One of the delights of the “War against [insert appropriate abstract concept]” is the diminution of general civil liberties that the naive among us used to take for granted – because to fight for liberty against terror and all it stands for, we must give up, eh, liberty.
One of the most shameful aspects of this is the Special Immigration Appeals Commission, where those facing deportation on grounds of national security are tried. SIAC hears cases in private with the reasons for the proposed deportation, and the evidence supporting it, kept secret from the proposed deportee. The evidence is secret because it comes from the security services and if a deportee knew about the evidence then this creates a security risk. That a deportee does not know the case against him or her and accordingly cannot adequately prepare a defence to respond to that case is an unfortunate side effect – Kafkan in nature. The defence is prepared by a court appointee, a special advocate (who has been vetted by the sceurity services), who can see all of the evidence but cannot reveal it to the accused or the accused’s personal legal team. The special advocate challenges the evidence without reference to the client (meaning that the usual rules of burden of proof and such like are out of the window) then a secret ruling is issued taking into account all of the factors raised – while the accused is informed of the decision without detailed reasons. Bizarrely the accused is given a right to appeal on a point of law (how do they know on what basis they can appeal if they don’t have a full ruling?). Already SIAC has been considered in the House of Lords when seven judges considered whether evidence obtained by torture could be presented to SIAC (and if not who had to prove it had been obtained by torture…)
And SIAC facilitates detention without trial – although was prevented from doing so indefinitiely in relation to foreignh nationals by the House of Lords in another case.
But, this is all right, because we know (after Hutton) our security services don’t make mistakes, and this is helping us defeat the great abstract concept.
Well, the problems in the system have been exposed by a case reported in the news today – but decided months ago. When the spooks give evidence they might be giving contradictory evidence on the same matter to different SIAC hearings, and being in camera it’s difficult to tell if that’s the case. One instance has been picked uop because the same barrister appeared in the cases where contradictory evidence was given. Apparently, this error wasn’t deliberate but was human error and steps are being taken to ensure that it doesn’t happen again.
That this passes with scarcely a mention in the media, that SIAC can continue to operate with little comment, that the government looks likely to bring back proposals to extend the detention period before someone must be charged in Terrorism related offences, that fundamental principles which serve to protect all are being undermined continually, worries me. And this from a government filled with lawyers.
As Lord Hoffman said in A v Home Secretary in 2004
“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. “
And Lord HOpe said
“It is the first responsibility of government in a democratic society to protect and safeguard the lives of its citizens. That is where the public interest lies. It is essential to the preservation of democracy, and it is the duty of the court to do all it can to respect and uphold that principle. But the court has another duty too. It is to protect and safeguard the rights of the individual. Among these rights is the individual’s right to liberty.
“It is impossible ever to overstate the importance of the right to liberty in a democracy. In the words of Baron Hume, Commentaries on the Law of Scotland respecting Crimes, 4th ed (1844), vol 2, p 98:
- “As indeed it is obvious, that, by its very constitution, every court of criminal justice must have the power of correcting the greatest and most dangerous of all abuses of the forms of law, – that of the protracted imprisonment of the accused, untried, perhaps not intended ever to be tried, nay, it may be, not informed of the nature of the charge against him, or the name of the accuser.”"