this certification is in place, the individual may under section 22 be deported, in spite of the fact that they face death or torture in their home country (the government has chosen not to implement this provision for the moment, although it has stated that if the detainees were to volunteer to return to death or torture they could be released and deported immediately). Or, under section 23, they may be detained indefinitely.

A 1997 act had previously set up a semi-secret court, the Special Immigration Appeals Tribunal (SIAT), which was given jurisdiction to deal with appeals on deportation, etc, on public security grounds; the 2001 act gave SIAT exclusive jurisdiction over all matters relating to certification and detention, and in relation to UK derogations from the European Convention on Human Rights. Appeals from SIAT lie on questions of law only, not questions of fact.

There is a good deal of evidence that the US Patriot Act powers have been used against general political dissent. There is similar evidence in relation to the British Anti-Terrorism Act: chiefly its September 2003 use against arms trade protesters. Moreover, the 2001 act has displayed a familiar feature of British securocrat ‘anti-terrorism’ culture. In the 1970s and 80s they used the Prevention of Terrorism Act 1974 to pick up random ‘Paddies’ to show that they were ‘doing something’ about the IRA’s mainland campaign. The Independent on January 6 published some of the flimsy ‘evidence’ and ‘intelligence’ which has been used against Belmarsh detainees. It has become apparent that picking up random ‘Paddies’ has now been replaced by picking up random ‘Pakis’.

This culture goes a long way further back: Mr Liversidge of the celebrated 1942 case Liversidge v Anderson was a London Jew of Russian extraction with no connection with either Germany or the fascists. Yet he was interned because when he applied to join the air force he described himself as a Canadian (see B Simpson In the highest degree odious London 1992, p142). His detention was presumably attributable to anti-semitism, which was the main form of domestic British state racism in the first half of the 20th century. In modern Britain, therefore, internment powers which allow the securocrats not to disclose the grounds on which they are acting will predictably be operated in a racist way.

Imprisonment without trial
Communists oppose on principle imprisonment without trial, secret trials and imprisonment on secret grounds. The ground for this opposition is not that imprisonment without trial, etc is a violation of the individual’s ‘human rights’. This argument is, as we shall see shortly, a political trap. Rather, the reason is that the bureaucratic-coercive state is untrustworthy. As Marx explained in his early Critique of Hegel’s doctrine of the state, the state does not express the general interest of the society but the aggregate of the particular interests of state bureaucrats. This is as true of a ‘socialist’ or ‘workers’ bureaucratic-coercive state as it is of a capitalist or was of a feudal or slave-owner state: as the fate of the Russian Revolution showed. The racist use by low-level officials of internment in 1939-45, of the Prevention of Terrorism Act and of the Anti-Terrorism Act provide excellent examples in Britain of the fact that the state because it expresses the aggregate interest of individual state bureaucrats cannot be trusted with powers of imprisonment without cause publicly shown.

The prohibition of imprisonment without trial is of considerable antiquity in English law. It dates to Magna Carta (1215) and was restated during the middle ages in a series of reissues of Magna Carta and ‘statutes of due process’, and in the 17th century in the Petition of Right (1629). The Habeas Corpus Act 1679 attempted to give the prohibition teeth by imposing severe penalties on officials for non-compliance.

In spite of these restatements, judicial approaches to the prohibition have been erratic. Especially in ‘public emergencies’, like war or insurrection, judges have tended to defer to the government of the day’s claim that this or that form of imprisonment without trial is essential. Liversidge v Anderson is a case in point: the majority of the House of Lords held in that case that the home secretary was not obliged to disclose the grounds of Liversidge’s detention in order to show that he had ‘reasonable grounds’ for it.

Human rights
The current legal form of the prohibition on imprisonment without trial is that it is contained in article 5 of the European Convention on Human Rights. The 1950 convention is a treaty, subsequently modified, signed by most European states (it is not connected with the European Union). The British foreign office promoted it as part of the campaign to solidify west European opposition to the eastern European ‘communist’ regimes, but the government then found it was highly embarrassing to Britain’s normal practice in dealing with colonial rebellions (see B Simpson Human rights and the end of empire 2001).
There is a European Court of Human Rights, which sits at Strasbourg. The British government granted the right of individual application to the court in 1966. The court cannot simply strike down UK laws, but it can award damages to the individual against the UK government: the result is usually that the government then changes the law in order to avoid having to pay out repeatedly.

In 1998 the Human Rights Act ‘incorporated’ the convention into English law. The result is that judges are allowed to apply convention rules directly. They are still not supposed to directly overrule acts of parliament. Instead, they can interpret them as far as possible, taking into account the need to comply with the convention. Or, in the last resort, they can make a ‘declaration of incompatibility’, stating that the rules of the given act are inconsistent with the convention. It is then up to parliament to decide what to do about the inconsistency.

Under article 15, governments have power to issue ‘derogations’ from the convention “in time of war or other public emergency threatening the life of the nation”. In 2001 the government issued such a derogation to back up the Anti-Terrorism Act and prevent detainees petitioning the Strasbourg court. The derogation was not by act of parliament, but by ministerial order.

