Dr Reid is understandably annoyed that about the three terror suspects who’ve just gone missing. Reassuring, though,
As the hunt for the three men continued, Home Secretary John Reid said they were not a “direct threat” to people in the UK.
Mr Reid also said ministers could suspend – or “derogate” from – parts of the European Convention on Human Rights to allow tougher control orders to be imposed in future.”We will consider other options, which include derogation, if we have exhausted ways of overturning previous judgments on this issue,” he said.
Now, this is a bit puzzling. People will recall that these control orders were introduced after the Law Lords ruled against Part 4 of the Anti-Terrorism, Crime and Security Act 2001, whereby David Blunkett had given himself the power indefinately to lock up foreigners he suspected (but could not prove) were terrorists. This involved ‘derogating’ from Article 5(i) of the European Convention on Human Rights (habeas corpus, fair trial and suchlike), which you’re allowed to do under Article 15:
In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law
Note the two preconditions —
war or other public emergency threatening the life of the nation
to the extent strictly required by the exigencies of the situation
While the Lords agreed — possibly surprisingly, since no other signatory to the ECHR had found it necessary to derogate, and we have frequently been told, have we not, that Britain’s foreign policy has nothing whatsoever to do with any risk of terrrorism we may face — that we were, indeed, facing a ‘public emergency threatening the life of the nation’, they thought that banging people up in Belmarsh was rather more than was ‘strictly required by the exigencies of the situation.’ Which is why we’ve got these ‘non-derogating’ orders that Dr Reid finds so unsatisfactory. (This account is based on an excellent lecture by Lord Phillips, the Lord Chief Justice, last year on Terrorism and Human Rights, should anyone want to go into the subject in more detail).
To be fair, there were various other flaws in David Blunkett’s stab at the problem (the Lords thought it illogical that it only applied to foriegners and not to Brits, and also thought it illogical that the detainees were free to leave the country at any time), so I can see that their Lordships might take a different view of some new regime. But go to the Lords it assuredly would, and there’s every chance it would be struck down again, not least on the basis that the escape of three men who the Home Secretary doesn’t consider ‘a “direct threat” to people in the UK’ fits too well with ‘to the extent strictly required by the exigencies of the situation.’
Such a proposal would doubtless run into opposition from many quarters, not least from Sir Ken Macdonald, the Director of Public Prosecutions, who told the Criminal Bar Association in no uncertain terms this January,
Terrorism is designed to put pressure on some of our most cherished beliefs and institutions. So it demands a proactive and comprehensive response on the part of law enforcement agencies. But this should be a response whose fundamental effect is to protect those beliefs and institutions. Not to undermine them.So, although a development in the role of the security services and the police is essential and desirable in this context, I believe an abandonment of Article 6 fair trial protections in the face of terrorism would represent an abject surrender to nihilism. It would represent defeat.
All this, of course, is almost certainly academic; it seems to me a bit unlikely that Dr Reid, who’s said he’s going at the same time as is Blair, is going to be allowed to saddle the incoming Prime Minister with the political consequences of derogating from the ECHR or his successor with getting through yet another anti-terrorism bill which will almost certainly end up in a dubious fight in the Lords, just because he wants to distract attention from the fact he can’t keep an eye on these chaps who’re apparently dangerous enough to need control orders imposing on them but don’t pose ‘”direct threat” to people in the UK’ (no, I can’t quite work that out, either).
I know that there are apparently fears they might make their way to either Iraq or Afghanistan, without passports, there to take up arms against British soldiers, but I don’t really see that they can make things much worse in either place than already they are. Indeed, it could be argued that this would be a desirable outcome, since if they survive the experience, if we catch them we can charge them with treason. But really, this is just Dr Reid blustering, yet again, and telling everyone that it’s everyone’s fault but his when something goes wrong with everything he touches.
Only just over a month to go, though.