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Thursday, 11th June 2009

The English judiciary has now pretty well completed its attempt to destroy altogether Britain’s ability to defend itself against terrorism.

First, it used ‘human rights’ law to prevent Britain from deporting foreign terrorist suspects on the grounds that just about everywhere on the planet would treat them badly. To protect the public while such suspects were in legal limbo, the government tried to lock them up.

The courts then ruled that this went against their human rights too, since it treated foreign suspects differently from British ones and was therefore ‘discriminatory’. The fact that of course British suspects wouldn’t be treated like this because British suspects would not potentially be deported, and the fact that it could hardly be discriminatory to say that British citizens had different rights in Britain from foreign nationals, was deemed to be irrelevant. Universal human rights were universal and to hell with the meaning of citizenship. I extrapolate, but you get the drift.

To protect Britain from such suspects who could neither be thrown out of the country nor locked up, the government in desperation then invented ‘control orders’ under which suspects would remain in their own homes under conditions of varying (and arguably inadequate) degrees of restriction. Yesterday the inevitable happened and the Law Lords ruled unanimously that control orders were a breach of the suspects’ right to know the crime of which they were charged, a fact concealed from them in such cases on the grounds that they might be able to work out from such information the identity of the informants who had led the police and security service to them and thus compromise intelligence operations.

One of the Law Lords, Lord Hope, said that although the first duty of the government was to ‘protect and safeguard the lives of its citizens’ and the court had a duty to ‘do all that it can to respect and uphold that principle’, the court also had a duty to ‘protect and safeguard the rights of the individual’. By their ruling, the Law Lords made it clear that the rights of the individual thus trumped the rights of citizens to be protected from terrorism.

Tellingly, though, although the decision of this panel was unanimous, Lord Hoffman, made it clear that he was agreeing only reluctantly. On the guts of the issue, he was very clear: although in general suspects should know the charges against the, this could not be allowed to jeopardise national security. A previous ruling by the European Court of Human Rights which had gone against this principle was wrong. But he found to his dismay that that ruling now bound the English courts:

I think that the decision of the ECtHR was wrong and that it may well destroy thesystem of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit...

...The particular procedures which have to be followed to make a hearing fair cannot in my opinion be stated in rigid rules. Ordinarily it is true that fairness requires that an accused person should be informed of all the allegations against him and the material tendered to the tribunal in support. The purpose of the rule is not merely to improve the chances of the tribunal reaching the right decision (by giving the accused an opportunity to explain or contradict any such allegations or material) but to avoid the subjective sense of injustice which an accused may feel if he knows that the tribunal relied upon material of which he was not told.... But when disclosure is contrary to the public interest, it is necessary to think more carefully and ask whether in all the circumstances it would really be unfair not to tell the applicant or accused.

... There are practical limits to the extent to which one can devise a procedure which carries no risk of a wrong decision. It is sometimes said that it is better for ten guilty men to be acquitted than for one innocent man to be convicted. Sometimes it is a hundred guilty men. The figures matter. A system of justice which allowed a thousand guilty men to go free for fear of convicting one innocent man might not adequately protect the public. Likewise, the fact in theory there is always some chance that the applicant might have been able to contradict closed evidence is not in my opinion a sufficient reason for saying, in effect, that control orders can never be made against dangerous people if the case against them is based ‘to a decisive degree’ upon material which cannot in the public interest be disclosed. This, however, is what we are now obliged to declare to be the law.

And so, thanks to ‘human rights’ law, Britain today is even less safe from terrorism than it was.