Before the courts
These circumstances defined the issue before the courts. The detainees’ lawyers did not invite the courts to say that the 2001 act was invalid. Such an argument could remotely be made, on the ground that the queen is not competent to assent to an act of parliament inconsistent with fundamental constitutional concessions made by the crown in Magna Carta, the Petition of Right and the Declaration and Bill of Rights 1689. But the overwhelming majority of current legal opinion is that the courts cannot say that acts of parliament are invalid - except in the special case of inconsistency with European Union law.

Instead, the detainees’ lawyers argued that the derogation order (not made by parliament) was invalid, and sought a declaration that the 2001 act was incompatible with the convention and the Human Rights Act 1998. Their argument had three levels: first, the threat of terrorism did not amount to a “public emergency threatening the life of the nation”; second, even if it did, the introduction of internment was a disproportionate response; third, even if the introduction of internment was justifiable, it was unjustified under European Convention article 14 (which prohibits discrimination) to intern only foreign nationals - and the ministerial order did not contain a derogation from article 14, but only from article 5.

These are tactical decisions by the lawyers. Their object was not to cause a constitutional crisis or to make a political point, but to get their individual clients out of internment. They must have calculated that they could not achieve this result head-on. Rather, by winning in court on any argument - however limited a challenge it offered to the 2001 act - they could increase the political pressure on the government to release the detainees. If they could overturn the derogation order, they would also open the way for their clients to go to the Strasbourg court.

Faced with these arguments, SIAT found for the detainees on the third, narrowest, ground. The court of appeal reversed the SIAT ruling and found for the government. The House of Lords by a large majority, like SIAT, adopted the narrowest possible ground. Terrorism did amount to a public emergency justifying a derogation, and internment would not necessarily be a disproportionate result, but the restriction of internment to foreign national rendered it discriminatory: hence the derogation order was invalid and the act incompatible with the Human Rights Act. House of Lords appeals are usually decided by a panel of five judges. Foreseeing that this case would be highly controversial, in this case nine of the 12 judges sat. Seven adopted the narrow reasoning. Lord Walker dissented from the decision: he held that the act was not discriminatory. Lord Hoffman, uniquely, accepted the detainees’ lawyers’ first argument, that there was not a qualifying public emergency. He was effectively the sole voice for the fundamental point, that the expansion of state powers of imprisonment was more of a threat to political liberty than terrorist attacks.

By taking this line the House of Lords has achieved a wonderful result in its own interests and that of the legal profession. Look, the supporters of the judicial power and the ‘rule of law’ will say: judges can condemn the worst abuses of the state. And yet the court has not entered into direct conflict with the bureaucratic-coercive state. Its reason for rejecting the government’s arguments was the most limited possible and allows the government a wide range of options for continuing the internment policy of the 2001 act in a different form. The judges’ rhetorical condemnation of the government is almost entirely cost-free.

Government responses
As already said, the government’s immediate response was to say that it would not release the detainees, and Jack Straw said that the decision was “simply wrong”.

However, in no way does it compel the government to release the detainees. The government has open to it a number of different possible responses. The simplest would be to create a system of internment of ‘terrorist suspects’ which would apply to British citizens as well as foreigners. This would be entirely consistent with the ruling of the majority in the House of Lords. The politics makes it less likely. More likely is the creation of some form of what in Northern Ireland were called ‘Diplock courts’: special courts to try ‘terrorists’, with judges sitting partly in secret, without juries, and using secret evidence. The workers’ movement should oppose all such initiatives vigorously, for the reasons already given. Secret trials are as objectionable as internment without trial. The reason the state wants to keep the evidence secret is precisely that it is unreliable.

Straw’s argument that the decision is “simply wrong” is more interesting. It reflects arguments which he, Blunkett and Blair had already made when justifying the various forms of legislation this government has promoted restricting jury trial and other traditional procedural rights of people accused of crime.

The underlying argument is that ‘human rights’ are in conflict with one another. Article 1 of the convention protects the right to life. Terrorist bombings violate the right to life. Article 5 protects the right to liberty. Anti-social behaviour, government spokespeople have argued, violates the right to liberty: gangs of youths roaming the streets imprison others, especially elderly people, in their own homes. These competing rights demand compromises: restrictions of liberty may be necessary to protect the rights and liberty of others.

Within its limits, this argument is entirely correct. If political choices are to be formulated in terms of competing individual ‘human rights’, then choices of the sort Blair, Blunkett and Straw have urged are both unavoidable and easily justified. The language of ‘human rights’, far from restricting the power of the state, calls for more state intervention to ‘protect’ those rights.

Communists fight for extreme democracy. For precisely this reason we have to fight for political liberty and for the limits on state power which political liberty requires: among others, against imprisonment without trial, against secret trials and secret evidence. But we should not be fighting either for ‘human rights’ or for the ‘rule of law’ and the independent judicial power. ‘Human rights’ language is a trap and can be used with equal force to extend state power as to oppose it.

The Belmarsh case, while it superficially seems to be a judicial attack on the government, in fact demonstrates the extremely limited willingness of judges to protect political liberty against the state. The struggle for political liberty is necessarily primarily a political struggle, not a legal one.

Mike Macnair

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