No apology as courts expose double discrimination

No apology as courts expose double discrimination


Written by: Frances Webber

In December, the Law Lords found that the government disciminated against Roma in immigration controls and against foreign nationals in anti-terrorist detentions. Together, the judgments reveal a mindset that has not changed since the creation of a ‘Fortress Europe’ in the 1980s.

In two landmark legal judgments, the House of Lords, Britain’s highest court, has accused the government of systematic race discrimination – in policies, practices and entrenched in laws. In the first case, the discrimination was directed against Roma, in the second, against foreigners who were suspected of support for international terrorism. In neither case has the government offered any apology for its actions.

Immigration controls

The first case was brought by six Roma and by the European Roma Rights Centre, to challenge the legality of what was described as a ‘pre-entry clearance scheme’ in the Czech Republic, which was designed to stop Roma asylum seekers from coming to Britain. Immigration officers went to Prague airport and questioned passengers before they boarded aircraft. If passengers said they intended to claim asylum on arrival, or if the immigration officers suspected that they would, they were told they could not go to the UK, and refused permission to board the aircraft. They targeted Roma, who were ‘readily identifiable through their darker skin and hair’, for more intensive and intrusive questioning, and refused almost 90 percent of Roma passengers, compared with 0.2 percent of non-Roma passengers: a ratio of around 400:1. The pre-clearance scheme, which began in July 2001, operated intermittently, without advance warning, for days or weeks at a time, and dramatically reduced the numbers of Roma seeking to travel by air to the UK.

The government justified the scheme by reference to the fact that the vast majority of asylum seekers from the Czech Republic were Roma, a rationale accepted by the High Court and by a majority in the Court of Appeal. The House of Lords, however, in its judgment issued on 9 December, said that this was no justification at all. The fact that most Czech asylum seekers were Roma (because of their treatment as a ‘disadvantaged racial minority’ in the Czech Republic) did not mean that most Roma were asylum seekers, or that they should or could be discriminated against. The Law Lords held that the system operated by immigration officers at Prague was ‘inherently and systematically discriminatory on racial grounds’ against the Roma, contrary to the Race Relations Act 1976.


The second case, in which the Law Lords gave judgment a week later, on 16 December, relates to the internment of foreign terrorist suspects, held in some cases since December 2001 in HMP Belmarsh and HMP Woodhill, under the Anti-terrorism, Crime and Security Act 2001 (ATCSA). The internment law required the government to issue a derogation from Article 5 of the European Convention on Human Rights (the right to liberty), which it could only do in cases of a ‘public emergency threatening the life of the nation’. The derogation, and the internment of the men in Belmarsh, have been the subject of a sustained campaign by groups including CAMPACC (Campaign Against Criminalising Communities, which was shortlisted for a human rights award the week before the judgment) and other refugee and community groups.

The existence of ‘Britain’s Guantánamo’, the provisions consigning the men to the limbo of indefinite detention, which in some cases has driven them mad, has been slow to engage public attention, in part because of the small numbers involved and the fact that they are all foreign (the government admitted that such provisions were too Draconian to be applied to British citizens). But the undeniable parallels with unaccountable executive detention of foreign nationals by the US authorities in Guantánamo, continually dragged into public consciousness, finally succeeded in making an impact, so that by the time the men’s case reached the Lords, it was deemed important enough to require an unprecedented panel of nine of the twelve Law Lords, compared with the usual quota of five (and the most liberal law Lord, Lord Steyn, had to disqualify himself after making a strong speech condemning the US treatment of internees in Guantánamo).

The Lords were asked to decide, first, whether the government was entitled to claim that there was such a public emergency justifying the law; secondly, whether the internment law was proportionate to the threat of terrorism, and finally, whether it was discriminatory. The Special Immigration Appeals Commission, to which the men had appealed, had upheld their claim of discrimination, but the Court of Appeal had overruled SIAC’s judgment. Of the nine Lords, eight condemned the internment law. One, Lord Hoffmann, said there was no public emergency threatening the life of the nation: ‘the real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.’ The other seven were not prepared to disagree with the government’s assessment of the threat to the UK, but held the law disproportionate to the threat, and racially discriminatory.

