On the application of Gareth Peirce, one of the bravest civil liberties lawyers in the land, backed by "Liberty", the civil liberties union, the law lords in the UK have ruled the government's indefinite detention of 9 foreigners without trial on suspicion of terrorism is incompatible with the Human Rights Act and the European Convention of Human Rights.
Although couched in ancient and majestic language the most revolutionary phrases came from Lord Hoffman and they weld the best of the British tradition to that of the best of the European. As you read it, remember what is at stake are not the lives of thousands, caught up in a catastrophe, but the lives of 9 foreigners, and what Lord Hoffman redefines as the "life of the nation", that will not be subordinated to the politics of fear.
And remember Engels to Schmidt Oct 27 1890
"As soon as the new division of labour which creates professional lawyeres becomes necessary, another new and independent sphere is opened up which, for all its general dependence on production and trade, still has also a special capacity for reacting upon these spheres. In a modern state, the law must not only correspond to the general economic condition and be its expression, but must also be an internally coherent expression which does not, owing to inner contradictions, reduce itself to nought. And in order to achieve this, the faithful reflection of economic conditions suffers increasingly."
Lord Hoffman was also one of the three law lords who granted the application of the eccentric Spanish judge Baltazar Garzon, against Pinochet 6 years ago. http://www.wsws.org/news/1998/nov1998/pin-n28.shtml
These struggles are part of the Gramscian struggle for ideological hegemony, in Britain, in Chile, in Europe and in the world.
They will succeed.
Chris Burford London
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Lord Hoffman 91. What is meant by "threatening the life of the nation"? The "nation" is
a social organism, living in its territory (in this case, the United Kingdom)
under its own form of government and subject to a system of laws which
expresses its own political and moral values. When one speaks of a threat to
the "life" of the nation, the word life is being used in a metaphorical sense.
The life of the nation is not coterminous with the lives of its people. The
nation, its institutions and values, endure through generations. In many
important respects, England is the same nation as it was at the time of the first
Elizabeth or the Glorious Revolution. The Armada threatened to destroy the
life of the nation, not by loss of life in battle, but by subjecting English
institutions to the rule of Spain and the Inquisition. The same was true of the
threat posed to the United Kingdom by Nazi Germany in the Second World
War. This country, more than any other in the world, has an unbroken history
of living for centuries under institutions and in accordance with values which
show a recognisable continuity.
92. This, I think, is the idea which the European Court of Human Rights
was attempting to convey when it said (in Lawless v Ireland (No 3) (1961) 1
EHRR 15) that it must be a "threat to the organised life of the community of
which the State is composed", although I find this a rather dessicated
description. Nor do I find the European cases particularly helpful. All that can
be taken from them is that the Strasbourg court allows a wide "margin of
appreciation" to the national authorities in deciding "both on the presence of
such an emergency and on the nature and scope of derogations necessary to
avert it": Ireland v United Kingdom (1978) 2 EHRR 25, at para 207. What
this means is that we, as a United Kingdom court, have to decide the matter
for ourselves.
93. Perhaps it is wise for the Strasbourg court to distance itself from these
matters. The institutions of some countries are less firmly based than those of
others. Their communities are not equally united in their loyalty to their values
and system of government. I think that it was reasonable to say that terrorism
in Northern Ireland threatened the life of that part of the nation and the
territorial integrity of the United Kingdom as a whole. In a community riven
by sectarian passions, such a campaign of violence threatened the fabric of
organised society. The question is whether the threat of terrorism from
Muslim extremists similarly threatens the life of the British nation.
94. The Home Secretary has adduced evidence, both open and secret, to
show the existence of a threat of serious terrorist outrages. The Attorney
General did not invite us to examine the secret evidence, but despite the
widespread scepticism which has attached to intelligence assessments since
the fiasco over Iraqi weapons of mass destruction, I am willing to accept that
credible evidence of such plots exist. The events of 11 September 2001 in
New York and Washington and 11 March 2003 in Madrid make it entirely
likely that the threat of similar atrocities in the United Kingdom is a real one.
95. But the question is whether such a threat is a threat to the life of the
nation. The Attorney General's submissions and the judgment of the Special
Immigration Appeals Commission treated a threat of serious physical damage
and loss of life as necessarily involving a threat to the life of the nation. But in
my opinion this shows a misunderstanding of what is meant by "threatening
the life of the nation". Of course the government has a duty to protect the lives
and property of its citizens. But that is a duty which it owes all the time and
which it must discharge without destroying our constitutional freedoms. There
may be some nations too fragile or fissiparous to withstand a serious act of
violence. But that is not the case in the United Kingdom. When Milton urged
the government of his day not to censor the press even in time of civil war, he
said:
"Lords and Commons of England, consider what nation it is
whereof ye are, and whereof ye are the governours"
96. This is a nation which has been tested in adversity, which has survived
physical destruction and catastrophic loss of life. I do not underestimate the
ability of fanatical groups of terrorists to kill and destroy, but they do not
threaten the life of the nation. Whether we would survive Hitler hung in the
balance, but there is no doubt that we shall survive Al-Qaeda. 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.
Terrorist violence, serious as it is, does not threaten our institutions of
government or our existence as a civil community.
97. For these reasons I think that the Special Immigration Appeals
Commission made an error of law and that the appeal ought to be allowed.
Others of your Lordships who are also in favour of allowing the appeal would
do so, not because there is no emergency threatening the life of the nation, but
on the ground that a power of detention confined to foreigners is irrational and
discriminatory. I would prefer not to express a view on this point. I said that
the power of detention is at present confined to foreigners and I would not like
to give the impression that all that was necessary was to extend the power to
United Kingdom citizens as well. In my opinion, such a power in any form is
not compatible with our constitution. 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. That is
the true measure of what terrorism may achieve. It is for Parliament to decide
whether to give the terrorists such a victory.
http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/16_12_04_detainees.pdf
