Bill leaves UK worried over rights

The Terrorism Bill may affect UK's shining record as a human rights champion, reports Nabanita Sircar.

A committee of MPs has asked for fresh evidence in its inquiry into counter-terrorism policy as the Terrorism Bill enters its final stages in the House of Lords. There is concern about how it will affect Britain's shining record as a human rights champion, in the international arena.

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Under the new Terrorism Bill the police will have unprecedented powers to hold suspected terrorists without charge or trial for up to 90 days. When British politicians debated the proposal, Guy Mansfield, QC, chairman of the Bar Council of England and Wales, argued that such a move could damage the UK's international stature as an ambassador for human rights.

"Even temporary loss of liberty has long been regarded as requiring the highest justification," he said. "We cannot allow these very difficult times to lead us to depart from the standards that make this country a great democracy and a beacon of freedom and civilised standards." UK campaigners may see the Terrorism Bill as "draconian".

In a survey conducted by The Times, where senior legal authorities around the world gave their opinion, India's Fali Sam Nariman said the idea of detention without charge is nothing new to India. "We have had preventive detention, as we call it, ever since we've had a constitution," says Nariman, a senior advocate in the Supreme Court of India and President of the Bar Association of India. He points to Article 22 of the Constitution that was introduced to keep in check the threat of the "Communist menace".

While that threat may have been genuine at the time, it has been consistently abused in the name of national security ever since, he says.

Nariman is bemused by the debate of UK politicians over whether an acceptable period of detention is 14, 28 or 90 days. "The point is not the number of days, but the very fact that you are putting away people on the vaguest suspicion for a sizeable period of time. That is the noxious thing," he says. "Once you go down that slippery slope, there is no end to the cutting of corners."

Nariman believes that the threat of terrorism does need to be addressed by special powers. "Something has to give, and perhaps that something has to be the right to silence," he argues. "I don't see why people charged with such a serious offence can just sit quietly by."

He was asked that, as a member of the Commonwealth, is it significant that the UK is considering such laws? "It is true that the UK has been a beacon light, a lamp of liberty, and one government does pick up practices from another government," Nariman says.

He was struck by a postscript in the judgment of Lord Hoffmann in the House of Lords' ruling that the indefinite detention without trial of 12 terrorism suspects at Belmarsh breached human rights laws. "The real threat to the life of the nation, in the sense of people living in accordance with its traditional laws and political values, comes not from terrorism but from laws like these," Lord Hoffmann said. Nariman describes himself as more "exasperated" than surprised that the UK was considering 90-day detention without charge. "If you follow the Chinese system of rule by law, instead of rule of law, then you're in trouble," he comments.

Richard Goldstone, a retired justice of South Africa's Constitutional Court and former prosecutor of the international tribunals for the former Yugoslavia and Rwanda says, "My experience in South Africa indicates that this sort of provision is a huge violation of human rights." He compares the British Government's proposals to the laws that upheld the apartheid regime, and which he campaigned against. "Frequently, people were picked up when innocent and to be held for 90 days is a very unfortunate experience for anybody," he says. He believes what the UK does matters to other countries.

The Malaysian lawyer, Param Cumaraswamy who was the former UN special rapporteur on the independence of judges and lawyers says, "In my law school in London I learnt what Lord Mansfield said, Fiat justitia, ruat coelum - 'Let justice be done, though the heavens fall'," reflects Param Cumaraswamy, the former UN special rapporteur on the independence of judges and lawyers. He regards the 90-day proposal as "draconian" and the Government's attitude towards the law as a long way from Lord Mansfield's ideal.

Cumaraswamy argues that detention without trial "offends the first principle of the rule of law". He believes: "While terrorism itself is a threat to the rule of law, countering it by an enactment conferring police powers of detentions up to 90 days is just not the way." He says, "In the past the British and the US governments were always heard to be critical of detentions under these laws. Now, these champions of democracy and the rule of law are seen resorting to the same draconian measures."

Basil Fernando, the executive director of the Hong Kong-based Asian Human Rights Commission, Basil Fernando detects a disturbing parallel between the UK and what has happened in his home, Sri Lanka. "There was an attempt by police officers to telephone Members of Parliament to support your legislation which really shocked me," he says. "It is exactly what happened in my country. The police become politicised and there's a link established between the police and the politicians for strengthening the powers of each other."

His group has just published a report alleging, "a pattern of systematic torture taking place at police stations and during routine criminal investigations" throughout Sri Lanka detailing 60 such cases. Fernando sees the politicisation of the police as having an "endlessly demoralising impact" on the people.

He is surprised by the 90-day detention being considered by Britain. "I'm surprised because I'm a lawyer bought up in the Commonwealth law tradition," he replies. He says that the UK, as recently as when the law lords denied immunity to General Augusto Pinochet, Chile's former dictator, was regarded as "a beacon".

He says: "It was a great relief when the House of Lords said that it had the jurisdiction to try Pinochet on the basis of allegations relating to torture and human rights abuse. But the UK's image has begun to be shaken."

Michael Posner, executive director of the US group Human Rights First says, "We know there are many governments - from Mugabe's in Zimbabwe to Putin's in Russia - that are looking for excuses to detain political opponents without charge or trial, and to be able to cite British or American examples doing that gives them an easy excuse to misbehave."

He welcomes that the Commons inflicted a defeat on the Terrorism Bill. "It is a sign that democracy is alive and there is genuine internal debate within the country," he says. Ninety-day detention is a mistake, he says. "In the US, and for a longer time in the UK, there has been a debate that we are in a new world and notions of fighting terrorism and national security trumps traditional notions of law," he says. "There is a war against terrorism on the one side and law on the other hand, and the notions of law have become a luxury and not a necessity."