Tony Hatfield's Retired Ramblings

Interesting times?

The effect of the Law Lords’ “Declaration of Incompatibility” in the cases of the nine foreign nationals detained under the Anti-Terrorism Crime and Security Act 2001, has been misunderstood many commentators, who declare the government are “breaking the law” by failing to release the detainees.

Jon Snow, in last evening’s Channel Four News, fell into the same trap when interviewing the Home Office minister Hazel Blears.

The principle underlying Section 4 of the Human Rights Act is that a declaration of incompatibility does not affect the “validity, continuing operation or enforcement of the legislation” against which the declaration is aimed.

When the Bill was debated in the House of Lords, the then Lord Chancellor, Lord Irvine of Lairg said:

“Clause 4 provides for the rare cases where the courts may have to make declarations of incompatibility. Such declarations are serious. That is why Clause 5 gives the Crown the right to have notice of any case where a court is considering making a declaration of incompatibility and the right to be joined as a party to the proceedings, so that it can make representations on the point. A declaration of incompatibility will not itself change the law. The statute will continue to apply despite its incompatibility. But the declaration is very likely to prompt the Government and Parliament to respond. In the normal course of events, it would be necessary to await a suitable opportunity to introduce primary legislation to make an appropriate amendment. That could involve unacceptable delay when Parliamentary timetables are crowded. We have taken the view that if legislation has been declared incompatible, a prompt parliamentary remedy should be available. Clauses 10 to 12 of the Bill provide how that is to be achieved. A Minister of the Crown will be able to make what is to be known as a remedial order. The order will be available in response to a declaration of incompatibility by the higher courts. It will also be available if legislation appears to a Minister to be incompatible because of a finding by the European Court of Human Rights.”

The government need not release the detainees because of the ruling. Of course the nine may now be able to re-apply for bail before the appropriate tribunal. Though it’s difficult to see how their lordship’s decision, by itself, strengthens such an application!

So the question Snow should have asked was “what steps have the government taken in the last six months to deal with the possibility that the House of Lords declare some, or all, of the provisions in the 2001 Act incompatible with the Convention? The Committee under Lord Newton of Braintree, set up by the former Home Secretary to look into the working of the Act was scathing of its provisions -almost as scathing as their Lordships.

“We strongly recommend that the powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency. New legislation should: a. deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators; and b. not require derogation from the European Convention on Human Rights. We have identified several alternative approaches that, either alone or in combination, merit further development by the Government. For example, the blanket ban on the use of intercepted communications as evidence in court should be lifted to make it possible to prosecute more terrorists.”

Doing nothing is no option. The solution to the government’s difficulties was outlined by Newton, over a year ago.

If there is enough admissible evidence, the detainees must be charged and tried in the criminal courts-or released. Indeed if a change in the law is required to allow the use of intercepted communications in court then the Home Office should bring forward the appropriate legislation without delay. I suspect there may be all-party support for such a step. The government, about to fight a “Law’n’order election next May, are unlikely to do so.

Interesting times indeed! Cheers t

posted by Tony @ Friday, December 17, 2004