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Last Updated: Wednesday, 26 January, 2005, 20:50 GMT
Terror plan may spark fresh outcry

By Jon Silverman
Legal affairs analyst

Swapping one form of civil rights infringement for another? That's one reading of the new anti-terror detention proposals made by the Home Secretary Charles Clarke.

His package of measures addresses the main point of the Law Lords' judgement before Christmas - that it is unlawful to discriminate against foreign-born terrorist suspects.

Protest outside Belmarsh
Existing powers were challenged on human rights grounds
But by bringing British citizens within the ambit of the new "control orders", the home secretary is laying himself open to human rights challenges which could see him in another losing battle with the judges.

One of the most cherished principles of English common law is habeas corpus - the right to challenge unlawful detention.

Mr Clarke is proposing that the new orders will be imposed by him, as home secretary.

Eric Metcalfe, of the legal and human rights organisation Justice, said that was unacceptable.

"These plans are a fix, not a solution. The power to impose control orders should be in the hands of the courts, not the secretary of state," he said.

Though a civil order, any breach would be a criminal offence.

This is similar, Mr Clarke said, to the anti-social behaviour order with which we are all familiar.

But he omitted to point out that the evidence on which an Asbo is imposed has to pass the criminal standard of proof - in other words, be beyond reasonable doubt.

The comparison, then, does not appear to hold water.

'Trust me'

The surveillance which will help restrict the movement of suspects under "control orders" is not much different from measures already in place to curb the movement of paedophiles and other dangerous offenders.

The technology, such as electronic monitoring and satellite tracking, is becoming ever more sophisticated.

A former chief constable, who did not wish to be named, said: "We've got to try different methods for curbing the movement of terrorists and I see nothing wrong in principle with this.

Charles Clarke
Mr Clarke inherited the issue from David Blunkett
"I can already hear the police screaming about the implications for resources, but look how expensive it is to keep someone locked up in Belmarsh."

One of the most surprising aspects of Mr Clarke's response to the Law Lords' ruling was his rejection of the use of intercept evidence in court as a means of securing a criminal conviction.

He believes that it would not be sufficient to bolster the case against anyone charged with terrorism.

That will make civil rights lawyers even more convinced that what he is proposing is a new form of executive detention, largely based on a "trust me" principle.

The lawyer representing some of the detainees, Gareth Peirce, said bluntly: "He's giving himself the powers of a dictator."




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