The Law Lords are scheduled to issue their ruling today (UPDATE: 16DEC04 11.15 GMT - ruling issued, see end of story) on the legality of such indefinite detentions without trial. These detentions are being compared to the detentions by the US at it base at Guantanamo Bay, Cuba; whilst there is some similarity, of course, there are important differences, too:
- all the detainees have the option of leaving the UK, rather than remain in detention, although of course this is not really an acceptable option given the likely consequences in the other country;
- the UK detainees are, however, being held within a clear framework of law (however flawed and misguided the laws being used may be) and have recourse to the highest judicial review that the UK can offer, as the current deliberations of the Law Lords amply demonstrate. This is absolutely not the case for those detained by the US at Guantanamo, a location chosen precisely because it is beyond the effective jurisdiction of the US legal system, despite efforts to have the actions of the US Administration sanctioned by the US Supreme Court.
The British government's position is far more complex and nuanced than that of its US counterpart. I accept readily that a country has the right to protect itself. I am also strongly in favour of compliance with the requirements of the ECHR (the European Court of Human Rights website homepage is here). It will be extremely interesting to learn how the Law Lords resolve this apparent conundrum.
UPDATE: (Thursday 16DEC04 11.15 GMT) The Law Lords have ruled in favour of the detainees by deciding that the detentions contravene human rights laws. Lord Nicholls of Birkenhead, in his ruling, said:
|"Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law.
"It deprives the detained person of the protection a criminal trial is intended to afford."
while Lord Bingham said that the rules surrounding the anti-terror legislation were incompatible with the ECHR as they allowed:
|"detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status".|
As is mentioned in the BBC article from which I take these quotes, the case was heard by a panel of nine Law Lords rather than the usual five because of the constitutional importance of the legal challenge. It is not yet clear what the government plans to do in the light of this important judgement.