1. Government, Law and Justice 5-16Government, law and justice in the biblical tradition 5-9
The emergence of liberal democracy 10-12
The rule of law 13
Elected legislatures 14
Individual rights 15-16
2. Liberty and Security – General Issues 17-33
Detention without charge in British history 17-20 The right to liberty 21-23
National security and emergency powers 24-29
Reconciling liberty and security – who decides? 30-33
3. Pre-Charge Detention – What Limits? 34-53
The law on detention before charging 35-37
The setting of the present 28-day limit 38-39
Beyond 28 days? 40-46
The Government’s current proposals 47-50
Conclusion: Not proven 51-53
4. Guantánamo Bay – A “Legal Black Hole” 54-65
Neither criminals nor prisoners of war 56-58
Conditions and treatment 59-60
Military commissions 61-62
The attitude of the British Government 63-64
Conclusion: A massive and perilous mistake? 65
5. Control Orders – Taking Liberties 66-82
The detention of foreign national suspects 67-69
The Government’s response to the Law Lords 70-71
The meaning of control orders 72-73
The exercise of judicial supervision 74
Imposing “non-derogating” orders 75
Imposing “derogating” orders 76-77
Legal challenges and judgments 78-80
Conclusion: Holding the line 81-82
6. Conclusion: The politics and theology of imperfection 83-84
DETENTION WITHOUT CHARGE
Introduction 1. The rise of international terrorism inspired by extreme Islamist ideology and directed against the United States and its allies is one of the major developments of the last twenty years, especially since the watershed events of 9/11. The background to this phenomenon, and possible responses to it, were set out in 2005 in the report from a House of Bishops working group Countering Terrorism: Power, Violence and Democracy Post 9/11 (GS Misc 805) and the Mission and Public Affairs Council report Facing the Challenge of Terrorism (GS 1595). Both reports were discussed during the Synod debate of 15 November 2005 which reflected on the consequences of the London bombings of 7 July 2005.
2. Both reports drew attention to novel features of the current phase of terrorism, in particular the extent of its international networks and its reliance on attacks without warning by suicide bombers. These create new difficulties for the intelligence and security services in seeking to anticipate and prevent terrorist attacks, and accentuate the heavy cost in terms of lives, injury, physical damage and public outrage should major incidents occur. The bombing of trains by Al-Qa’eda in Madrid in March 2004 produced even more carnage and trauma than the horrific events of July 2005 in London (and provoked a robust public demonstration of solidarity and defiance from the Spanish peoples).
3. Both reports also warned against the temptation for democratic governments to meet the legitimate demand for security against terrorist attacks by curtailing fundamental rights and freedoms. Bishop Richard Harries wrote in the preface to Countering Terrorism, “All governments have a proper responsibility to take the necessary steps to safeguard their citizens…but citizens need to be vigilant that these steps do not infringe hard won civil liberties, particularly the right to due process of law. The churches have a particular message here based on Biblical insights about fear and how playing on the fears of enemies makes for unwise policies.” Facing the Challenge of Terrorism argued that “to restrict the rights of citizens in the name of public safety may compromise the openness of society, defence of which is a prime reason for combating terrorism” (para. 24) and observed that “when governments act against a background of fear, there is a danger of …‘atrocity politics’, in which critical questions become muted and the plea of expediency is accepted too readily.” (para. 28)
4. This report deals with a limited but vitally important aspect of the larger question of reconciling liberty and security: whether, and if so to what extent, the principle that no-one should be deprived of liberty without due process of law should be modified in order to protect society from the threat of terrorist attack. It examines two contemporary examples of detention without charge – the process in the United Kingdom by which suspected terrorists may be held without being charged while investigations proceed, and the detention camp for suspected terrorists established by the United States at Guantánamo Bay in Cuba – and a third practice which borders on it – the restriction on the liberty of suspected terrorists through the imposition of control orders under legislation passed by the United Kingdom Parliament in 2005. It seeks to evaluate these practices in the light of Christian beliefs about government, law, justice, liberty and security.
