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Algerians win new round in human rights battle against deportation

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Six Algerians considered “a threat to the national security of the United Kingdom” have won a new round in a legal battle that has, in three cases, lasted nearly eight years to resist deportation on human rights grounds. The Case of BB & Others v Secretary of State for the Home Department considers how far poor treatment and physical conditions (rather than torture) in foreign detention centres lacking British standards may justify a human rights bar to deportation. The issue is about “the requisite minimum level of severity needed to breach Article 3″ (of the European Convention on Human Rights on torture and inhuman treatment).

An agreement is in place between the UK and Algeria that terrorism suspects will not be tortured or mistreated on their return. However, the Court of Appeal decided that a tribunal (SIAC) that found the Algerians could be deported had failed to give full consideration to whether their potential detention and interrogation for up to 12 days by military authorities in Algeria would itself constitute “inhuman treatment” under Article 3. 

The court also questioned whether there were adequate safeguards to verify whether the Algerian authorities were observing the assurances given to the the UK Government about treatment of deportees. The assurances included Algeria’s acceptance in the case of any deportee of “the right to respect, in any circumstances, for his human dignity”.

The Special Immigration Appeals Commission (SIAC) will now have to look at the case again and consider evidence that conditions at Antar barracks interrogation centre in Algiers, where the men would be held temporarily, are not acceptable. 

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Torture: A history of hypocrisy

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We do not torture people, say the British authorities. In 2010 the former prime minister said so in February. The same year the Foreign Office said so in May. They have repeated it in April 2012 in the context of the extraordinary rendition cases: “The UK government’s policy is clear: we do not participate in, solicit, encourage or condone the use of torture or cruel, inhuman and degrading treatment or punishment for any purpose. We have consistently made clear our absolute opposition to such behaviour and our determination to combat it wherever and whenever it occurs.”

The Consolidated Guidance to Intelligence Officers on interviewing detainees uses the same standard formula: “We do not participate in, solicit, encourage or condone the use of torture or cruel, inhuman or degrading treatment or punishment for any purpose”.

The head of MI6, Sir John Sawers, has said so: “We have nothing whatsoever to do with [torture]”.

We know in our hearts that we do not torture. It is something that is deeply etched on our collective psyche, part of our ancient legal tradition and an essential feature of our British values.

Indeed, so clear are we that we do not torture that we did not feel it necessary to abolish torture until 1988 – as a result of obligations under international human rights law.

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Lord Bingham: the rule of law or bending the rule of law?

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The death of Lord Bingham, the former senior Law Lord (senior appeal judge in what is now the UK Supreme Court), silences a significant voice on the issue of how far incursions into human rights by the government can be justified by the “war on terror”.

Lord Bingham’s was a committed but moderate view which led him, perhaps unfortunately, to a sense that the judiciary must in a democracy with a sovereign parliament, craft a compromise on human rights with the political sphere, the legislature and the executive. His two judgments in the linked cases commonly known as “A v Home Secretary”, one on torture and one on detention without trial, bear witness to such a disturbing compromise. The torture case allows the possibility of people being detained without trial on torture evidence. The detention case judgment balked at simply declaring detention without trial wrong and refused to deal with whether there truly was an emergency in post-9/11 Britain sufficient to justify such detention.

While the cases were based on classic, text book subject matter regarding the rule of law, the use of torture and detention without trial, and Bingham’s rulings did not favour the government, his judgments nevertheless left open wide areas within which the executive may act apparently contrary to those principles.

Take the torture case, (reported as A and others v Secretary of State for the Home Department (No 2) [2005] UKHL 71) which hinged on the use that could be put to torture evidence gathered abroad without the connivance of British authorities. Put briefly, Bingham said that such evidence could not be admitted in a court of law, including in the tribunal set up to hear appeals against arrest and detention of foreign terror suspects, the Special Immigration Appeals Commission (SIAC). However, the authorities could act on such evidence if they came across it – they could arrest individuals on the basis of information got by torture. He says (at paragraph 47):

“I am prepared to accept … that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6.”

Article 3 relates to torture, Articles 5 and 6 to detention and trial. Lord Bingham is saying security services are wholly free to act upon third-party foreign torture evidence to arrest and detain. This might seem reasonable if the security services could make their arrests, question the detainees and find admissible evidence for a trial. Unfortunately several appellants in the case were being held without trial (subject to an indefinitely pending deportation). On the face of it, the government lost the case since it wished to reserve the right to offer such evidence to courts. But Bingham’s subtle distinction not only did not help the appellants but it opened a wide area of operation for the security services to flout human rights. Read the rest of this entry

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