The vitally important decision by the Law Lords that the government is acting illegally in detaining without trial foreign nationals suspected of terrorist involvement illustrates the woeful inability of this country to face up to the scale and nature of the terrorist threat.

This was particularly true of one member of the nine-strong panel, Lord Hoffman. Unlike Lord Bingham, who accepted that the UK was facing a ‘war or other public emergency threatening the life of the nation’ but disputed whether it was using the proper means to deal with it, Hoffmann asked whether Muslim extremism threatened the life of the British nation — as it had been threatened in the age of Elizabeth I, when Spain proposed to subject English institutions to the rule of Spain and the Inquisition — and concluded it did not.

This demonstrated a total failure to understand the nature of the Islamist threat to Britain and the west. Hoffmann thought this was even less fundamental a threat than IRA terrorism had been. But the intention to cause loss of life on a vast and unprecedented scale in itself makes Islamist terror different from conventional terrorism. And in addition, it is driven by the explicit aim to defeat western democracy and reinstitute the medieval Islamic empire that stretched halfway across the globe. This is not conventional terrorism: it is a war that has been declared on our values, a declared intention to destroy our way of life and subject it to Islam. Given the galvanising belief that everything that is not Islam is the sphere of evil and must therefore be obliterated, the threat to the life of this nation is surely obvious.

But not to Hoffmann.

‘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’

he said.

What an extraordinary thing to say. He thus implied that the major terrorist attacks we are told by the police have been thwarted were of less danger to the life of the nation than the law he was busy denouncing. But when a liberal society is attacked, it has to resort to illiberal measures to defend itself. Any nation faced with a major threat to its security and way of life is entitled to take steps to protect itself. On occasion, this may involve the temporary suspension of normal liberties in order to safeguard that way of life. This is indeed what happened during World War Two, when the government took powers to detain people on suspicion — of which Hoffman also seemed to disapprove.

Instead, he said:

‘Whether we would survive Hitler hung in the balance but there is no doubt that we shall survive al Qaeda’.

Oh yes? While people like Hoffman are in a position to cripple our defences, there’s plenty of doubt. Thank heavens he wasn’t around during the war, or we would quite possibly never have defeated the Nazi threat.

Even more bizarrely, he also cited the Madrid bombing to support his argument:

‘The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it’.

What on earth is this man talking about? What planet is he on? The response of the Spanish to the Madrid bombing was not a display of legendary pride. It was a supine capitulation to terror. The bombing made them change their government to one that would abandon its support for the US in Iraq. This was not so much a threat to the life of the nation as a blatant and successful attempt to suborn it and change its direction.

Nor was Hoffmann the only Law Lord on this panel with an alarmingly fragile grip on reality. Lord Scott declared:

‘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 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’.

So Britain is now like ‘Soviet Russia in the Stalinist era’? Hysteria, or what? Lord Scott should clearly have a little lie down in a darkened room. Does he have the remotest conception of what Stalinism was really like? How can a man capable of such a comparison be one of our most senior judges? And let us pinch ourselves — the terrorist suspects whom he is comparing to the victims of a totalitarian dictatorship are all free to leave prison immediately, provided they can find a country to take them. Two of them have indeed done so. The fact that no country will take the others, almost certainly because no country wishes to take in a suspected terrorist, is not Britain’s fault.

Moreover, the actual reasoning by which these Law Lords arrived at this judgment was also deeply inadequate. Their first argument was that locking up foreign Islamic terror suspects without trial is discriminatory, because there are also Islamic UK nationals who are terror suspects and who are not being locked up without trial.

The second argument is that locking suspects up without trial is a disproportionate response to the emergency that the country faces because it is ‘not rationally connected’ to the objective of preventing terror. Lord Bingham seemed to be particularly put out that the Attorney General had argued that the country’s security was properly a matter for the government rather than the courts. He also seemed obsessed by the fact that because the detained suspects were foreign nationals who were allowed to leave the country (a facility denied of course to victims of Stalin’s terror -- hello, Lord Scott) the detention provisions had muddled up immigration and security.

These points hardly seem to me to prove disproportionality — or am I missing something? But the Law Lords’ really bad argument, the one where they seem to have totally lost the plot, was over the key issue of ‘discrimination’. They compared foreign nationals and British nationals and decided that as the former were not being treated the same as the latter, this was unlawful discrimination.

But this is not to compare like with like. Foreign nationals do not have the rights or responsibilities of British citizens. Most pertinently, British nationals cannot be deported, nor once arrested are they free to move to another country. The foreign terror suspects are free to move to another country, and are only being held pending deportation. (The fact that the British government cannot deport them to countries which may ill-treat them, an impasse created by a particularly bone-headed judgment by the European Court of Human Rights, is an argument for withdrawing from the Human Rights Convention, not setting these suspects free).

