Dear Mr Wobbly,
It was reported recently that you might have changed your mind on 42-day detention and decided to support the government. I hope that this is not true because this measure does not deserve to pass.
The government has simply not won the argument on the need for 42-day detention. Why 42 days, when only a short time ago the government of which Gordon was a member called for 90 days? Has the terrorist threat weakened since then, but not sufficiently to stick to 28 days? Does the government keep some kind of “terrorometer” to measure the terrorist threat? Can it say confidently that it is 42/90 or 46.66 recurring per cent of what it was?
Gordon Brown has not helped by the argument he has used repeatedly at Prime Minister’s Questions: the government is asking for 42 days as a precaution because if the country were threatened in the future by multiple terrorist conspiracies it would give a propaganda victory to terrorists to declare an emergency. The first part of this argument tells the country that 42 days is not needed now. The second is an absurdity. If there were an imminent multiple terrorist threat, people would soon know about it without the formality of a declaration. There will be direct evidence of the threat in everyday life (warning notices, heightened physical security, more controls on travellers, maybe even tanks at Heathrow). All of these things would be exploited by terrorists.
The government has made much of its “concessions” on Parliamentary and judicial scrutiny. None of these make any real difference, and they were clearly long premeditated. They remind one of the famous Austrian military communiqué in the First World War: “after a series of victories our army is advancing to previously prepared positions.”
The government has never answered the practical, legal and constitutional worries over its proposals for Parliamentary scrutiny of individual detentions. In effect, Parliament will be asked to act as judge and jury in a preliminary trial of the detainee. (Such proceedings could be subject to the Human Rights Act: how will the suspect exercise his rights and bring his or her case to Parliament?) MPs and peers will not see any evidence against him or her, for fear of disclosing security information and prejudicing a real trial. They will not see the detainee or hear legal arguments by counsel. Unlike a proper judge and jury, they will be whipped. A backbench government MP who wants to vote against a detention will have to be spectacularly brave – defying not only the whips but the inevitable tabloid headlines: “MP votes to free terror suspect.” Parliamentary scrutiny of individual cases will be meaningless.
Judicial scrutiny could be equally meaningless. Will the detainee get the chance to put his or her case to the judge? Above all, will he or she be aware of the source of the evidence which is used to justify his or her detention and have an opportunity to demolish it? That evidence might be as flimsy as a denunciation by an informant – or by another detainee. Or it might emanate from a foreign security service, perhaps from a country which uses coercion or torture (which now includes the
In all of these cases the state will be saying: “there is no worthwhile evidence against this detainee which could ever be furnished in court. But if you let us bang him up for 42 days we might get him to incriminate himself.” Neither Parliament nor the judiciary should be invited to endorse such a proposition. If they ever do, they will be permanently compromised and contaminated.
Gordon Brown may think that his stand on 42-day detention will show him to the country as a strong leader who is tough on terrorism. If so, he is living in a dream world. The country sees a leader manoeuvring desperately to ensure his own survival, rewriting supposedly essential national security legislation day by day in order to induce his own party to vote for it.
I hope that this legislation will be defeated.
Yours sincerely,
Richard Heller