Fortnight Publications Ltd.

Some Hard Labour for Civil Rights MovementAuthor(s): David HowarthSource: Fortnight, No. 270 (Feb., 1989), pp. 11-12Published by: Fortnight Publications Ltd.Stable URL: http://www.jstor.org/stable/25551841 .

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1970s. It was only a notice then of derogation on the grounds that an

emergency existed that excused the government from its obligations. The court's ruling, however, was clearly one of the pressures that

brought about the end of internment in the 70s. Its recent decision is likely to precipitate an important change too?even though that has been de

layed by the 'temporary' derogation notice. But that is exactly the

underlying purpose of the convention. It is of less practical use to in

dividuals whose rights have been violated?bearing in mind the time the

process takes?than to the effective enforcement of inter-state guaran tees. It is part of our international obligations to uphold the right to liberty.

Why article 5 (3) is so important is that it attempts to offer a procedural

guarantee to anyone arrested that, 'promptly', an independent person? someone 'authorised by law to exercise judicial power'?should assess

the arrest. Whether this is to test its legality (that it is based on some

reasonable suspicion) or simply to consider the conditions of the deten

tion or the state of the accused, it constitutes an important guarantee. If this guarantee were met, it might have a significant impact on the

admissibility of evidence in court relating to confessions. Under the

Emergency Provisions Act, to be admissible confessions need not be

voluntary, but they must not be obtained by inhuman and degrading treat

ment or by oppression where the judge feels admission would prejudice the interests of justice. In that context, and that of the Diplock courts, the

article 5 (3) safeguard is crucial.

If article 5 (3) is so important, then why did the extended arrest powers of the Prevention of Terrorism Acts since 1974 (and the earlier Northern

Ireland legislation) go unchallenged for so long? The main challenges to

counter-terrorist legislation had previously concentrated on the appar

ently more extreme provisions, such as internment. But then the earlier

derogation remained in force until 1984, thereby rendering challenges futile. The applications in the Brogan case, lodged with the European

Commission between October 1984 and February 1985, were made as

soon as possible in effect after the withdrawal of the derogation notice.

Compliance with article 5 (3) is hardly the most onerous of burdens, nor one which weakens the ability to fight terrorism. In other decisions the

European Court of Human Rights has given considerable latitude to the

definition of an 'officer authorised by law to exercise judicial power', and

clearly the forum for this supervision need not be an open court.

Nor does safeguarding the rights of the suspect amount, as Mr Hurd

claimed, to "grafting the procedures of one system on to the other". As far

as the investigation of other crimes, including serious ones, is concerned, there is already a form of judicial supervision of those detained for

extended periods, set out in the Police and Criminal Evidence Act of 1984

(being extended in amended form to Northern Ireland). The other concern

so far expressed by the home secretary?that "information about terrorist

intentions... does not find its way back to the terrorists as a consequence of judicial procedures'*?would seem hypothetical, rather than real.

The present spiralling attempts to counter terrorism have raised the

issue of what mechanism might be utilised to keep them within acceptable limits. Certainly, the invocation of a derogation notice seriously curtails

supervision of counter-terrorist measures, though it does appear all sides

hope that derogation will be temporary?only for so long as it is necessary to reform the law as the European Court's decision requires.

But not only are international supervisory fora very weak when faced

with a government's declaration of a state of emergency?national legal fora suffer in the same way. The experience of countries with bills of

rights is that their constitutional or supreme courts are severely restricted

when faced with declarations of states of emergency. In other words

legality still tends to be avoided.

Say the UK had a bill of rights, and suppose it did not declare a state of emergency and give notice of derogation. Would we, even then, expect Britain's courts to exercise more effective safeguards against politically

unacceptable legislation? Against, for example, legislation giving exten

sive powers with insufficient safeguards, as in the Prevention of Terror

ism Act case? Against over-wide powers of detention during a search for

munitions, as in clause 21 of the new Prevention of Terrorism Bill? Or

against changes to the democratic system, as with the nonviolence

declaration in the Elected Authorities Bill or the broadcasting ban?

Although it might be thought that a national court, such as the House

of Lords, would reach the same decisions as the European Court in

interpreting a constitutional document?such as the European Conven

tion on Human Rights incorporated into domestic law?this might not be

the case. The European Court as outsider might still be able to offer better

scrutiny?particularly where, as here, it is recognised that the context of

terrorism in Northern Ireland is relevant to the judicial determination.

Judgments about the balance of rights and powers contain implicit distinctions between what is necessary, what is expedient and what is

convenient. A national court might be less able to distance itself from

existing practices (a body of law which has existed for some time), from

its common acquiescence to the arguments of those in government about

their needs in relation to terrorism and, especially, from its concern with

individual remedies and the 'thin end of the wedge' consequence of

granting them. The European Court is less susceptible to these pressures

(indeed it has reserved the issue of remedy and compensation in this case). The European Court of Human Rights should be recognised as playing

a positive role. It does not deserve to be lambasted or ignored. It took some

four years for the specific violations ofthe rights to liberty in this case to

be recognised as such. Now the court has pronounced it can only be hoped that remedial legislation will take much less time to achieve. e

Some hard Labour for civil rights

I-ICHARTER '88l-1

WE call... for a new constitutional settlement which would:

Enshrine, by means of a Bill of Rights, such civil liberties as the right to peaceful assembly, to freedom of association, to freedom from discrimination, to freedom from detention without trial, to trial

by jury, to privacy and to freedom of expression.

