Will Britain’s Kafkaesque laws be changed?

Fahad Ansari

Jumada' al-Ula' 16, 1431 2010-05-01

News & Analysis

by Fahad Ansari (News & Analysis, Crescent International Vol. 39, No. 3, Jumada' al-Ula', 1431)

The recent British elections resulted in the defeat of the Labour Party government after 13 years in power and the emergence of a new Conservative-Liberal Democrats coalition, the first of its kind in over 30 years.

The recent British elections resulted in the defeat of the Labour Party government after 13 years in power and the emergence of a new Conservative-Liberal Democrats coalition, the first of its kind in over 30 years. For many on the Left, it was a day of mixed feelings, sorrow at the re-emergence of the Conservatives but also relief, largely perhaps due to a recognition that the Labour party which won a landslide victory in 1997 was a far cry from the Labour government which had steadily departed from its socialist roots. For it was this very government which led Britain into two unjust wars and which set about revoking civil liberties in a manner more akin to such police states as Burma, Egypt and Zimbabwe.

Using the rallying cry of “national security” and morally reprehensible scaremongering tactics, the Labour government introduced some of the most draconian legislation to be found in countries which count themselves among the liberal democracies of the world. Such policies include indefinite detention without charge, pre-charge detention for terror suspects for up to 28 days (outrageous attempts to increase this to three months were voted down), the introduction of biometric passports and identity cards, the detention and fingerprinting of children for immigration reasons, the use of control orders, the acceptance of evidence obtained through torture, prohibition of photographing police officers, severe restrictions on the right to protest and the use of secret evidence in shadowy courts to try and punish those suspected of being involved in terrorism.

The stench of these rotten fruits of the Labour government’s reign of power filled the atmosphere last month when the new coalition government was left to decide how to deal with the cases of two Pakistani students accused of plotting to cause a “mass casualty explosion” in Britain in 2009. On May 18, the Special Immigration and Appeals Commission (SIAC) ruled that although it believed Abid Naseer and Ahmad Faraz Khan to have been involved in such a plot and to be al-Qaeda operatives, it could not deport them because they faced the risk that they would be detained and tortured by the Pakistani authorities.

The decision caused predictable outrage with hysterical comments regarding the irrationality of “affording” terrorists human rights. Once the red haze clears somewhat, one may be able to get a sense of proportion and realize just how far removed from democratic concepts of due process, justice and the right to a fair trial the case is. Naseer and Khan were two of 12 Pakistani students arrested in April 2009 in Manchester and Liverpool. The arrests involved dramatic Hollywood-style raids consisting of hundreds of armed police officers, with suspects being thrown to the floor and arrested in full view of the public. Numerous homes and properties were also thoroughly searched.

Like previously thwarted plots, they involved sensational media coverage deliberately calculated to stoke panic and xenophobia among a population already terrified by the politics of fear callously being played by the government, whose premature and hyperbolic statements only serve to legitimize such views. Then Prime Minister Gordon Brown praised the security services for having foiled a “very big” terrorist plot.

Within two weeks, all 12 men, including Naseer and Khan, were released from custody without charge. No evidence of explosives or bomb-making equipment was found. But the men were immediately re-arrested and detained. They were told they would be deported on the basis that the Secretary of State had unilaterally decided that their presence in Britain was not conducive to the public good. After spending several months in prison, all but two (Naseer and Khan), decided to voluntarily return to Pakistan while still maintaining their innocence and vowing to clear their names.

Naseer and Khan were forced to fight their deportation, not in a normal court of law, but in the Special Immigration Appeals Commission (SIAC), a notorious creation of then Home Secretary Jack Straw. SIAC is a special tribunal that reviews deportation cases involving national security issues. It was established in 1998 after the government lost a case in 1996 at the European Court of Human Rights, involving a Sikh activist who had been held in jail in Britain for six years without charge, while the issue of him being tortured on his return to India, was litigated. Previously, in such cases, appellants or their lawyers could not hear all the evidence relied upon by the Home Secretary.

SIAC was designed to remedy this with a system of security-vetted lawyers, separate to the appellant’s own legal team. These “special advocates” have access to all the classified information but are prohibited from revealing any of it to the appellants or their lawyers. SIAC comprises three commissioners, one of whom holds or has held high judicial office and another who is or has been an immigration judge. SIAC previously heard appeals against the indefinite detention of terror suspects who could not be deported, and now also hears appeals against decisions to deprive people of British citizenship based on security sensitive information (another aspect of the government’s counter terrorism policies).

Such has been the innate immorality of SIAC that several special advocates resigned — after first trying to make the system work for a few years — when SIAC’s remit was extended from hearing immigration cases to those of terror suspects held in indefinite detention without charge or trial. The first to leave, Ian Macdonald QC, stated late in 2004: “My role has been altered to provide a false legitimacy to indefinite detention without knowledge of the accusations being made and without any kind of criminal charge or trial.” The depravity of SIAC also led to the voluntary departure to Algeria of several Algerian terror suspects, detained without charge for years, who preferred to risk torture, rather than linger in legal limbo in Britain. Comparing their situation to “fighting ghosts”, they wrote an open letter to the Guardian newspaperin which they announced that they were “choosing the alternative of a quick death in Algeria to a slow death here.”

It was at the mercy of this Kafka-esque body that Naseer and Khan were forced to turn to fight their deportation. Without them or their lawyers ever being able to see or challenge the evidence against them, both were judged to be al-Qaeda operatives, forever maligning their reputation and putting them at risk of detention, torture and even death, by security forces wherever they travel.

Mr. Justice Mitting ruled that he was satisfied that it was conducive to the public good that they be deported but that due to the threat of their being abducted and tortured by the Pakistani intelligence agencies, they could not be so deported. Amazingly, despite such confident statements, neither Naseer nor Khan will ever go on trial or be charged with any of the plethora of anti-terrorism offences on the statute books. Mr. Justice Mitting admitted that there was a “complete absence of any evidence of the handling or preparation of explosives by Naseer and his alleged associates” and that “despite extensive searches of buildings associated with them, nothing has been found, apart from an irrelevant trace of RDX in one of the properties.” Nevertheless, due to secret evidence which neither the defendants nor their lawyers were allowed to see or challenge, Mitting concluded that an attack was “imminent”.

Now having decided Naseer and Khan are a threat to “national security”, it logically follows that they must be punished. Hitherto, SIAC’s method of dealing with this anomaly was to impose “control orders” upon such suspects under which their movement, associations, access to telephones, computers and bank accounts, was severely restricted.

This is where another problem arises — just over two months ago, the Liberal Democrats, who now form part of the Coalition Government, voted en masse against the renewal of the control order regime, and have frequently criticized their use. Although the Conservatives, who make up the majority in government, have backed renewal of the regime, last June, the new Minister of State for Security, Baroness Neville-Jones, described the regime as “inherently objectionable”, stating that a Con-servative government would “review them with a view to reducing and if possible abolishing reliance upon them.”

The case is a litmus test for the new coalition government to see just how it will deal with issues deemed to be those of national security. It has produced impressive statements regarding the introduction of a Freedom Bill, the repeal of the Identity Cards scheme, and the protection of trial by jury. It has rather conspicuously avoided all references to issues of 28 days pre-charge detention, control orders, the use of secret evidence and shadowy courts such as SIAC. Cases such as this will prove whether the new government, now faced with the realities of power, will revert to becoming a mirror image of its predecessor.