Law Review: Troop abuses – Counter terror – Torture – Civil liberties review

UK troops face 90 new claims of abuse in Iraq

The Observer: A special unit of military investigators and former detectives is to look into complaints of ill-treatment

A specialist team appointed by the government to investigate claims of abuse by British troops in Iraq has received 90 complaints involving 128 Iraqi civilians. The files, relating to allegations between March 2003 and July 2009, have been sent to Geoff White, a former head of Staffordshire CID, who heads the Iraq historic allegations team.

Unpalatable though it may be for some, at a time when men and women are serving in Afghanistan and losing their lives so that we may enjoy security and our freedoms, the investigation into abuse and possible breaches of the Geneva Convention et al  by our troops is essential if we are to operate by the values and mores which we have signed up to and the laws our country operates by.  It may well be that some claims are ill founded or may even be fraudulent – but the investigation must be open and transparent so we can be sure that armed conflict is conducted according to international law.

To those who say that the Human Rights Act is inhibiting our country – please permit me to paraphrase the thoughts of Lord Bingham, a former senior law lord, who asked in response to this issue – which human rights would you like not to have?

MI6 chief: we have nothing to do with torture

Guardian: Sir John Sawers talks of dilemma between protecting Britain and using intelligence drawn from tortured terrorist suspects

“If we know or believe action by us will lead to torture taking place, we’re required by UK and international law to avoid that action, and we do, even though that allows that terrorist activity to go ahead.”

Sir John Sawer, ‘C’, MI6

There are some who say that evidence gained through torture is, in any event, suspect.  I cannot comment on that, but given that these comments are made by men and women who have experience in counter-terror and government, they indicate the dilemma.  Sir John Sawers did admit that it would be wrong not to investigate or use information obtained from other sources where torture may have been deployed.  His concern that the judges are putting secret information at risk in their quest to ensure our country’s compliance with human rights and international law is, however, more questionable.  I cannot imagine that the senior judiciary would wish to see secret operations compromised. Citing the Binyam Mohammed case – where evidence of torture was disclosed -  is  not a fair criticism of the judiciary.  This was information, if I recall correctly, which had already been disclosed in the United States?

The fierce battle behind the scenes for the coalition’s soul

Observer: A raging argument over counterterror laws is putting their commitment to human rights to a crucial test

Andrew Rawnsley, writing in The Observer today, raises a number of important issues.  The article is worth reading in full if you have not had time to do so.

Rawnsley writes: “In the headlines, the thwarting of a transatlantic terror plot. Playing out behind the scenes in Whitehall, a story that the government doesn’t want you to read. An intense internal battle is being waged over how to respond to terrorism without compromising fundamental principles of justice and civil liberties. It is dividing the intelligence services, splitting the cabinet and has left David Cameron and Nick Clegg in a state of alarmed semi-paralysis. It is a big test of the unity of their partnership, their leadership mettle and their willingness to honour the promises they made in opposition.”

The Tories and Lib-Dems in coalition are committed, in theory at least, to repealing some of the more oppressive laws and roll back the undoubted erosion of civil liberties which happened under 13 years of Labour government.  Control orders is one issue.  Detention without trial is another issue.  Jonathan Evans, the Head of MI5,  wants to keep the present 28 day period and control orders.  Interestingly, his predecessor, Dame Eliza Manngham-Buller, was sceptical of control orders and ‘downright hostile to extended detention without charge’

Lord McDonald QC, a former DPP, was asked to review the laws on these and other issues. The review has gone to ministers with the recommendation that control orders should be retained. It proposes that detention without charge should be reduced to 14 days, but with an option for suspects to be put on a further 14 days of “very restricted bail”, which would introduce the control order concept into another part of the law.

Rawnsley notes “The review’s conclusions were supposed to have been made public at the end of September. Then publication was kicked back to the end of October. That is because weeks of fierce internal argument have resulted in deadlock. Lord Macdonald has not changed his views. He recently warned the home secretary that he will write a dissenting report.”

Theresa May, home secretary,  with ‘no history of engaging in the delicate judgments the role demands’ has sided with MI5.