The differential treatment of foreigners versus British suspects had been justified by the Attorney-General on the basis that the foreigners, unlike the British suspects, had no right to be in the country. This argument had held sway in the Court of Appeal. But, said the Lords, that was irrelevant to the threat of terrorism, which was as real in relation to the British terror suspects as it was in relation to the foreign ones. How, they asked, could a government, responding rationally to a terrorist threat, lock up all the foreign suspects but none of the British ones? In response to the Attorney-General’s argument that the foreign suspects could leave, and so avoid internment, if they could find a safe country which would take them, they asked: How could a rational government, believing people to be involved in international terrorism, allow them to leave the country, leaving them free to plan and commit terrorist acts abroad? In any case, they said, most could not leave: the ‘cell with three walls’ described by the government was in fact a cul-de-sac, with no safe escape. Lord Scott graphically described the plight of the internees: ‘Indefinite imprisonment in consequence of a denunciation, on grounds that are not disclosed and made by a person whose identity cannot be disclosed, is the stuff of nightmares, associated … with the Soviet Union in the Stalinist era, and … now associated with the United Kingdom.’ The law was disproportionate precisely because it discriminated as between British and foreign suspects.

Control orders

The Lords pointed out that they could not order the release of the detainees, although they found the law under which they were detained incompatible with fundamental human rights and discriminatory. The government took no action to implement the judgment for over a month. Then, it began to discuss deporting the men (whose internment was predicated on the serious risk of torture or execution in their home countries), saying that perhaps assurances could be obtained from their home governments that they would not torture or execute them. When these overtures were dismissed with derision – by (among others) Sir Brian Barden, a retired diplomat who was a member of the Special Immigration Appeals Commission until his principled resignation in January 2004 – the government unveiled its plans for ‘control orders’, replicating for British and foreign suspects alike the conditions under which bail had been granted to one of the men in April 2004.

These conditions have involved wearing an electronic tag at all times, remaining at home at all times; telephoning a security company five times a day at specified times; the installation of monitoring equipment at home; not allowing anyone to enter the home except for family, solicitor, medical attendants and other approved persons; no computer equipment, mobile phone or other electronic communications device or telephone link at home except for a dedicated link with the security company. Not surprisingly, the man, ‘G’, is said to be feeling isolated and claustrophobic in his one-bedroomed flat with his wife and child, under these conditions. Now that it is proposed to extend such conditions to British citizens suspected of links with international terrorism, everyone, including opposition leader Michael Howard, joins in the furore.

In addition, this week the government published a draft order to extend the ACTSA provisions that allow for detentions of foreign nationals, in spite of the Law Lords’ condemnation of these sections of the Act as discriminatory and incompatible with human rights. If approved by parliament, the draft order will allow the detentions to continue for a further nine months from 14 March.

The mindset disclosed by the two judgments and the government’s response to them is one which has not changed since Britain got together with other European states in the 1980s to build ‘Fortress Europe’. It is a mindset in which foreigners – perceived as asylum seekers, criminals and terrorists – must be kept out. It is a mindset which is used to justify entrenched racial discrimination in immigration controls and the denial of the universality of fundamental human rights – of which liberty and security of person, rights to fair trial, the presumption of innocence, the right to know the evidence against you, are among the most important. And it is a mindset which, in tandem with the rabid anti-asylum seeker and anti-Muslim racism of the tabloids, creates a deadly climate of complacency towards abuse.

Related links

Detention without trial in all but name – IRR News report

Campaign Against Criminalising Communities

Frances Webber is a leading immigration barrister and a member of the Campaign Against Racism and Fascism.

The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.

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