David Blunkett’s anti-terrorist measures were thrown into disarray this morning as the highest court in the land ruled that the indefinite detention of foreign nationals under the 2001 Terror Act was incompatible with human rights.
Lord Bingham of Cornhill said that ‘the measures unjustifiably discriminate against foreign nationals on the ground of their nationality or immigration status, and are not “strictly required” since they provide for the detention of some but not all those who present the same risk.’
The ruling means that Charles Clarke’s first job as Home Secretary will be to decide whether to abandon the detentions altogether or seek new legislation to overcome the Law Lords’ objections. Some human rights groups fear that the power to imprison without trial will now be extended to British as well as foreign nationals, in order to overcome the charge that the current legislation discriminates against foreigners.
The nine Muslim men who brought the challenge to the detention powers have been imprisoned at Belmarsh prison, dubbed ‘Britain’s Guantanamo’, for three years without charge or any prospect of imminent release. Three of the detainees have been diagnosed as severely mentally ill. Gareth Peirce, lawyer for some of the detainees, told the Independent recently that these men had ‘reached a life-threatening condition in Belmarsh and have been driven to severe mental illness’.
In December 2001, Britain opted out of part of the European Convention on Human Rights in order to detain the men, effectively abolishing habeas corpus – freedom from arbitrary imprisonment. Section 23 of the Anti-Terrorism, Crime and Security Act (2001), which was rushed through parliament after September 11, provided for the detention of foreigners suspected by the intelligence services of involvement in international terrorism if they could not be deported due to the risk of their suffering inhuman or degrading treatment in their homeland.
The Law Lords ruled by an eight to one majority that Section 23 was incompatible with Britain’s obligations under the European Convention on Human Rights and that the government must pay costs for the nine Belmarsh prisoners. The detention was first ruled discriminatory in July 2002 by the Special Immigration Appeals Commission. This decision was overturned at the Court of Appeal in October 2002, following an appeal by the Home Office.
The Law Lords ruled that there was no reason to reject the government’s assessment that Britain was a in a state of emergency. But, nevertheless, the courts had an obligation to ensure that human rights standards were upheld. ‘It is for the government, not the courts, to decide the steps necessary to combat terrorism. But the courts must check that human rights are not disregarded – as they have been here’, said Lord Nicholls of Birkenhead. The Attorney General had argued that the courts were reaching beyond their remit in challenging the detentions.
‘This ruling comes three years too late’, said Amnesty International. ‘Nothing can remedy the fact that people have been detained without charge or trial, principally on the basis of secret evidence, for nearly three years.’