She knows it will be hugely embarrassing for the government if it publishes their recommendations only for Lord Macdonald then to denounce them. Ms May went to Number 10 a fortnight ago for a difficult meeting with David Cameron and Nick Clegg. When she revealed that they had hit this impasse, both men were horrified. David Cameron told the meeting: “We are heading for a fucking car crash.”

Will the Coalition be brave enough to roll back the oppressive laws?  It is a difficult call. Interestingly, the 28 day period has only been activated three times and Rawnsley observes…“In one case, the charges were dropped; in a second, the accused was acquitted on the direction of the judge; in the third, the accused was acquitted by the jury. It is another draconian provision which corrodes Britain’s reputation for justice while offering no palpable advantage in the struggle against terrorism. Even some of the architects of this legislation are repenting. Tony McNulty, security minister in the last government, now says that control orders and 28-day detention should be scrapped.”

***

UPDATE….

Theresa May rebukes Lord Macdonald over control orders intervention

Observer / Guardian: Row comes as Chris Huhne says keeping orders for terror suspects would undermine key British values

The home secretary, Theresa May, today rebuked the man she appointed as the external supervisor of the review of counter-terrorism laws amid reports that David Cameron fears it is heading for a “car crash”.May made it clear that the role of Lord Macdonald, a former director of public prosecutions and now a Liberal Democrat peer, in overseeing the internal Home Office review was restricted to ensuring that it was being done properly, saying decisions on the outcome were for ministers alone.

Possibly not the most sensible statement Theresa May could have made?  We shall see what is in her mind when she makes her opinion known later in the week.

4 thoughts on “Law Review: Troop abuses – Counter terror – Torture – Civil liberties review

  1. which human right would I like not to have? The “human rights” developed by judges. The “human rights” Carl Gardner (whose voice bears an uncanny resemblance to Terry Christian’s) notes the Euro Court delineated in Hirst.

    For all the blah blah about the “rule of law”, we call it the separation of powers – no one branch should have more power than the others. Even in the UK, where Parliament is supposedly supreme, the Judiciary, by way of Europe, attempt to go beyond separate but equal and trump legislation.

    The matter is also relevant with regard to complaints re human rights violations by soldiers in the battlefield. Soldiers in the US have been hung out to dry by JAG officers applying civilian rights norms in court martials. I am happy for troops to be dealt with under Geneva – but the HRA and the ECHR don’t run to the battlefield.

    And I don’t give a damn what some Euro judge has to say about it – because it’s not their job and outside the scope of their powers.

  2. “Which human rights would you like not to have?” Of course for the most part the great majority of the UK population won’t worry too much about this, as the sort of petty ways in which the State intrudes into their behaviour are not, in general, those that concern the human rights activists.

    Context is all on these things. Human rights are rarely, if ever, absolute. For instance we remove the right to life (surely the most important) whenever the State takes part in war or uses potentially lethal force. People lose their right to liberty when they are deemed to break the law on serious enough grounds. We also compromise rights to free expression, to freedom of association, sometimes because they conflict with other rights, sometimes for social policy reasons.

    The issue is surely not “which human rights would you like not to have?”, but under what circumstances. and to what extent, should human rights be compromised?

    The decisions that are made over where these fine value judgements are made are in the realms of judges interpretations of the relative merits of arguments. Different judges, different times and different circumstances will often result in different outcomes. Those interpretations, once set, are not readily amenable to a different sense of justice that might prevail among the population. All right and good that unpopular decisions have to be made at times – I’m not a believer in mob rule, but then I’m also concerned about issues of democratic accountability.

    I think the issues and the judgements to be made are much more uncertain in outcome than many pretend.

    ps. worth saying that many people find it particularly troublesome to find that the country is essentially forced into providing safe havens for those that would not support those very values that provide the protection. I think there is an argument for such safe havens, but with constraints. I’m not sure how that could be done, but there is such a thing as an unwelcome guest.

  3. Steve – Thank you for posting a very precise comment on the issue. It is a very difficult issue and the ‘compromised’ point you put is pragmatic and ‘realpolitik’ ?

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