To say that it is discrimination to treat suspects being held pending deportation differently from suspects who cannot be deported and cannot freely leave the country is grotesque. It amounts to the belief in ‘identicality’ — the curse of the age — which claims that only identical treatment is fair even if the circumstances are different. This produces in fact not fairness but gross injustice — and in the case of the terrorist threat to this country, a possibly lethal outcome.

The Lord Chief Justice Lord Woolf, whose judgment in this case in the Court of Appeal in 2002 has now been overturned by the Law Lords, seems to me to have absolutely got the point. He said:

‘The Secretary of State is not entitled to adopt an irrational approach, either under the Convention or at common law. He is required to point to an objective justification for adopting the distinction he is making. This he does here, in my judgment, on solid ground because of the distinction between aliens and nationals which is part of domestic and international law. As I have stressed, an alien’s right to reside in this country is not unconditional. True it is that the detainees cannot be deported, but that does not mean they are in the same position as nationals. They are still liable to be deported, subject to the decision of the Commission [Special Immigration Appeals Commission] on their personal circumstances, when and if this is practical.

‘However, contrary to the view of the Commission, I consider the approach adopted by the Secretary of State, which involves detaining the detainees for no longer than is necessary before they can be deported, or the emergency resolves, or they cease to be a threat to the safety of this country, is one which can be objectively justified. The individuals subject to the policy are an identifiable class. There is a rational connection between their detention and the purpose which the Secretary of State wishes to achieve. It is a purpose which cannot be applied to nationals, namely detention pending deportation, irrespective of when that deportation will take place.

‘The fact that deportation cannot take place immediately does not mean that it ceases to be part of the objective. This is confirmed by the fact that two of the detainees were able to leave this country. It is suggested that the action is not proportionate. However, I disagree. By limiting the number of those who are subject to the special measures, the Secretary of State is ensuring that his actions are proportionate to what is necessary. There is no alternative which the detainees can point to which is remotely practical’

(my emphasis).

This last point is the crunch. These foreign terror suspects cannot be tried, either because the evidence against them would compromise intelligence operations or because it would not meet the requirements of proof in a criminal trial. They cannot be deported, because the courts forbid deportation to countries which might harm them (thus making Britain a natural refuge for al Qaeda: a truly brilliant move by our judiciary and human rights establishment). And now they can’t be locked up either. Yet according to the government, they are too dangerous to be let out.

What a mess. The Law Lords’ dismissal of Lord Woolf’s sensible and principled reasoning seems to be little more than a spasm of fury against the government by a judiciary smarting from its confrontations with a Home Secretary who ironically walked the plank only a few hours before this judgment was published.

But buried in this inadequate judgment is one extremely valid and important point. We have no coherent and effective anti-terror legislation. A startling and terrifying statistic leaps out from Lord Bingham’s speech — that upwards of 1000 British nationals have been trained by al Qaeda in Afghanistan. That’s a hell of a lot of potential terrorists in this country — and they are at large. Even if every one of them is being watched round the clock, that is clearly inadequate. If they are not being arrested because of the procedural difficulties referred to above, then we need a new structure altogether to deal with this threat from both foreign and UK suspects.

Given the nature of the risk posed by Islamist terrorism to this country, we cannot afford to rest upon the risk assessment that underpins our normal criminal justice system. That requires a case to be proved beyond reasonable doubt on the basis that it is better for several guilty people to go free than for one innocent person to go to jail. But when the result of just one guilty suspect going free may be thousands, maybe hundreds of thousands of deaths caused by terrorists armed with weapons of mass destruction (yes, they very much exist) no society can afford to take such a risk.

And yet, of course, our principles of fairness and justice must be upheld. Personally, I would favour the establishment of special courts to resolve this conundrum, with specially vetted judges and lawyers and with special standards of evidence and proof, to try both UK and foreign terrorist suspects. I would also repeal our Human Rights Act and derogate from the International Human Rights Convention so that this country can again defend itself properly against threats to its well-being. The human rights culture, which has hijacked the moral high ground, is in my view a mechanism for restricting and denying basic rights and making them contingent upon the whims and prejudices of unaccountable judges — the kind who can’t tell the difference between a parliamentary democracy and Stalinism, or think that Islamist terror does not threaten the life of the nation. The human rights culture is actually a mortal enemy of life, liberty and democracy. The Law Lords’ judgment is but the latest example.

Posted by melanie at December 17, 2004