Khalid Smythe from Uconstituted On Red www.gerardkeegan.co.uk welcomes a new face to our Community Law pages. Khalid Smythe is a final year LLB law student at the University of London. He hopes to graduate this year and then attend the Bar. What this means for readers not conversant with English Law is that he intends becoming a barrister, the equivalent of which in Scotland is an advocate. Khalid has his own website called Uconstituted On Red which can be found at http://unconstitutedonred.blogspot.com/ We highly recommend it! On the unconstitutional detention of terror suspects. The words 'constitutional crisis' have rung through the papers the past few months, and for good reason. The Human Rights Act (HRA) came into force in October 2000, with the aim of guaranteeing UK residents certain freedoms and rights under the European Convention of Human Rights (ECHR). At the level of the state these rights are then balanced proportionately against national interests, and in some circumstances, a putting aside of human rights is allowed in contemplation of a greater, necessary good. So what went wrong with the incarceration of terror detainees held at Belmarsh? The Terrorism Act (TA) is a prime example of when the HRA can work against the state in protecting it's citizens - Art 6, the right to a fair trial can lead to sensitive information being disclosed in open court; Art 10, freedom of expression can lead to the press publishing sensitive information that could then jeopardise our intelligence agencies. The Home Secretary can recommend that a terror suspect be held under the TA; which the last Secretary of State at the Home Office, David Blunkett, did with at least 11 men. Charles Clarke, on becoming Home Secretary found his Government's position illegal when a bench of nine Law Lords ruled 8-1 that suspects held in Belmarsh were deprived of their rights to a fair trial. Further that they were discriminated against under Art 14 as the TA only applied to foreign nationals, and that they should no longer be detained at Belmarsh. Yet some of the men are still there today. One suspect, known only as G has been released on house arrest, and last week Charles Clarke took him before the Special Immigrations Appeal Court in a secret hearing to have him returned to Belmarsh. The defence was not allowed to hear the evidence and was only able to speculate as to what the evidence was, and then formulate a defence around that assumption! This is an aberration. G rightly won his case, as the Home Secretary could not show that he had breached any of the conditions of his house arrest despite presenting unknown intelligence against him. Other detainees have declined to be released under house arrest as they, and Amnesty International, argue that this is merely replacing one detention without a fair trial with another. Several detainees are in the process of putting together a case to be heard before the European Court of Human Rights. In anticipation Clarke has said he will look at the Law Lords judgement carefully and will be recommending modified legislation on the matter. Mr. Clarke studied Maths and Economics at Cambridge. Clarke's position is clearly to give the executive power to detain suspects regardless of the HoL's position, and human rights law. It is this tug of war between the executive and judiciary that troubles constitutional purists, and the public alike. The judiciary are trained and paid to judge, indeed that is their role. The executive's political tampering not only usurps the judiciary but also leaves the public feeling helpless to a secretive executive playing power games for reasons that only they know of, and aren't prepared to divulge. The Lord Chancellor speaking in London last Tuesday 8th February 2005 renewed his faith in a UK supreme court, dismissing the cost on grounds of benefit; and it is here, that the benefit would be seen most. A supreme court with a truly independent judiciary would be free from political tampering and would have the power to overrule primary legislation such as that Charles Clarke is hoping to pass in the lower chamber of the House of Commons. This will be no bad thing in my view. |
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