Airy-Fairy

Conor Gearty

  • Human Rights and the End of Empire: Britain and the Genesis of the European Convention by A.W.B. Simpson
    Oxford, 1176 pp, £40.00, June 2001, ISBN 0 19 826289 2

In 1920 our ‘Mad Mullah’ was Mullah Yussuf Dua Mohammed. Ensconced in British Somaliland, he and his dervishes were the subject of repeated air attacks by an RAF unit. As A.W.B. Simpson writes in one of the early chapters of this sprawling, monumental and sometimes magnificent book, Z Unit was responsible for bombing ‘Medishi Jidali, where there was a fort, and for machine-gun attacks on the unfortunate sheep owned by the tribesmen. There is no suggestion of previous warning being given, but it is not clear that any dervishes were actually killed, though the Mullah’s clothing was burnt.’ This was the start of ‘air control’, a ‘strange form of policing, radically different from normal policing in that no attempt was made to arrest malefactors and bring them to trial. It was not conceived to require special legitimisation at all. Legislation never even mentioned it, nor was it necessarily associated with martial law.’

In August 1920, villages in Mesopotamia were bombed as a form of collective punishment for holding up the withdrawal of British forces in the area.

On 21 January 1921 Baqubah and Huneidar were bombed and machine-gunned, and 86 villagers killed. An adjacent village, due for bombing the next day, sent a deputation to point out that its villagers were wholly innocent. This indicates that a warning had been given but there is no direct evidence. By way of diversion the RAF also took a day off to bomb the Bolshevik fleet in Enzeli. Those were the Biggles days.

The idea developed that aircraft could completely replace ground forces in policing Mesopotamia and similar areas. In the late 1920s, the use of air attacks was extended to the North-West Frontier, southern Arabia and southern Sudan. ‘Air control’ was used in India in 1942, and after the war in Malaya (where 4000 tons of bombs were dropped in 1952) and in Kenya between 1952 and 1956. During that decade it was still being used in southern Arabia, ‘where, among others, the Hujeili, Mansuri, Ayehlia, Bal Harith and Quteibi were set on’. If a tribe became restive, Simpson writes, ‘a demonstration by air would take place over the village and a message would be dropped to tell the chief that hostile action against him would have to be taken if he did not come in.’

One of the main purposes of these ‘air blockades’ was to drive recalcitrant tribesmen into caves (rather than, as is the case today, out of them). ‘In the caves or other asylum outside the blockaded area,’ the Air Ministry stated, ‘they pass a most uncomfortable time . . . It may be necessary to continue the operations for some months before a particularly stiff-necked tribe gives in, but this requires no particular effort on the part of the air forces.’ Nevertheless, ground forces were often needed as well. It was the Camel Corps rather than Z Unit that eventually caught up with Mullah Yussuf, and ground troops remained the primary means of retaining order in the Empire. There was a lot of Empire and many hostile subjects, so soldiers became used to acting with brutal expedition. When Brigadier-General Reginald Dyer resorted to the quasi-legal technique of martial law in Amritsar in 1919, he imposed a curfew combined with a ban on all processions: ‘any persons found in the streets after 8 p.m. are liable to be shot. No procession of any kind is permitted to parade the streets . . . Any processions or gatherings of four men will be looked upon and treated as an unlawful assembly and dispersed by force if necessary.’ To Dyer, the discharging of 1650 rounds of ammunition at a peaceful outdoor meeting (killing 380 persons) was a routine application of martial law:

There was no reason to further parley with the mob; evidently they were there to defy the arm of the law . . . If I fired I must fire with good effect, a small amount of firing would be a criminal act of folly . . . I fired and continued to fire until the crowd dispersed . . . If more troops had been on hand the casualties would have been greater in proportion. It was no longer a question of merely dispersing the crowd, but one of producing a sufficient moral effect, from a military point of view, not only on those who were present but more specially throughout the Punjab. There could be no question of undue severity.

(The emphasis is Simpson’s.) For this honest appraisal of how the Army went about its business, Dyer was condemned by the House of Commons and characterised in some official circles as mentally disturbed.

