The “special relationship” is dangerous

Condoleeza Rice, the new US Secretary of State, paid a flying visit to Britain on 4 February. She had breakfast with the Prime Minister and gave a joint press conference with Jack Straw. In her opening remarks, she declared:

“I decided to come first to Britain because we have no better friend, we have no better ally”

This “special relationship” is why, according to the Attorney General, Lord Goldsmith, Britain is under greater threat from al-Qaeda than any other of the 45 signatories to the European Convention on Human Rights, including even Spain that has experienced al-Qaeda attacks. This is why we alone had to introduce internment without trial.

We know this from the House of Lords judgment on 16 December 2004, which found the indefinite detention of foreign nationals without charge or trial to be incompatible with the European Convention. Lawyers for the detainees naturally questioned why Britain alone had found it necessary to derogate from the Convention in order to introduce detention without trial. The Attorney General’s response, as summarised by Lord Bingham in his opinion, was:

“Insofar as any difference of practice as between the United Kingdom and other Council of Europe members called for justification, it could be found in this country’s prominent role as an enemy of Al-Qaeda and an ally of the United States.” (paragraph 25)

So, there you have it: being a prominent ally of the US is dangerous. The Prime Minister has increased the threat to life and limb in Britain by choosing to stand shoulder to shoulder with President Bush after 9/11, and following him into Afghanistan and Iraq. If the Prime Minister had chosen to follow “old Europe”, like “old Europe” we would not have needed to derogate from the Convention. If we now choose to distance ourselves from US aggression against the Muslim world and withdraw our troops from Iraq, the chances of our being attacked by al-Qaeda would become vanishingly small. To make Britain safe, all we have to do is to stay at home and stop interfering in the world.

Needless to say, this rather significant fact has not intruded upon the ongoing discussion about replacing detention without trial for non-British nationals who cannot be deported, with the imposition without trial of “control orders” upon suspected persons of British or any other nationality.

The Lords declared detention without trial of non-British nationals incompatible with Articles 5 and 14 of the Convention because “it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status” (paragraph 73).

In its alternative proposals announced to the House of Commons by Charles Clarke on 26 January, the Government has sought to avoid the accusation of discrimination (contrary to Article 14) by proposing that British nationals, as well as foreigners, suspected of terrorism may be subject to control orders; and to avoid the accusation that indefinite confinement in prison is disproportionate (contrary to Article 5) the control orders will be of varying severity, up to and including house arrest on the South African model. However, the Home Secretary will select individuals for confinement – they will not be charged and given a chance to answer charges against them – and the Home Secretary will determine the severity of the control order. Failure to adhere to a control order will be a criminal offence punishable by imprisonment.

It is likely that the House of Lords would find these measures contrary to Article 6 of the European Convention (the right to a fair trial) and, in the most severe forms of domestic confinement, contrary to Article 5 (the right to liberty). Consequently, to enact these measures without fear of them also being deemed by the House of Lords to be incompatible with the Convention, the Governemnt will have to derogate from the Convention again. Clarke allowed for that possiblity when he announced the proposals to Parliament.

In order to do so, the Government will have to propose as it did in November 2001 (and Parliament will have to approve) an order formally declaring that “a public emergency threatening the life of the nation” continues to exist. Clarke prepared the ground for this on 26 January when he told the Commons:

“I am left in absolutely no doubt that nothing has happened recently that diminishes the threat, or calls into question the state of public emergency threatening the life of the nation.”

This is hardly surprising since the intelligence services had judged prior to the invasion of Iraq that the threat from al-Qaeda and associated groups would be heightened by military action against Iraq (Intelligence & Security Committee Report, paragraphs 126). That was one of the small things that the Prime Minister chose not to tell Parliament in advance of the invasion of Iraq, lest it fail to approve of the invasion.

Labour & Trade Union Review

February 2005