Published on Friday, December 17, 2004 by the Guardian/UK
Judges' Verdict on Terror Laws Provokes Constitutional Crisis
by Clare Dyer, Michael White and Alan Travis
A scathing law lords judgment condemning the indefinite detention of foreign terror suspects as a threat to the life of the nation left anti-terrorist laws in tatters yesterday.
The ruling by an 8-1 majority held that the indefinite detention without trial at Belmarsh, and Woodhill high security prisons was unlawful under the European convention on human rights (ECHR).
Constitutional lawyers called it one of the most important decisions from Britain's highest court in 50 years.
But 24 hours after David Blunkett, the law's sponsor, was forced to resign as home secretary, Downing St and the new home secretary, Charles Clarke decided to tough it out. They would study the judgment - but made it plain they are more likely to renew the controversial laws than modify them.
Lord Hoffmann, ruled that there is no "state of public emergency threatening the life of the nation"- the only basis on which Britain is entitled to exercise its opt-out from article five of the European convention, the right to liberty.
It was the anti-terror laws introduced by Mr Blunkett which posed a threat, he declared. "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 judgment adds to the clutch of election-sensitive law and order problems in Mr Clarke's in-tray. No 10 signalled it is "clearly minded to renew it" and Mr Clarke chose to stress continuity with Mr Blunkett's policies.
On Channel 4 News Hazel Blears, the police minister, said judges who authorised detentions had seen intelligence data which the law lords did not. "This is a matter for parliament to decide" in line with the European convention. "Our over-riding concern is the protection of this nation."
Sixteen Muslims have been detained under the anti-terror legislation, with 10 still held in Belmarsh, south-east London, and Woodhill, Bucks, and one in Broadmoor mental hospital. They are certified as "suspected international terrorists".
The law lords ruling said the state should decide whether a state of emergency existed. But they argued that the government's response breached the human rights convention because it went further than required.
It was a disproportionate interference with liberty and equality and unlawfully discriminated against foreigners because British terror suspects thought to pose a similar risk cannot be locked up without charge or trial.
Lord Scott described the regime under which suspects can be detained indefinitely on the say-so of the home secretary with no right to know the grounds for detention as "the stuff of nightmares, associated with France before and during the revolution, with Soviet Russia in the Stalinist era, and now associated, as a result of section 23 of the 2001 Act, with the United Kingdom".
The judgment does not oblige the government to release the detainees immediately, but under the Human Rights Act the government must take steps soon to remedy the situation. These could include legislation - for example, making evidence obtained from telephone tapping admissible in a criminal court - which would make it easier to try detainees.
Another option would be measures allowing them to be released under constant surveillance and monitoring.
Mr Clarke is expected to produce new proposals in the new year and until then the detainees will remain in Belmarsh and Woodhill prisons.
Gareth Peirce, solicitor for eight detainees, commented: "The government has to take steps to withdraw the legislation and release the detainees."
The judgment puts Mr Clark under huge pressure to devise a solution or face the prospect of more embarrassing court defeats in the run-up to the general election.
The detainees' solicitors could take the case to the European court of human rights in Strasbourg if the government drags its heels. Lawyers said another possibility was an application in the English courts for a declaration that it was unconstitutional for the home secretary to continue to detain the men in breach of a house of lords ruling.
The case was heard by an al most unprecedented panel of nine law lords, instead of the usual five, because of its constitutional significance.
The attorney-general, Lord Goldsmith, who argued the case for the government, had tried to persuade the judges that they were "undemocratic" and should defer to the will of elected representatives.
Jeffrey Jowell, professor of public law at University College London, said: "It establishes that, even where the government claims national security is an issue, the court has authority to delineate the proper boundaries of a rights-based democracy."
© Guardian Newspapers Limited 2004