As Simpson makes clear, the military approach to martial law epitomised by Dyer was entirely at odds with common law, which did not permit killing merely to communicate a message. When it came to running the Empire, however, the rule of law could not be given too much importance: its purpose was to help us feel better about ourselves at home, not to hinder our management of unruly natives. Just as ‘air cover’ had no clear legal base, so the use of force to destroy the will of opponents was without legal justification. Yet it was often used and usually worked: a few early and apparently unnecessary deaths were terribly deflating for a peaceful protest with revolutionary aspirations. In Egypt in the same year as Amritsar, disorder was put down by General Sir Edward Bulfin with ‘such a display of force as would bring conviction that conflict with the Government was hopeless’. Floggings, shootings, hangings and the burning of houses and livestock, as a result of which 1500 people died, achieved the desired effect, and when it was all over no one suggested that the military should be called to account before the local courts.

Where law was required, recourse could be had to emergency rules and regulations, a quite enormous variety of which were strewn across the Empire. With characteristic thoroughness (and humour) Simpson goes through them all.

No account of repression in the Subcontinent would be complete without a mention of a bizarre permanent piece of legislation. This was an Act for the Registration of Criminal Tribes and Eunuchs of 1871, drafted by no less a legal luminary than James Fitzjames Stephen. This enabled the authorities to categorise ‘a tribe, gang or class’ as one ‘addicted to the systematic commission of non-bailable offences’, and thus as a ‘Criminal Tribe’. In 1871 a mere four tribes were so labelled, though the police wanted to list 29. The Act also covered eunuchs, whom Stephen viewed as the managers of ‘an organised system of sodomitical prostitution’ which needed to be stamped out. Eunuchs were, alarmingly, defined as any males who admitted to being impotent, or who, on medical examination, clearly appeared to be impotent. Various unpleasant consequences followed from a listing; for example the tribe, which might be migratory, could have its residence controlled. Later modifications permitted fingerprinting. As for the unfortunate eunuchs, both transvestism and erotic dancing were singled out for special treatment, Fitzjames Stephen strongly objecting to both. The notion that criminal tribes existed was a product of widely held ethnographical ideas of the period, according to which particular tribes shared common characteristics, being, for example, ‘warlike’, or ‘given to plunder in times of disturbance’.

The British Empire plodded on until well into the era of ‘human rights’, but its tried and trusted methods couldn’t survive for long. After World War Two, firing on Arabs from the air became ‘a source of slight nervousness when the negotiations of the United Nations human rights instruments got under way’. Another embarrassment was forced labour, which was still routinely employed in the Gold Coast, Kenya, Nigeria, North Borneo, Nyasaland, Sierra Leone, Tanganyika and Uganda. The UK, Simpson writes,

was a party to the Convention concerning Forced or Compulsory Labour of 1930. Such practices were to have been phased out, but this had not yet happened, though it was unclear whether a breach of the Convention was technically involved. Such labour was used for minor public works, such as road building, and for porterage for officials on tour. The latter conjures up a vision of the dedicated District Officer, attired in pith helmet and spine pad, bent low under the white man’s burden, followed by a line of unfortunate and heavily perspiring Africans, in their turn burdened more directly by bedding roll, portable canvas wash basin, ceramic water filter, cases of whisky, and brass-bound thunderbox.

When the European Convention on Human Rights was first mooted, the Colonial Office was its most earnest Whitehall opponent, for obvious reasons. One of the first cases under the Convention was taken against the UK and involved an attack by Greece on the emergency powers in force in Cyprus, a matter to which Simpson devotes two chapters. His study ends in the 1960s and so does not cover the 1978 ruling of the European Court of Human Rights that the UK had engaged in inhuman and degrading treatment of internees in Northern Ireland in breach of Article 3 of the Convention: the conduct in which the authorities had engaged had been mild by colonial standards but outrageous in the new legal order.

