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Socialist Lawyer issue 49

It’s not getting any better...

As Socialist Lawyer goes to press, we continue to face the possibility of the Government introducing 42 days detention without charge. The Counter-Terrorism Bill, awaiting its second reading in the House of Commons, contains not only 42 days, but also other seriously concerning proposals.

One of those is the proposal whereby the Home Secretary could require coroners to hold inquests in secret without a jury in cases of ‘national security’. Helen Shaw from INQUEST describes the longrunning struggle of the Jean Charles de Menezes campaign for justice: his family's right to know how and why he was killed, and to hold police officers responsible. It was not the inquest system that gave the de Menezes family justice. Instead, and most unusually, it was the decision of the Health and Safety Executive to prosecute, and the common sense of the jury, that provided some limited justice for the family. Flawed though it is, the inquest system provides for some accountability and, in many cases, the common sense of the jury can see past obfuscation by lawyers. Professional coroners, who owe their livelihood to the Home Office, are far less likely to be sceptical of the police, or of the implicit threat whenever the words ‘national security’ are mentioned. And those coroners who are not so easily intimidated, such as the coroner presiding over the deaths of British service personnel in Iraq, can be removed, and a specialist, more reliable coroner parachuted in for reasons of ‘national security’ at any point during the inquest (clause 65 of the Bill).

Part of the worrying underlying philosophy to the Counter-Terrorism Bill is an attack on the separation of powers. Perhaps that sounds like an esoteric lawyerish point. But let's just consider the last point about coroners again: during the course of the inquest (a judicial hearing), the Government can remove the coroner and replace him or her with another coroner of the Government's own choosing. Doesn't that strike at the heart of the independence of the judiciary? And if coroners, why not other Judges?

The same assault occurs in the context of the debate over 42 days. The Government thinks it has learnt lessons from the defeat of 90 days. Not only has it reduced the period, but it reassures MPs that, if they pass the provision in principle, 42 days won't actually be implemented unless and until there is a specific need to. Schedule 1 provides that 42 days is a ‘reserve power’. If the Secretary of State receives a report from the Director of Public Prosecutions that it is necessary to bring 42 days into force so that a particular individual can be detained for longer than the existing 28 day period, he or she may do so and then lay a report before Parliament. If a Judge subsequently orders an extension of detention for longer than 28 days, that must also be reported to Parliament. This all sounds jolly democratic and is, in fact, the classic New Labour technique for piloting through controversial measures. But, for those of us who are not MPs, the idea that Parliament might be voting on the introduction of the reserve power is deeply worrying and anti-democratic, because it means that MPs are voting about a particular case, a particular individual and his or her detention. MPs are elected to be legislators, to make the rules. They are not elected to implement the rules in individual cases. In a democratic society, those decisions are left to Judges. And quite right too. Judges are less susceptible than MPs to tabloid and other public pressure, are not subject to any sort of party whip and, whilst paid by the Government, are obviously more independent from the Government than MPs are. Plus, they are used to considering individual cases. It's their job.

Elsewhere in Socialist Lawyer, we hear from Phil Shiner, from Public Interest Lawyers, and from Kerim Yildiz, from the Kurdish Human Rights Project. Both are pushing the boundaries of the extraterritorial jurisdiction of domestic and international human rights law. The case of Issa v Turkey holds that troops of signatory countries remain responsible under the ECHR wherever they are operating. The House of Lords' decisions in Al-Skeini, Al-Jedda and Al-Sweady (all cases brought by Phil Shiner) have made it clear that British troops operating in Iraq remain subject to the ECHR. We wish Phil luck with the case of Rose Gentle on the legality of the war.

In February 2008, three members of the Haldane Society, together with lawyers from Norway and Finland, constituted an international delegation to examine Turkey's progress in implementing prison reforms, part of Turkey's ongoing attempts to achieve EU membership. The delegation met recently released detainees from F-type prisons. It heard about the effects of ‘isolation treatment’; and heard from lawyers and family members of Abdullah Ocalan who remains in solitary confinement. The Turkish Heavy Penal Courts (former State Security Courts) continue to cause grave concern, with lengthy detentions before trial, harassment of lawyers and the continued use of ‘denigrating Turkish’ as a criminal offence. The report of the international delegation will be published soon.

Don't forget to look at the back page, as always. We've had a fantastic series of human rights lectures so far. An audience of 120 people listened to Imran Khan and Faisal Osman put the case against anti-terrorism laws. In a discussion on restrictions on the right to protest, the point was made forceably that freedom of expression includes the freedom to say anything, provided that it's not criminally unlawful. In March, we'll be discussing the very familiar topic of keeping the right to public funding. In April, two long-standing Haldane supporters and regular contributors to this magazine, Phil Shiner and Bill Bowring, will be discussing the use of the Human Rights Act and extra-territorial jurisdiction. We're particularly looking forward to hearing Bill describe the attempts to prosecute Donald Rumsfeld. The world would be a safer place if he succeeded. And we're delighted that Gareth Peirce and Keir Starmer QC will look, in May, at the extent to which the Human Rights Act, whilst it must be defended, has its limitations for socialist and radical lawyers.

Liz Davies, Chair of the Haldane Society