Subject executive powers and prerogatives, by whomsoever

exercised, to the rule of law.

Establish freedom of information and open government. Create a fair electoral system of proportional representation. Reform the upper house to establish a democratic, non-hereditary second chamber.

Place the executive under the power of a democratically renewed

parliament and all agencies of the state under the rule of law_^^^

Ensure the independence of a reformed judiciary. .^__HNJHR____k Provide legal remedies for all abuses of power by the

o^^^^^mB state and the officials of central and local government. JW 1JH Guarantee an equitable distribution of power between W^^> i^^fl local, regional and national government. I i? I

' 'B

Draw up a written constitution, anchored in the idea of I " - jB

universal citizenship, that incorporates these reforms. \ ifwp: B A reform programme for Northern Ireland?

~^^Bk*> ;;^HK Roy Hattersley (inset) has other ideas ^^tgtBBr9B^^^m^tk

movement CHARTER '88, the campaign for

constitutional change in Britain, has

attracted 10,000 supporters. But it has

also attracted some notable enemies. And it is

not just right-wing journalists who have been

sneering and jeering. The most dismissive of its

critics are in the leadership ofthe Labour party? most notably the deputy leader, Roy Hattersley.

His diatribes in the Guardian against central

features of the Charter, such as PR and a written

constitution incorporating a bill of rights, have

caused dismay among Labour's largely middle

class following. They throw much light on what

Charter '88 is really about.

Consider the following Hattersley claims:

1. Britain cannot have a real bill of rights or

an effective written constitution because Par

(liament would always have the legal power to

repeal them.

2. Proportional representation would mean

coalitions, and coalitions would mean that

the government's policy would be a compro mise for which no particular party had a

mandate from the electorate.

3. A bill of rights would protect only negative

I freedom and would prevent Labour from I radical redistribution of wealth.

Fortnight February 11

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The first claim asks us to believe that a par liament whose authority would derive solely from the new constitution would dare to amend

that constitution in violation of its express terms.

The second assumes that single-party govern ments under the present system have 'mandates'

for their programmes, whereas all recent gov ernments have been elected with less than 45 per cent of the popular vote. As for the third point,

anyone who had bothered to read the constitu

tions of modern western democracies would

know they are mainly about conferring powers, not restricting them. Neither the French Social

ists nor the West German Social Democrats

have felt the need to call for a British non

constitution in order to enact measures such as

wealth taxes or industrial democracy. What is it, then, that bothers the Labour

leadership about Charter '88? They would agree with its underlying assumption that individual liberties are being undermined in Britain, and

surely they would not endorse the various laws

and governmental actions which a bill of rights would outlaw?the restrictions on reporting the

views of terrorist supporters, the attempted sup

pression of Spy catcher or the bizarre new Secu

rity Services Bill, which among other outrages

grants the home secretary powers to authorise

MI5 searches that amount to burglaries. What is

clear from Mr Hattersley's comments is that for

some reason he is clinging to the doctrine of

parliamentary sovereignty, the doctrine that there

should be no legal limits or controls on what

Parliament can do by legislation. The Charter quite openly calls for limitation

after limitation, not only on the ultimate legal

sovereignty of Parliament but also on the effec

tive power of national government. Consider, for instance, the difference between an external

obstacle to national and parliamentary sover

eignty, such as the European Convention on

Human Rights, and the sort of internal limitation

proposed by the Charter, such as a judicially enforceable bill of rights.

British governments are often found to have

violated the convention and, when they are, they

normally move to change British law. But they need not do so if they deem it inexpedient?as, for instance, in the Brogan case. The only pen

alty is national and international opprobrium. Under an internal bill of rights, however, the

Prevention of Terrorism Act would simply cease

to be law. If the government continued to apply

it, the courts would not co-operate?indeed there

would be a constitutional crisis.

Still the question remains: why is Mr Hatter

sley so attached to the old orthodoxy? Civil libertarians in Britain have for a generation

belonged to one of two camps. The first has

always believed in what Charter '88 now pro

poses, tending to support the Liberal party, the

SDP/Liberal Alliance and now the Social and Liberal Democrats (Charter r88 is virtually iden

tical with SLD policy). The other camp, proba

bly the larger, has supported the Labour party. Labour's self-image is that of a dangerously

radical party?far more radical than the conti

nental European social-democratic parties. It

likes to think of itself as planning the transfor mation of society, albeit by parliamentary means.