Simpson’s book is, among many other fine things, an elaborate history of how the age of empire came to be superseded by the age of human rights, through which we may or may not, after 11 September, still be living. Simpson tells the story of the emergence of human rights very well, from the early enthusiasm of Sir Francis Younghusband, the later involvement of ‘the prominent and pompous jurist’ Sir Frederick Pollock and other establishment adornments, through to H.G. Wells’s argument for a ‘Declaration of Rights’ in a letter to the Times in September 1939. Britain’s First World War leaders used the lure of the franchise and the promise of ‘rights’ for minority peoples to galvanise support. What Churchill described as ‘the enthronement of human rights’ emerged as the main inspirational rationale for the Second World War. The extent to which Wells and other enthusiasts influenced the Americans is open to doubt: as Simpson tells it, policy-making in the Roosevelt White House was rather chaotic. The ‘four freedoms’ with which FDR gripped Congress in January 1942 had begun life at a press conference seven months before as ‘four fears’. The original freedoms were of information, of religion, of expression and from fear, but when a journalist suggested a fifth – ‘freedom from want’, meaning free trade – the President disarmingly remarked: ‘Yes, that is true. I had that in mind but forgot it. Freedom from want – in other words, the removal of certain barriers between nations, cultural in the first place, and commercial in the second place. That is the fifth, very definitely.’ Information was elided with speech to make room for the newcomer.

It is as good a way as any to come up with universal, inalienable and imprescriptible human rights and the Americans have linked democracy, free trade and human rights ever since. Simpson deals at quite exhaustive length with the subsequent proceedings at the UN and the Council of Europe at which the new postwar international consensus on human rights was slowly, painstakingly, hammered out. Academics and peripheral diplomats may have thought that they were building a new moral world, but for those who mattered, human rights were a weapon in the new Cold War. The ‘freedom from want’ that FDR had in mind was nothing to do with food and housing, but with gaining the opportunity to trade. When victory against the Germans was assured, the champions of a new Western alliance (such as Duff Cooper and Leo Amery) saw it, Simpson says, as ‘a bloc linked by a common democratic ideology opposed to Russian Communism’. In public the bloc was always presented as a means of protection against a revival of German militarism, but ‘the real motivation was frankly stated by the Chiefs of Staff in July 1944’:

We realise that we must on no account antagonise Russia by giving the appearance of building up the Western bloc against her, and that for this reason the immediate object of a Western European Group must be the keeping down of Germany; but we feel that the more remote, but more dangerous possibility of a hostile Russia making use of the resources of Germany must not be lost sight of, and that any measures which we now take should be tested by whether or not they help to prevent that contingency ever arising.

Simpson convincingly demonstrates that the object of the European Convention on Human Rights in 1950 was ‘conservative: to protect what already existed from the totalitarian threat’. It was ‘a declaration of Western ideology; in a non-derogatory sense therefore its function was propagandist.’ The rights set out in the Convention and its subsequent protocols accurately reflect this: liberty, due process, speech, religion, property, the free vote all figure prominently, but there is no room for socialistic or egalitarian values (the only kind of equality that was assured, in Article 14, was the equal enjoyment of the other Convention rights). Throughout its drafting, there was much concern about giving the document teeth: this ‘emphasis on juridical enforcement, and urgency . . . reflected the fears of the period’: a Communist takeover of Western Europe was ‘viewed as a serious possibility’.

To meet this anxiety, the Convention established a new European Court of Human Rights, serviced by a Commission on Human Rights, to adjudicate in disputes between European states on the rights set out in the Convention (and also – but only if a state agreed – to allow individual citizens to take cases of alleged abuse to the Commission and Court). At the same time as this restructuring was taking place, the defeated European powers were undergoing a similar constitutional makeover, with the same end in view. Both the new German and Italian Constitutions provided for plenty of ideologically loaded human rights. In a recent issue of the Israel Law Review, Michael Mandel quotes a speech made by Palmiro Togliatti, the Secretary of the Italian Communist Party, in the Constituent Assembly charged with designing the new legal order:

All these provisions are inspired by fear: it is feared that tomorrow there could be a majority that is the free and direct expression of those working classes who want to change profoundly the political, economic and social structure of the country; and for that eventuality it is desired to have guarantees, to place impediments: from here the heaviness and the slowness of the legislative process and all the rest; and from here that bizarre creature the Constitutional Court, an organ that nobody understands and thanks to the institution of which some illustrious citizens will be placed above all the assemblies and the whole system of Parliament and of democracy to be its judges.[*]