1: Government, Law and Justice
Government, law and justice in biblical tradition
5. Both Jewish and Christian theology have a long tradition of understanding government as a divinely instituted activity. Central to the functions of government are the maintenance of order and the administration of justice. In both of these tasks human beings are in some sense reflecting the activity of God, who orders the world for his good purposes through creation and providence, and judges human action according to his righteous character. The biblical narrative bears witness to the corrosive and destructive effects of anarchy and disorder – those periods when “all the people did what was right in their own eyes” because “there was no king in Israel” (Judges 17:6, 21:25) – and the New Testament expresses approval of the peace brought by the Roman empire to the Mediterranean world, enjoining prayer for kings and those in authority “so that we may lead a quiet and peaceable life in all godliness and dignity” (1 Timothy 2:1-2).
6. As well as being a bulwark against disorder, kings in the Old Testament are seen as agents and guardians of the divine order which is established by God’s covenant with his people and articulated in his gift of the law. Central to this order is the activity of judgment, of doing justice, which is essentially to distinguish between the righteous and the unrighteous, in order to vindicate the former and punish the latter. The effect of adminstering justice is that the vulnerable and the needy are defended from oppression and violence (Psalm 72:14). In fulfilling this role, the king acts as God’s servant and makes manifest God’s dealings with his people. The prophet Jeremiah told King Shallum (or to give him his regnal name, Jehoahaz) , son of King Josiah, “Did not your father eat and drink and do justice and righteousness? Then it was well with him. He judged the cause of the poor and needy; then it was well with him. Is not this to know me? says the Lord.” (Jer. 22:15-16).
7. Jews and Christians have not always lived in societies where their God and the divine law were acknowledged as the foundation of order and justice. Nevertheless, they have believed the rulers of those societies to possess legitimacy and indeed to be acting as servants of God in administering justice. The classic text in the New Testament is Romans 13:1-7, where St Paul sketches an ethic of obligation to obey “the powers that be” (primarily the Roman empire) and outlines their function of approving good and punishing evil in terms which echo the Old Testament pattern of distinguishing between the righteous and the unrighteous. Paul does however assume that the authorities generally execute that function faithfully, which invites reflection on what may happen if that condition is not fulfilled.
8. The other side of the biblical portrayal of kings and rulers is that they are liable to act unjustly and oppressively, in which case they stand under the judgment of God. The words of Jeremiah to Jehoahaz commending his father Josiah are followed immediately by searing words of condemnation, “But your eyes and heart are only on your dishonest gain, for shedding innocent blood, and for practising oppression and violence.” (Jer. 22:17) The most striking example of the ambivalence of monarchy and government is Solomon, of whom two flatly contrary accounts are given almost side by side: on the one hand a model of humility, wisdom, discernment and justice, and on the other a byword for pride, tyranny, financial exploitation and unfaithfulness to God. Another appalling abuse of power is the wicked conspiracy by King Ahab to pervert the course of justice in order to dispose of Naboth and gain possession of his vineyard (1 Kings 21:1-24). In the New Testament the generally positive estimate of Caesar’s rule in the Gospels and epistles is starkly contradicted by the Book of Revelation’s coded denunciation of the Roman empire as a diabolical instrument of idolatry, violence and persecution.
9. The climactic historical event of the New Testament, the crucifixion of Jesus, was the result of a miscarriage of justice involving doubtful procedures and the presentation of perjured evidence. Jesus Christ in his ministry and “suffering under Pontius Pilate” therefore embodies both the fulfilment of the biblical hope for the execise of authority in the service of justice and identification with those subject to the processes of criminal justice (whether guilty or innocent). Jesus reminds us that vindication of the innocent is as important as condemnation of the guilty, and that all human judgment is partial, fallible and provisional in contrast to the judgment of God that takes place through him “who will bring to light the things now hidden in darkness and will disclose the purposes of the heart” (1 Corinthians 4:5).
The emergence of liberal democracy
10. These biblical paradigms and stories do not transfer directly to modern societies, but they bear witness to the good and evil propensities of government, to the necessity and yet the corruptibility of coercive power as a central element in the ordering of society. Over the centuries many methods have emerged to criticise, limit or check the abuse of governmental power. Unjust or oppressive rulers were sometimes removed by war, rebellion, assassination or dynastic rivalry – and still are. In modern times, power has become differentiated and a number of non-violent correctives have become embodied in the institutions, laws and practices of developed societies which can be summarised under the heading of “liberal democracy”.
