http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/03/09/nterr109.xml
Terror law defeat will not mean freedom for suspects
By Philip Johnston, Home Affairs Editor
(Filed: 09/03/2005)
Foreign suspects detained under special powers will remain in prison
if the Government fails to get its Prevention of Terrorism Bill
through Parliament this week.
Although the powers expire on Sunday, Charles Clarke, the Home
Secretary, has tabled a statutory instrument in the Commons to extend
them for another nine months as a fall-back position in case he loses
the new Bill in the Lords.
Some of the detainees may be bailed under conditions set by the
Special Immigrations Appeals Committee (Siac), which keeps the powers
under review.
The Government has sought to suggest that a refusal by Parliament to
pass the new Bill containing control orders will place the country at
risk from terrorists who might otherwise be walking the streets.
But if the Bill is rejected, the 10 suspects jailed in Belmarsh - or
under strict bail conditions amounting to house arrest - will remain
in detention.
If the Bill is passed, they will be subject to control orders that
stop short of detention.
The order, tabled by Mr Clarke under the Anti-terrorism, Crime and
Security Act 2001, would renew its controversial detention powers for
another nine months even though these have been ruled unlawful by the
law lords.
It would allow a suspected international terrorist to be detained
under the Immigration Act 1971 ''despite the fact that the person's
removal from the United Kingdom is prevented by a point of law
relating to an international agreement or a practical consideration''.
After the general election that is expected on May 5, the Government
would then have to return to the new parliament with further
legislation. This will be needed, whichever party wins, as the 2001
Act - introduced after the September 11 atrocities in America -
expires in November next year.
Mr Clarke has indicated that new offences may be brought forward that
would make it easier to prosecute suspected terrorists or their
supporters without recourse to the executive action that has proved so
controversial.
This could include an offence of ''acts preparatory to terrorism''
that would be easier to prove in court than a full-scale terrorism case.
Britain could adopt some of the laws in other countries, such as the
French offence of "associating with a wrongdoer", which is used to
detain and prosecute terrorist suspects. It allows a specialist judge
to order the indefinite detention of a suspect before prosecution.
In the long-run Mr Clarke has indicated he would prefer to abandon the
centuries-old adversarial system of justice in terrorism cases.
Some ministers favour the French system, where examining magistrates
can order the detention of suspects for up to four years while charges
are investigated and where trials are inquisitorial in nature rather
than adversarial. Diplock-style courts, which operate in Northern
Ireland terrorist cases without juries, could be another option. Such
a reform would also change the rules of evidence disclosure, which is
the principal barrier to the Government's agreeing to allow telephone
tapping evidence to be used in courts.
If the Government uses its fall-back position and keeps its detention
powers it will remain in conflict with the European human rights
convention. Although Britain has derogated from Article 5 which
forbids detention without trial, that opt-out has been ruled unlawful
by the law lords on the grounds that it is discriminatory - because it
only applies to foreigners - and disproportionate to the current
threat. But although under the Human Rights Act, which incorporated
the convention into UK law, the courts can make a declaration that the
powers are unlawful, only parliament - which is sovereign - can
actually repeal the legislation.
The simplest solution to deal with foreign nationals deemed to be a
threat to the nation is to deport them; but Article 3 of the human
rights convention, from which it is not possible to derogate, has been
interpreted in such a way by the British courts that the Government is
prevented from sending someone to a place where they might face
torture or worse.
The peculiarity of the current regime is that the detainees are free
to leave the country at any time they wish, as two have done.
Furthermore, despite the apparent restriction under the European Human
Rights Convention, France deports suspected terrorists to Algeria,
Jordan and Egypt.
The Foreign Office has been in talks with the home countries of some
of the nationals and is seeking cast-iron guarantees that if any are
repatriated they will not be maltreated. No agreements have yet been
reached.
The only other alternative is to release people whom the Government
has deprived of their liberty for three years on the grounds that they
pose a danger to the nation.
Those still in custody include Abu Qatada, a fundamentalist cleric
regarded as Osama bin Laden's ''European ambassador'' who was
described by Siac as ''a truly dangerous individual'' with evidence
that he "has been concerned in the instigation of acts of
international terrorism".
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