This more or less describes the job the Convention ended up doing in the first forty years of its existence. When the issues before the Court or Commission were technical in nature, or when they involved questions of individual dignity, both bodies could be relied on to be expansionist and courageous in their interpretation of human rights. But when the German Communist Party challenged its prohibition in the 1950s as an impermissible infringement of its right to freedom of association under Article 11 of the Convention, the Commission dismissed the complaint without even letting it get as far as the Court. In doing so, it drew attention to Article 17: ‘Nothing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.’ Much later, the notorious ban on left-wing radicals taking jobs in the German civil service was upheld, this time by the Court itself, as involving no breach of freedom of expression: the case, it said, was about an entitlement (to public employment) not to be found in the Convention. In the final years of the Cold War, the Commission legitimised Margaret Thatcher’s decision to ban unions at GCHQ by finding that this breach in freedom of association had been ‘necessary in a democratic society’. Similar reasoning led to the dismissal of claims from both British and Irish applicants that the media bans imposed on Republican speech in both jurisdictions violated the right of the persons concerned to freedom of expression under Article 10.

Given the ideological origins of the human rights era, it is not surprising that the end of the Cold War produced a new atmosphere at the European Court. Here finally was a chance to show how pure and universal human rights could be. The German ban on public sector employment was now found to infringe Article 10. In 1998, the Court found the decision by the Turkish authorities to ban Communist and socialist parties to be an infringement of freedom of association. In an immensely important case in July 1989, Soering v. United Kingdom, the Court unanimously ruled that it was a breach of the Convention to return a person to the United States to face proceedings which would be likely to lead to the death penalty, since the ‘death row phenomenon’ was so awful as itself to constitute a breach of Article 3’s prohibition on ‘inhuman or degrading treatment or punishment’. This was followed up in November 1996 by the ruling in the Chahal case, in which the Court held (by 12 votes to 7) that to return a Sikh militant to India would involve Britain in a breach of the Convention:

The prohibition provided by Article 3 against ill-treatment is . . . absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another state, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.

This was part of the case law which came with the Convention when it was incorporated into UK domestic law on 2 October 2000.

The years from 1989 to 2001 may come to be seen as a brief liberal hiatus between two great wars. Writing well before 11 September, Simpson describes the dilemma for human rights: ‘It is in conditions of conflict and emergency that states are most likely to trample on individual rights in the name of the public good, yet it is in relation to just such situations that states are most unwilling to accept any restraint on their power. The risk is that, in consequence, human rights come to be treated like lifts or elevators, which, one is told, should not be used in fires, just when they are what seem to be urgently needed.’ The Convention contains a right to liberty, in Article 5, which is subject to a range of exceptions, one of which covers ‘the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country’. In March 2000, the Government established Oakington Reception Centre ‘to deal quickly with asylum applications, many of which prove to be unfounded’. The main attraction of Oakington for the Government was that applicants could be detained for up to seven days merely if it was felt that their applications could be speedily processed: fear of absconding was not required as a precondition for this detention.

On 7 September 2001, the Oakington regime was held by Mr Justice Collins in the Administrative Court (the judicial body mainly involved in overseeing the legality of government action) to be a breach of the asylum seeker’s right to liberty:

It is clear that the detention of a person seeking entry and falling within the first part of Article 5.1(f) must be to prevent that person effecting an unauthorised entry. The language of Article 5.1(f) makes that clear. Thus detention cannot be justified on the ground that it may speed up the process of determination of applications generally and so may assist other applicants. Equally, it is plain that detention cannot be justified on the basis that it might deter others from seeking to enter by making false claims for asylum . . . Once it is accepted that an applicant has made a proper application for asylum and there is no risk he will abscond or otherwise misbehave, it is impossible to see how it could reasonably be said that he needs to be detained to prevent his effecting an unauthorised entry. He is doing all that he should to ensure that he can make an authorised entry.

David Blunkett reacted angrily to this judgment, referring in disparaging terms to lawyers in general and specifically to those who saw in this decision an opportunity to orchestrate a large number of actions for damages against the state. An appeal was announced. Four days after the ruling, the attacks on the World Trade Center and the Pentagon took place. When the appeal came up for hearing, the lawyer who had succeeded in the original case now found himself up against the Attorney General, Lord Goldsmith QC, the leading QC David Pannick and the top public law junior Michael Fordham. Blunkett’s plea, made four days before when announcing new anti-terrorism measures, now echoed across the room: ‘I appeal to our judiciary to work with us to ensure that democracy in all its guises can operate fairly and openly, rather than be held up to ridicule by those who should be upholding it.’ The Court of Appeal found for the Home Secretary, unanimously overruling the judge below.

