Not Saussure

May 24, 2007

Dr Reid’s farewell performance?

Filed under: civil liberties, Law, War on Terror — notsaussure @ 8:04 pm

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.

Nevertheless,

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

and

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.

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7 Comments »

  1. Most definitely not. The will be an encore. Perhaps, more than one. I cannae see it lasting two months without another fiasco…

    Comment by John Reid — May 24, 2007 @ 10:03 pm

  2. …ministers could suspend – or “derogate” from – parts of the European Convention on Human Rights…

    Oh how convenient.

    Comment by jameshigham — May 25, 2007 @ 5:46 am

  3. […] Not Saussure has a good analysis. […]

    Pingback by Red herring « UK Liberty — May 25, 2007 @ 1:06 pm

  4. Not so sure about us exporting the problem. That what the Saudis et al tried to do in Afghanistan and look where that got us. Also – would have thought Reid was well qualified to talk on derogation.
    [Excellent blog by the way – we are also ran’s in the whole Satin Pajama thing – congrats on that too.]

    Comment by WSI Brussels — May 25, 2007 @ 2:09 pm

  5. Gasp horror – grocer’s apostrophe…

    Comment by WSI Brussels — May 25, 2007 @ 2:11 pm

  6. Which is why we’ve got these ‘non-derogating’ orders

    Not quite. The Prevention of Terrorism Act 2005 (not to be confused with the Terrorism Act 2006, the Anti-Terrorism, Crime and Security Act 2001, the Terrorism Act 2000…) introduced control orders as a replacement for indefinite detention without trial, partly because (as you say) banging people up in Belmarsh was seen as excessive, and partly because it was discriminatory (British nationals couldn’t be detained). But, as you also say, the Lords did accept the logic of derogation from ECHR on the grounds of national emergency. The PTA 2005 therefore includes provision for both ‘derogating’ and ‘non-derogating’ control orders.

    The point is – and I do wonder if Reid actually doesn’t understand this – that derogation isn’t something the government announces one day, after which they don’t need to take account of the ECHR. The last word is always with the courts: if a derogating control order were challenged, the courts might or might not agree that derogation was justified – and, if they did agree that it was justified, they might or might not agree that the provisions of that particular order were justified. (Come to that, we’ve seen that non-derogating control orders, when challenged in court, have a tendency to fall.)

    So I can’t honestly see what Reid is saying here, unless
    a) he really doesn’t understand the legislation
    or
    b) he just wants to make vaguely threatening noises.

    Comment by Phil — May 25, 2007 @ 3:38 pm

  7. […] There are plenty of good comments around regarding the latest hard line comments from John Reid – I recommend Pickled Politics, Ministry of Truth and Not Saussure. […]

    Pingback by Bread and Circuses » Blog Archive » Reid my lips — May 25, 2007 @ 5:10 pm


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