11. The mutual influence of Christianity and liberal democracy is a complex story and is still unfolding. While it is true that churches have often quarrelled with liberal regimes and systems of thought, especially when believing them to be motivated by secularist aims, the history of liberal political thought owes much to Christian teaching first about the dignity and equality of human beings in the sight of God and second about the corruption of human nature. Together these beliefs imply the need both to affirm and limit the powers of government.
12. Another connection often overlooked is the ancestry of modern concepts of human rights in the earlier belief in “natural rights” belonging to all human beings in virtue of their creation by God. The Christian contribution to human rights thinking, both in the 17th and 18th centuries and in the 1940s when the United Nations Declaration of Human Rights was being formulated, stands in danger of being erased by secularist accounts of developments, but has been rediscovered in recent years.
The rule of law
13. The history of liberal democracy is complex, but for the purpose of the present discussion three features may be singled out. The first aspect is the growth of the rule of law interpreted and enforced by an independent judiciary. In traditional monarchies, where the Sovereign was the source of law and authority, the judiciary, like the legislature, was seen as the instrument of the Crown. Magna Carta (see para. 18 below) marks a vital moment in the holding of the English monarchy to account. Nevertheless, in early modern Britain judges were known as “lions under the Throne” and while they may have sought to administer justice impartially and without bribery, their independence relative to government was constrained. One of the isues at stake in the 17th century English Civil War was whether the king was accountable not only to Parliament but also to the law (common law as well as statute). Was rex lex or vice versa? Since that period, the judiciary has gained thoroughgoing independence of both the executive and the legislature, to the extent that it is now responsible through a variety of routes for adjudicating the lawfulness of the acts of both.
14. The second aspect is the gradual development of elected legislatures as a check on executive power. In Europe the 17th and 18th centuries saw a transition from monarchies with absolutist tendencies to more popularly-based forms of government. Through bitter struggles it became accepted that legitimate government required the consent of the governed, expressed through their chosen representatives. Assemblies like the English parliament moved from being consultative and deliberative bodies, charged with assisting (and financing) the monarch, to acquiring independent power not only to legislate but to make and un-make governments. The oversight of government and the making of law became the expression of the will of the electorate rather than simply the will of the Sovereign, though in the United Kingdom it was as late as 1928 that the right to vote extended to the whole adult population.
15. The third aspect is the acceptance of the protection and enforcement of individual rights as a major function of political and legal institutions. Within this many-sided development we are particularly concerned with recognition of the rights of accused persons. The obligation to judge rightly and impartially has been recognised in legal systems from time immemorial, but the growth of procedural safeguards for defendants is a relatively recent development. In State trials under the Tudors and Stuarts, the odds were heavily weighted against the accused, who was often subjected to pre-trial torture. Over three centuries, through a complex mixture of legal, political and constitutional developments, criminal law has developed sophisticated standards of “due process” and formal provisions for the protection of accused persons, not only at trial but from the point of arrest and detention.
16. In the late twentieth century, the impact of common and statute law was supplemented by the provisions of the European Convention on Human Rights, which were incorporated into domestic law and brought within the jurisdiction of British courts by the Human Rights Act 1998. This marked a decisive shift from the English common law tradition, with its assumption that whatever is not prohibited is permitted, towards a codified and systematic approach to rights.
2: Liberty and Security – General Issues
Detention without charge in British history
17. Imprisonment as a punishment in itself, imposed by a court and specified in duration, is a relatively modern practice. For most of history, detention has been used either as a prelude to trial and punishment or as an alternative to exile, a means of confining people, like Mary Queen of Scots in the reign of Elizabeth I, who would have been dangerous or inconvenient to those in authority if set at liberty. The detention.of people with serious mental disorders is the other major example of deprivation of liberty, though this also has the benign purpose of providing a “place of safety”. It is these uses that the Scriptures have in mind when they lament the wretched and hopeless condition of prisoners and praise God as the one who promises release from captivity. One effect of the growth of liberal democracy has been to eliminate, or at least to render exceptional, the practice of arbitrary detention.
