That awful Bill...

This is from the Joint Committee on Human Rights, which released this Report (openly) yesterday afternoon. It's well worth a read before posting anything inane or uninformed about the Bill.

I have left the 'top and tail' out - if you want the whole document (in .pdf), click here

For those who don't know, 'derogation' means 'the partial taking away of the effectiveness of a law'.

Aspects to be welcomed from a human rights perspective

3. The following points should be positively welcomed from a human rights perspective (albeit subject to the important qualifications set out below):

(1) The Home Secretary’s acceptance of the House of Lords judgment, his acceptance of the need to meet the concerns of the Law Lords by repealing Part 4 ATCSA 2001 and devising a new regime, and his stated desire to do so compatibly with human rights including by avoiding the need to derogate from the European Convention on Human Rights (ECHR) if possible.

(2) The decision that, although the scale of the threat is such as to amount to a public emergency threatening the life of the nation, at its current level deprivation of liberty cannot be said to be strictly required, and there is therefore no need to derogate from Article 5 ECHR (right to liberty and security) at present.

(3) The decision to replace an inflexible system of detention without trial of nonnationals suspected of being international terrorists with measures which are both generally applicable to both nationals and non-nationals and capable of being individually tailored according to the level of threat posed by the particular individual. In principle such an approach is more likely to be capable of being operated in a proportionate and non-discriminatory way.

(4) The degree of judicial involvement provided for in the Bill in relation to derogating control orders (i.e. those which would breach Article 5 but for the derogation) goes some (but not all) of the way to meeting the important concern about the lack of judicial involvement in the making of control orders.
However, the next 6 pages of the report discuss concerns with the act, including the necessity for “derogating control orders”, the lack of prior judicial involvement in orders depriving of liberty, the use of a special advocate procedure in deprivation of liberty cases (i.e. lack of a fair trial), and the limited judicial control of non-derogating control orders.

I have one question really - what on earth are the Government up to? Shurely they can't believe that this law means we will be safer? I note that there is no well articulated definition of what consistutes this 'scale of threat', other than the Government say this law is required to meet something that, currently, doesn't exist!

The Human Rights Act (HRA) came into force in October 2000, with the aim of guaranteeing UK residents certain freedoms and rights under the ECHR.

At the level of the state, these rights are then balanced proportionately against national interests, and in some circumstances, a putting aside of human rights is allowed in contemplation of a greater, necessary good.

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

Charles Clarke, on becoming Home Secretary found his Government's position illegal when a bench of nine Law Lords ruled 8-1 that suspects held in Belmarsh were deprived of their rights to a fair trial. Further that they were discriminated against under Article 14, as the TA only applied to foreign nationals, and that they should no longer be detained at Belmarsh.

One suspect, known only as G has been released on house arrest. Charles Clarke took him before the Special Immigrations Appeal Court (SIAC) 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! This is an aberration.

G rightly won his case, as the Home Secretary could not show that he had breached any of the conditions of his house arrest despite presenting unknown intelligence against him.

Other detainees have declined to be released under house arrest as they, and Amnesty International, argue that this is merely replacing one detention without a fair trial with another. Several detainees are in the process of putting together a case to be heard before the European Court of Human Rights. In anticipation Clarke has said he will look at the Law Lords 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 Law Lords' position, and human rights law. 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 also 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 in London on Tuesday 8th February 2005 renewed his 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 a truly independent judiciary would be free from political tampering and would have the power to overrule primary legislation such as that Charles Clarke is hoping to pass in the lower chamber of the House of Commons.

Whilst I am no lawyer, if the options are:

1. Trial by Bliar's cronies

2. Trial by an impartial judiciary

then I suggest this is a no-brainer.

All very dissappointing - even to an unreconstructed right winger like me. :evil:
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