JUSTIC FOR THE NORTH WEST STUDENTS

Yesterday’s decision by the Special Immigration Appeals Commission (Siac) that two Pakistani students allegedly involved in an al-Qaeda plot cannot be deported to their home country, Pakistan, has ignited a debate on human rights and civil liberties.

The Home Office circulated a factsheet (click here to read) shortly after the decision and this morning held a briefing on the judgement in which senior Whitehall sources outlined their conviction that the two individuals concerned, Abid Naseer and Ahmed Faraz Khan, were engaged in alleged terrorist activity.
The ruling and the government’s subsequent response have raised a number of issues.
Secret Evidence
The first issue pertains to the fact that these men are ‘alleged’ to have been party to a plot to carry out a terrorist attack in north-west England. On the matter, Craig Murray writes:
‘The truth is that there is no evidence to convict Abid Nasser of anything. What they have is intelligence reports from Pakistan, certainly obtained under torture, and a communications intercept in which Abid Naseer talked of a wedding.’
He adds:
‘…the students arrested had no bombs, no weapons and possessed nothing at all connecting them to terrorism. The police announced they had found “a potential component of a bomb”. It turned out that this was less than a quarter of a kilo of sugar in the kitchen.’
The defendants have been labelled terrorists on the basis of ‘secret evidence’ presented by the security services, who maintain that talk of a ‘wedding’ is code for a bombing. Neither man (Naseer and Khan) was allowed to see the evidence upon which the court reached its decision, nor was their solicitor. Consequently, Murray maintains that:
‘An innocent man is branded a terrorist by the security services, with no evidence that can be put before a jury. The media all then repeat it to ramp up the fear factor.’
What is most disturbing about this case is that it given the accused party was denied the opportunity to respond to the evidence presented against him, Justice Mitting announced that he was ‘satisfied that Naseer was an Al Qaeda operative who posed and still poses a serious threat’ to Britain’s national security. Paragraph 15 of the judgment states:
‘Although we cannot set out our reasoning in this open judgement, we can set out our conclusion: there are pointers to an imminent attack…’
Notice here, the substitution of the word ‘pointers’ in the place of ‘evidence.’ The use of the word ‘pointers’ indicates a low threshold of evidence required to arrest someone on terrorism offences.
The second concern this paragraph raises relates to the controversial secretive manner in which Siac has arrived at its judgement. Amnesty International has previously said the commission’s judgments rely on a ‘shockingly low burden of proof’ as evidence is not examined to the same standards as it would in criminal courts.
Lib-Con coalition faces its first real challenge
Siac’s decision has ignited discussion in the policy community about the future of the Human Rights Act (HRA) with the BBC reporting that a ‘commission’ is to be set up to ‘review’ the HRA, which in 1998 incorporated fundamental rights outlined in the European Convention of Human Rights into UK law. These, as the BBC mentions, ‘…include the right to life, the right to family, freedom from torture and the right to a fair trial.’
The Conservatives have pledged to replace the HRA with a British Bill of Rights, a move that is opposed by Nick Clegg who has stated: ‘Any government would tamper with it [the HRA] at its peril.’ Moreover, the Liberal Democrat manifesto promised to ‘ensure that everyone has the same protections under the law by protecting the HRA.’ The diametrically opposed position of the two coalition partners on the HRA has given rise to much speculation around how the government will reconcile the irreconcilable. This morning, Theresa May said that ‘no decision’ had yet been reached on how to address the issue.
The challenge is how to reconcile the need for public safety and security whilst adhering to the requirements of Article 3 of the European Convention on Human Rights, which states: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
But, as the BBC’s political Nick Robinson points out: ‘Even if Britain replaced the Human Rights Act with a Bill of Rights we would … still be subject to the European Convention of Human Rights (ECHR).’
So what options does that leave the government with? Alex Bailin, in the Guardian’s Comment is free writes:
‘There will be a formal independent review of the operation of the HRA. Depending on its conclusions, that might make it easier for the Conservatives to swallow the HRA retention pill. Obviously a bill of rights that merely replicated the HRA would be a pointless rebranding. And if it genuinely enhanced the HRA, then why not simply build separately upon the HRA’s perceived inadequacies rather than dismantling a delicate legal structure that has just started to bed down properly?
One thing is clear: there can be no dilution of or disguised derogation from the European convention without formally pulling out of the council of Europe. Whatever compromises the coalition has reached about Europe, that cannot realistically be one of them. So any domestic tinkering with the Human Rights Act that resulted in less rights than those already guaranteed by the convention would simply force victims to seek redress in Strasbourg rather than in the domestic courts. That would be gesture politics of the worst kind.’
Control Orders
As the government deliberates on the future of the HRA, Shami Chakrabarti, director of Libery, today warned against Theresa May being ‘captured by the securocrats’ of Whitehall who she argues, since 9/11, have sanctioned policies such as ‘control orders.’ The controversial policy of house detention will test the Liberal Democrats, who have consistently pointed out the ineffectualness of the control orders with Chris Huhne, then party chairman, declaring in 2009 that they are an ‘affront to British justice.’
Chakrabarti goes on to say:
‘If the two men from yesterday’s hearings are truly dangerous, then bring them before a jury and, if convicted, jail them. Simply expelling a dangerous suspect from our jurisdiction is hardly a smart security move in an age of aircraft and e-mails. And if we deport him with a view to his being met off the plane by less “human-rights-friendly authorities” it’s called “extraordinary rendition”. Both the Conservative and Liberal Democrat front benches called for an independent inquiry into this shameful practice while in opposition — they have also both publicly opposed the control order regime.
There simply is no shortcut, no substitute for charges, evidence and proof in these cases. We need to return to core values and the law, not the War on Terror. Even the special commission acknowledges that its decision that these men were a security risk to Britain was “based substantially or, in some instances determinatively” on “closed material” — that’s secret intelligence, unseen by the suspects and their lawyers.
Much of the suspicious material that we have all seen in this most recent case comes in the form of personal e-mails. Intercepted e-mails, like phone calls, can be used in the special commission but are completely inadmissible in criminal proceedings. Once more, Conservatives and Liberal Democrats in opposition were united in fighting to end this anomaly. Together they must hold their nerve and take on the bureaucratic interests who helped lead their predecessors astray.’
We await with anticipation whether the Lib-Con government will honour the pledges they made in opposition.