18. There is a discernible legal tradition in Britain protecting the freedom and rights of accused persons, but it has evolved spasmodically. The “presumption of innocence” requires that there be justification for arresting, detaining and charging a person. A major landmark is Magna Carta (1215), which resulted from the attempt by a group of barons to limit the powers of King John. In Articles 38 to 40, three momentous statements are made about justice:
In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.
No free man shall be seized or imprisoned, or stripped of his rights
or possessions, or outlawed or exiled, or deprived of his standing in any
other way, nor will we proceed with force against him, or send others to
do so, except by the lawful judgment of his equals or by the law of the land.
To no one will we sell, to no one deny or delay right or justice.
(English translation, British Library)
These stipulations – which may to some extent restate the existing common law – are the assertion of justice in process as well as justice in outcome. As far as detention is concerned, they guarantee the provision of relevant and independent evidence to support a charge, the application of due process, and the entitlement to speedy (but not hasty) justice.
19. Another landmark is the development of habeas corpus, which bears directly on the practice of detention. “Habeas corpus (ad subjiciendum)”, meaning “you may have the body (subject to examination)”,are the opening words of a mediaeval writ requiring a person detained by the authorities to be brought before a court in order that the legality of the detention may be scrutinised. Should the court decide that the charge is valid, the person detained must submit to trial; should it rule otherwise, the person must be set free. The substance of the writ has affinities with Article 39 of Magna Carta, and it appears to have been used in the 12th century. In 1679, at a time of considerable political turmoil and instability, Parliament enshrined the writ in statute by passing the Habeas Corpus Act. In 1772 it was used in Somersett’s case, in which a black slave from Jamaica applied for habeas corpus and Lord Mansfield ruled that slavery had no legal standing in England. It is now rarely used, since detention by the police is governed by the Police and Criminal Evidence Act 1984, but Professor Michael Zander has said that “it stands for the principle that unlawful detention can be challenged by immediate access to a judge – even by telephone in the middle of the night”.
20. Also relevant to the issue of terrorism is the fact that habeas corpus has periodically been suspended in times of national emergency. William Pitt the Younger did so in 1793 after France declared war on Britain, and took the opportunity to arrest parliamentary reformers; Lord Liverpool’s government did the same in 1817 at a time of social unrest. At moments of grave crisis governments, here as in other countries, have introduced measures of detention without trial. The Defence of the Realm Act 1914 empowered the Home Secretary to intern British residents (in practice mainly those of German or Irish descent) and the powers were used again during the Second World War against Germans, including Jewish refugees. More recently, in 1971 the then devolved government of Northern Ireland interned hundreds of Republican sympathisers in an attempt to cut off support for the IRA – a measure generally judged to be counter-productive and which was abandoned four years later.
The right to liberty 21. The right upheld by habeas corpus is set out in Article 5 of the European Convention on Human Rights, which begins, “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:…” The “following cases” include Article 5.1(c): “the lawful arrest and detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.” This Article follows directly on those dealing with the right to life, the prohibition of torture and the prohibition of slavery, and therefore stands high in importance.
22. It will be seen that Article 5.1(c) permits the use of preventive detention, but it must be read in conjunction with 5.3 which states, “Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article should be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.” The equivalent of habeas corpus is contained in Article 5.4: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” Much in the application of these provisions rests on the interpretation of terms such as “reasonable suspicion”, “reasonably considered necessary”, “promptly” and “within a reasonable time”. The overall intention is to ensure that detention after arrest lasts only as long as is necessary for the police to complete their questioning and other enquiries before deciding whether to bring a charge. But what determines “necessity” in this context?
23. The European Convention makes provision for some rights to be limited in accordance with social needs, but Article 5 rights are not among these. The right to liberty and security of person is constrained only by the terms of the Article itself. There are three ways of avoiding condemnation of a particular measure or action as contrary to Article 5. The first is to demonstrate that it does not constitute deprivation of liberty and therefore the Article is not engaged. The second is to demonstrate that it meets the requirements of the Article, given a proper interpretation of the terms mentioned in the previous paragraph. The second. The third is to invoke Article 15 of the Convention, which provides that “in time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”