So, Labour has always ruled out any limitation

on governmental power, since one never knows

when extreme measures might be necessary to

overcome the sabotage of Labour's programme

by the establishment?especially by the judges. Labour-supporting civil libertarians would

claim, however, that none of this mattered since

Labour politicians were inherently virtuous on

issues of personal freedom. The best way to

protect civil liberties, accordingly, was to elect

a Labour government. (Those in the first camp were understandably sceptical: who was it who

passed the racist immigration law of 1968 and

the original Prevention of Terrorism Act, and

who instigated the 70s Official Secrets trials?) In order, therefore, for Labour supporters to

be converted to Charter '88, they have to aban

don one of two things?the fond notion that

Labour is dangerously radical or the belief that

Labour is going to hold office ever again. In fact

Charter '88 is supported by both sorts of person. On the one hand are those who want to convert

Labour into a mainstream reformist European social-democratic party, in the hope of winning

power by hijacking the SLD vote. On the other are those who think Labour will never win again and that the best one can now do for civil

liberties is to campaign alongside non-socialists

for limitations on state power?these being

necessary when people who are not virtuous are

likely to be at the helm for some time.

It would be inconceivable for someone in

Roy Hattersley's position to acknowledge that

Labour cannot win a general election. But nei

ther can he acknowledge that Labour is not

really a party of social revolution by parliamen

tary means. If he did he would risk splitting the

party. And one suspects that, however ridicu

lous it might seem, he also fancies himself as a

radical socialist, way to the left of the likes of Rocard and Gonzalez. The old orthodoxy of

maximal state power must therefore remain.

The future of Charter '88 is, like so much in

British politics, bound to the future of the La

bour party. It is conceivable, though not likely, that Labour will both adopt the Charter and keep itself from splitting?in which case both its

Under an internal

bill of rights, however, the

Prevention of

Terrorism Act

would simply cease to be law

prospects and those of the Charter would be

fairly good. It is also conceivable, but unlikely, that Labour will adopt the Charter but split?in

which case the prospects of the Charter will

depend on how well the Chartist Labour party gets on with the Democrats. More likely than

either is that Labour will reject the Charter

except for those items which, in isolation, do not

limit governmental power. The Charter would

then become wholly dependent on the electoral

fortunes of the SLD?at the moment not very

good, although that might easily change. Most likely of all, Labour will adopt a wa

tered-down version of the Charter?for example not proportional representation but the alterna

tive vote system, not a bill of rights entrenched

in a written constitution but a declaratory act of

Parliament and a code of practice. Sufficient,

perhaps, to persuade Labour civil libertarians

not to switch to the SLD but not enough to

persuade SLD voters to vote Labour. The result?

Another Tory government. Charter '88 therefore marks an important

change in the intellectual climate of British

politics, but whether anything else will change is

very questionable.

Heads Sinn

Fein wins ... THE NONVIOLENCE declaration has

prompted rumours that a new board game is

to be marketed in the run-up to the May elections, Robin Glendinning writes. The

provisional title is SB, which stands either for 'the game of Successive By-elections' or

'how to play Silly Buggers with the latest

piece of anti-terrorist legislation'. It is played out in a series of pre-determined stages.

Stage one: As the new legal bar on councillors

does not affect those contesting elections, Sinn Fein candidates are free to say what they like during the campaign. (They are also free

in this period from the government's media

ban.) So they say what they like as freely as

they like and as many get elected as possible.

Stage two: Sinn Fein councillors sign the decla

ration, with their fingers crossed or making statements with a sub-text unamenable to the

law. I suggest: 'We sign this declaration in

the full knowledge that the people will expect us to overcome all anti-democratic legal bars

placed in our way by the colonial power. The

people are well aware of Sinn Fein policy.'

Stage three: Announcing they have defeated the efforts ofthe colonial power to ban them, Sinn Fein councillors take their seats on

behalf of the free people who elected them.

Stage four: After the publicity surrounding

stages one, two and three has died down, se

lected Sinn Fein councillors in area where

there is a nationalist majority on the electoral

roll begin to make provocative statements in

the chambers which clearly break the new

law.

Stage five: Loyalists take Sinn Fein members to court and, after extensive legal wrangles

which attract worldwide publicity, the coun

cillors are deprived of their seats.

Stage six: By-elections are fought and won by new Sinn Fein councillors. The SDLP does

not contest for fear of being labelled pro British and the new councillors are returned

triumphantly to the chambers at the head of

torchlit processions. They make ringing

speeches about having overcome, on behalf

of the Risen People, the anti-democratic ef

forts ofthe colonial power to deny the people' s

will.

Stage seven: The unseated Sinn Fein council

lors go to the USA on a fundraising tour.

Stage eight: As soon as the maximum publicity from stages five to seven is exhausted, the

newly-elected councillors repeat stage four.

Stage nine: Frustrated and furious loyalists demand the government end this charade by

banning Sinn Fein. Sinn Fein challenges the

government to act in this colonial and un

democratic fashion.

Stage ten: This is the government's move. Ei

ther it goes down the road of even more

repressive legislation or it tamely abandons

the Elected Authorities Act. The winner of the game is the player who can predict which

move the government will make.

The game, of course, has other refinements?

appeals to higher courts, including the Euro

pean Court of Human Rights, for instance.

All of these activities should ensure that the

Sinn Fein issue dominates local government in Northern Ireland for the four-year council

term.

The game then runs its course?in time for the

next local government elections.

12 February Fortnight

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