In contrast to the decision of Mr Justice Collins, the reasoning of the Court of Appeal is difficult to follow. The judgment opens not with the case histories of the applicants before it but rather with a collection of statistics which demonstrate that ‘coping with the huge number of asylum seekers poses heavy administrative problems’ for the authorities. Then, in a manoeuvre characteristic of the ‘original intent’ approach to constitutional interpretation favoured by some critics of judicial activism in the United States, the original purpose of the European Convention is invoked:

As a starting point . . . it seems to us sensible to consider the position . . . when the Convention was agreed. In agreeing to Article 5, were member states binding themselves to grant to aliens a licence to enter their territories and to enjoy liberty, albeit subject to some restrictions, within them, pending the determination of applications for a more formal authority to enter? We do not believe that they were.

As far as Article 5 is concerned, the Court of Appeal notes that the European Court recently restated that restriction on liberty was, in the context of asylum law, ‘acceptable only in order to enable states to prevent unlawful immigration while complying with their international obligations’ and that ‘states’ legitimate concern to foil the increasingly frequent attempts to get round immigration restrictions must not deprive asylum seekers of the protection afforded by these conventions,’ but adds that it is ‘not appropriate to treat a passage in a judgment of the European Court as if it were a statutory provision and to resort to minute textual analysis for this purpose’. It seemed to the Court of Appeal that, after all, the European Court did regard it as legal

to confine aliens in a centre of detention pending deportation . . . for the time that is inevitably needed to organise the practical details of the alien’s repatriation or while his application for leave to enter the territory in order to be afforded asylum is considered, provided always (1) that confinement is accompanied by suitable safeguards and (2) that it is not prolonged excessively.

Tested against this new version of Article 5.1(f), which has left the actual words of Article 5 far behind, the Oakington regime passed with flying colours: detaining a person to assess whether entry should be authorised is apparently the same as detaining that person to prevent his or her unauthorised entry.

This decision is now under appeal to the House of Lords. The case is astonishingly similar to the most famous detention case of World War Two, in which their Lordships by a majority of four to one interpreted a ministerial power of internment in a way that gave the Home Secretary far wider and more subjective powers than the legislation seemed, on the face of it, to permit. Lord Atkin disagreed so vehemently with the decision it caused a serious rift with his colleagues. Generations of law students have ever since sided with Atkin, and even Lord Diplock (not noted for his civil libertarian sympathies) referred to the decision of the majority as wrong, albeit ‘excusably’ so. Liversidge is just one of many decisions in wartime in which the judicial branch has bent over backwards to facilitate the exercise of executive power. The US Government recently apologised to Americans of Japanese descent for the internment, in due course legitimised by the Supreme Court, that took place after the attack on Pearl Harbor. Will an apology be forthcoming in a decade or so to those hundreds of US citizens and aliens who are being held against their will because they have some real, imagined or trivial connection with the perpetrators of the 11 September attacks? ‘We started with the hijackers, their credit-card records, their phone records’, Michael Chertoff, the attorney in charge of this process, recently told the New Yorker, ‘and peeled back the onion from there.’ Hindsight is a wonderful thing; it is easy to be liberal when you know the story has a happy ending.

It is asking too much of courts to be the conscience of a democracy in a time of crisis. For all its peculiarities of reasoning, the outcome of the Oakington appeal can only have been surprising to those who believe that judicial adjudication takes place in some timeless, intellectual vacuum. Lord Hoffmann put it succintly in a recent case on terrorism, in which argument was heard before 11 September, but the judgments were handed down after it:

I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.

In the new order, much will depend on the integrity of political leaders and the civil libertarian energy of Parliament (and by extension the people). The risk to civil liberties is particularly high when the need of senior ministers to act coincides with the interests of the secret state in forcing through a hitherto unacceptable extension of its power. The actions of Irish Republicans have provided the traditional alibi for such actions: actual or hypothetical attacks served as the justification for radical extensions of state power in 1939, 1974, 1989, 1996 and 1998. Now it is a single horrifying attack beyond our borders that is being called on. The Government feels it needs to do something; the secret state has things for it to do: it is a lethal combination.

