BBC barrister/broadcaster Harry Potter tells us he has never had to apply for a writ of habeas corpus in his 20-year legal career and he knows of no other lawyer who has. His implication, in BBC4’s legal history series, The Strange Case of the Law, was that the great English innovation of the writ of habeas corpus had not only freed political prisoners, defiant jurors and African slaves; its mere existence ensured no modern Government would seek to hold anyone illegally in detention without charge or trial.
How wrong he is. The case of Yunus Rahmatullah, detained since 2004 at Bagram Airbase, is among many that now spoil this rosy view.
Potter is proud of English law: “a boon we have given the world”. He is one of those Whiggish historians of the British Constitution who produce their tallies of great constitutional events – Magna Carta 1215, Petition of Right 1628, Star Chamber Act 1640, the Habeas Corpus Act 1679, Bill of Rights 1689 – and imply that their goodness is unalloyed and that they are, once and for all, accepted, embedded and set in stone forever more.
He gallops through the tale: Magna Carta gave us (by implication) habeas corpus, the right for a prisoner to be brought before a court to verify that his detention is lawful. This (despite later enhancements) was not enough to protect individuals taken out of the English legal jurisdiction, particularly to Mont Orgueil Castle in Jersey, a place for 17th century “extraordinary rendition”. There the writ of habeas corpus did not run, and nor was the Common Law rule against torture effective.
In 1679 the Habeas Corpus Act was passed to deal with such abuses. As a result of this (and later reformed versions), according to Potter, it is taken for granted that everyone should know the charge levied against them. Arbitrary imprisonment “is something we hope has been consigned to history”. The implication is that no British Government would act in a way that would open it up to “the Great Writ”. Motherhood and apple pie spring to mind for this cornerstone of our freedoms, so unassailable is the respect for habeas corpus.
Unfortunately, within days of Potter’s broadcast, the Government was indeed to be found contesting the value of motherhood and questioning the benefits of freshly baked comfort food at the UK Supreme Court. It was fighting a desperate and dishonourable battle to persuade the court that a writ of habeas corpus should not be upheld on behalf of Yunus Rahmatullah, detained by the US at Parwan, near Bagram, a place where, it seems, the writ of habeas corpus does not run and, it is alleged, the Common Law and international law against torture is ineffective.
According to evidence at his Court of Appeal case in 2011, Rahmatullah, a Pakistani captured in Iraq, was handed over to the US authorities by the British SAS. This was followed by his rendition to Bagram in Afghanistan, apparently without the UK being aware of the move. At the time there was a memorandum of understanding in place that the US and Britain would observe the Geneva Convention and international law in its dealings with detainees related to the Iraq war.
‘In every such case every Person so committed restrained of his libertie or suffering imprisonment upon demand or motion made by his Councell or other imployed by him for that purpose unto the Judges of the Court of Kings Bench or Common Pleas in open Court shall without delay upon any pretence whatsoever for the ordinary Fees usually paid for the same have forthwith granted unto him a Writ of Habeas Corpus’ – Habeas Corpus Act 1640
According to this agreement the “detaining power” (Britain in Rahmatullah’s case) can require the return of its prisoners from the “accepting power” (the US) on demand and without delay. The detaining power shall have full rights of access and the detainees’ removal from Iraq should be done only by mutual agreement between the two powers.
This, on the face of it, would give Britain the right and power to demand Rahmatullah’s return from Bagram (where he is held without charge or access to full legal rights) – assuming that Britain did not willingly connive in his removal. In 2009 the UK Government accepted that it should have questioned the removal to Bagram. In 2010 a US detaining board said Rahmatullah was “not an enduring security threat” and he should be released.
The argument of his supporters is that Rahmatullah’s continued detention is unlawful and the UK Government has standing, thanks to the memorandum, to have him released. The Government argues, however, that it does not exercise sufficient control over him to be subject to a writ of habeas corpus.
Potter points out that the Americans have absorbed habeas corpus into their constitutional law and leaves us with the impression that it has been effective in freeing the prisoners of that other extra-jurisdictional Jersey-style facility in Guantánamo Bay. But that’s another story. The legal issue here is whether a writ of habeas corpus would force the UK government to exercise its powers under the memorandum to have Rahmatullah released. In December 2011 the Court of Appeal said yes and issued the writ. It is this position the Government refuses to accept and which it appealed against in the Supreme Court.
Mr Potter sees the parallel between 17th century Jersey and Bagram or Guantánamo. He might well see in Rahmatullah’s plight (and that of many others since 2001) a parallel with his tale of 17th century radicals, such as “Freeborn John” Lilburne, and their rendition to Jersey and other places beyond the jurisdiction of the courts and of habeas corpus – but he makes no mention of such modern cases.
The trouble with the Whig interpretation of history is that it is unilinear and stops about 100 years ago. It assumes that the hard fought for and beneficial development of our constitution can never go back from that point, and if anything, things can only get better.
Mr Potter should abandon his rosy view of the evolution of English law and rework his story, accepting the reality: history repeats itself – first as tragedy and then as another tragedy.
Note: Rahmatullah failed in his Supreme Court case but is now (30 July 2014) suing the UK Government, accusing it of of responsibility for his subjection to torture and abuse over 10 years. Guardian report here.
Since this post we have had the David Miranda affair in which ports and airport transit lounges are deemed beyond normal legal protections for those suspected of involvement in terrorism. The issue is examined here
Materials attached to this post below include case links and habeas corpus legislation
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