On 15 October David Blunkett announced his intention to introduce new emergency anti-terrorism legislation. Among the proposals in the Anti-Terrorism, Crime and Security Bill are measures to facilitate the implementation of EU initiatives on police and judicial co-operation, to attack the financial capacity of suspected terrorists, to prohibit the incitement of religious hatred and to equip law enforcement authorities with new powers to secure information. In Parliament Blunkett declared that he was ‘determined to strike a balance between respecting our fundamental civil liberties and ensuring that they are not exploited’. In a later press briefing he declared that he intended to make the punishment for bomb hoaxes more severe, and to apply this new penalty retrospectively, suggesting that he hasn’t a firm grasp either of civil liberties or of the rule of law: the retrospective dimension to the penalty has been dropped from the Bill. The most controversial of his legislative proposals concern extradition, deportation and asylum:

I think that we all accept that there is a compelling need for more effective powers to exclude and remove suspected terrorists from our country. We rightly pride ourselves on the safe haven that we offer to those genuinely fleeing terror. But our moral obligation and love of freedom does not extend to offering hospitality to terrorists. That is why, both in the Emergency Terrorism Bill and in a separate extradition measure, I will ensure that we have robust and streamlined procedures.

I believe that it will be possible to achieve these changes without substantial alteration to the Human Rights Act 1998. Nevertheless, it may well be necessary, using Article 15, to derogate from Article 5 of the European Convention. That would allow the detention of foreign nationals whom we intend to remove from the country, and who are considered a threat to national security. This would occur in circumstances falling outside those permitted by Article 5 of the European Convention, but within the scope of Article 1f of the 1951 Refugee Convention.

I am also looking to take power to deny substantive asylum claims to those who are suspected of terrorist associations, and to streamline the existing judicial review procedures while retaining the right of appeal. Appropriate safeguards would apply to any such derogation.

In Blunkett’s eyes, to be a ‘terrorist’ (however defined; perhaps Nelson Mandela is an ex-terrorist?) is to be outside the law, or at least to be a lesser kind of human. These proposals challenge the universalism at the heart of the human rights project. What the Soering and Chahal cases triumphantly vindicated was the humanity of the applicants. Neither where they were from nor what they had done mattered in the light of what might be done to them. Under the guidance of the European Court, the ideology of human rights insists that the person be protected and nurtured by virtue of his humanity and irrespective of gender, nationality or criminal propensity. But the specifics of our identity matter to us, and make us what we are. Norman Tebbit’s ‘cricket test’ provoked outrage precisely because it hit a sensitive spot in the liberal psyche. Blunkett is exploiting this disconnection between popular and pluralist notions of identity in proposing a variety of second-rate legal safeguards for persons seeking to reach this island from those parts of abroad too impoverished and unstable to warrant our extending a welcome to them.

The state of emergency anticipated in the Home Secretary’s Commons statement was duly announced the day before the Bill was published. There is, it seems, a ‘public emergency threatening the life of the nation’, an assertion which is certain to be challenged in due course before both the local and European Courts. When such a case does arrive, the judges will have to decide how far to collude with the Home Secretary in his belief that, on the one hand, there is a danger of this magnitude and, on the other, that the problem can be fixed for ever by throwing a handful of people into prison without trial and never letting them out.

The Bill makes it clear that Blunkett intends that foreigners in Britain who are deemed a threat to national security, but who cannot be removed because no country can be found to take them in, should be locked up indefinitely. No charges need be brought against them. Indeed no suspicion of any kind of criminal conduct capable of being tested in court will need to be established. The House of Lords ruling from which Lord Hoffmann’s remarks about the role of the judiciary were taken makes clear that decisions about such threats are primarily a matter for the Home Secretary, and it is highly improbable that such political assessments will be subjected to anything other than the most superficial judicial oversight. No doubt when this legislation is finally enacted, it will contain review clauses, ostensible opportunities for bail, independent quasi-judicial tribunals and the usual paraphernalia of ersatz legality. But the reality will be that the internment of aliens will have become part of our ‘ordinary’ anti-terrorism law. To describe the right not to be detained indefinitely without trial an ‘airy-fairy’ civil liberty, as the Home Secretary has done, is to display a disregard for the fundamental principles that underpin our society which is as arrogant as it is ignorant. The executive has tried once before to dispense with the rule of law in this blatant a fashion, in the 17th century. The number of national security internees might rise or fall depending on international events and the personality of the Home Secretary of the day, but once ensnared in the process these threatening aliens will find it very hard to escape. They would be better off in our comparatively benign criminal justice system, where at least the punishment is finite and for a particular act.

Perhaps the Tebbit in us all will view these powers as justifiable because applicable only to the wrong kind of foreigner. (We can be pretty sure that the internment camps won’t be full of Americans and Australians.) But the snooping that the Government plans to sneak into our law on the back of 11 September warrants close attention from even the most loyal Britons: the proposals will finally shatter the illusion that an Englishman’s home is his castle, and turn all our letters, phone calls and e-mails into public acts committed in the presence of government. The potential of the proposals goes far beyond the imperative of apprehending ‘terrorists’. Personal information held by central and local government will be routinely shared with police and intelligence services. Although the highly controversial Regulation of Investigatory Powers Act, dealing with this issue, was enacted only last year, there is already a perception that more power is needed. The Terrorism Act 2000, too, made permanent a series of new crimes such as inciting terrorist acts abroad and directing, at any level, the activities of a terrorist organisation: legislation that one might have expected to have been used against the foreign subversives who supposedly stalk our streets. The nature of these new offences is indeterminate and, as a result, the evidential hurdles placed in the way of a successful conviction are not high, particularly if the ban on the use in court of evidence obtained in telephone transcripts is lifted. (This is, however, strongly resisted by the police authorities – if such evidence were used to secure convictions, they argue, criminals would simply be more careful about who they chatted to.) Now we are to have new crimes, such as not disclosing information about terrorism and refusing to remove a disguise. The executive branch is voracious in its search for new powers, and it is always simpler to plan new legislation than to ask why the old powers have not achieved what they were designed to do. Internment and pervasive surveillance are so much easier than intelligence and investigation, with their old-fashioned, practically outmoded conclusion: a criminal charge arising out of provably bad conduct.

The human rights ‘community’ has been in a state of disarray since 11 September. Some activists have taken the Government’s side, arguing that the Human Rights Act and the European Convention are not so much human rights instruments as charters for appropriate repression. Others have gone back to attending anti-war rallies, criticising America and attacking law and order policies, as if nothing had changed. The clever cowards have chosen silence. To some extent the human rights advocates have had it too easy; for years morality has been assumed to be on their side.

We need to connect human rights and pluralist democracy with something more than a bland willingness to prove our commitment to freedom by allowing our society to be destroyed. The challenge to pluralism posed by the attacks of 11 September demands a powerful response, one that has domestic as well as international dimensions. We should not, however, forget the origins of our democratic culture. Our liberal, tolerant, diverse society does not exist because it has been carefully nurtured by a benign state. The police, the Army and the intelligence services make the most of the fact that we are a tolerant society, but they did not will this outcome or celebrate its arrival. The society we have now has been constructed in the teeth of the opposition of such bodies, which are historically the antagonists of pluralism and human rights. The best contribution civil society can make to the war effort is strongly to reassert the values of legality, civil liberties and tolerance which combine to make our culture so agreeable and our freedom so secure. Nothing stands still and, after 11 September, not to act to defend civil liberties is to collude in their further decline. Will the aliens in our internment camps soon be joined by ‘extremist’ Britons and others who ‘threaten national security’? Will Salman Rushdie’s next critique of Islam be officially persecuted as an incitement to religious hatred? When will the police routinely eavesdrop on us in the course of pursuing any kind of investigation and without the need even for a token judicial warrant? The most dangerous opponents of our open society may not be those hiding in the caves of Afghanistan.

[*] ‘A Brief History of the New Constitutionalism, or “How We Changed Everything so that Everything Would Remain the Same”’, Israel Law Review, Spring 1998.