Bringing it all back home

A Kiwi helps salvage Britain’s system of justice

by Gordon Campbell

Carter Lane begins in the shadow of St Paul’s Cathedral and runs along Ludgate Hill, parallel to the Thames nearby below. Narrow to an almost Dickensian degree in places, it is home these days to a moneyed sequence of lawyers’ chambers and sports pubs, The Rising Sun at number 61 for instance, currently serves as a big-screen sports barn for the footy crowd. Yet it sits on the ruins of the Harts Head Tavern, where Guy Fawkes and his colleagues used to eat and drink, while plotting to blow up Parliament.

My destination is across the alley at 59 Carter Lane, in the shape of Eric Metcalfe, a New Zealand law graduate from the class of ‘92, Canterbury University. Currently, Metcalfe is legal advocate for Justice, Britain’s leading human rights organization. If he nurses any plans of his own to blow up Parliament, his weapon of choice would probably be the Human Rights Act 1998. This potent little piece of legislation has effectively taken European rulings on human rights, and made them part and parcel of British law. In the years since 9/11, the HRA has had an explosive effect on Tony Blair and Gordon Brown’s attempts to use the war on terrorism as a rationale for suspending some very basic and ancient civil liberties in Britain.

For example : no, the British law lords have said, the HRA doesn’t allow you to use evidence gained by torture. It doesn’t let you use immigration law to detain people indefinitely. You can’t detain and convict people by using secret evidence, not without giving people the gist of the accusations against them. You can’t detain people for long periods without charge. And you can’t impose a system of indefinite virtual house arrest (aka control orders) without providing a reasonable summary of why this is thought necessary.

This year, the HRA has been taken by the British courts to have set an ’irreducible minimum’ on the level of secret evidence that must be disclosed to a defendant in terrorism cases, to ensure that a fair hearing can take place. In brief, most of the draconian anti-terrorism measures rushed into place by the Blair government are now being unravelled, piece by piece, by the courts. Not surprisingly, the Conservative Party has signaled its intention to scrap, or at least significantly weaken the HRA, if it wins the next election.

Metcalfe has been on the inside rail during these events. The young law student schooled in the British common law in Christchurch came back to London, to the source of those great traditions – and to his considerable surprise, has found that his job now involves trying to save them from destruction, at the hands of politicians.

Metcalfe proves an affable, and articulate host. He picked human rights as a specialization, he says, not because of any road of Damascus conversion to the cause. Even as a student, It had always struck him as being more interesting than any other field of law. At the time, near the end of the Cold War, questions were beginning to surface as to how the new world order should be organized.

It was quite a strange period, he recalls. United Nations conventions that been sidelined during the long struggle between the West and the Soviet Union, came back suddenly to the fore. At least until the West’s brief moment of triumphalism collapsed, and the war in the Balkans broke out. “Almost immediately things began to spiral [downwards] because you had the rise in ethnic nationalism which followed.” Even worse was to come. ” There was certainly no golden era, back in the 1990s, but post 9/11, the landscape changed again, dramatically…It really has been a lesson in how fear can damage democratic values.”

People became terrified, he continues, because no one knew what was going to happen next, including the government and its bureaucrats. “The idea of an attack on Britain became foremost in people’s minds.’ And when that attack did finally eventuate in July 2005, it came from a direction that no-one had anticipated ?

“Yes. Its interesting that people still managed to be shocked, despite all the preparation, and despite all the anticipation.. I think people were shocked by the idea that it came from people who had been born and raised in Britain. Certainly, the people who were targeted by the British government after 9/11 had been foreign nationals, even though there was an awareness that there were British-born nationals involved in going over to Afghanistan and into the training camps [in Pakistan]. Regardless, the people that the Blair government had been detaining without trial between 2001 and 2005 were foreign nationals, and mainly those from North African countries.’

Recent experience suggests, in other words, that governments are no better than the public or the media at detecting where genuine security threats are likely to come from. That being so, shouldn’t we be wary of the powers that we grant to governments ? Oh, absolutely, Metcalfe replies. “ If there is a lesson to be learned from these kind of public emergencies, the first lesson is that you have to forget the lessons of the past. There’s always an over-reaction. Always a certain amount of legislative panic.”

In sorting out the subsequent political and legal chaos, Metcalfe and the Justice organization have often ended up at loggerheads with the government. Personally, why would he want to spend his time and skills in defending people who – if they are not the actual bomb-makers and bomb planters – are not far removed from them, ideologically speaking?

‘Some may be, and some may not be.’ Metcalfe replies. ‘Some may hold extremist views and some may be people who were simply in the wrong place at the wrong time. I think if we look at the people who have been subject to control orders and subject to indefinite detention, there are probably some who are definitely extremists, and some who are genuinely innocents. The truth of the matter is…its very difficult to know. ‘

All the more reason, he believes, to ensure that fair procedures are in place. ‘Because the nature of it is that you can’t know a lot of the time whether the person you’re speaking up on behalf of, is actually involved in say, a terrorist plot or whether they’re just an innocent person. This why lawyers have to believe in a process. Its one thing to believe in your client, and sometimes you can have the luxury of having a case where you know your client is innocent. But that’s all the more reason to defend the values themselves.”

For Metcalfe, his motivation springs from a belief in the values, more than in any particular case. ‘Certainly, it’s a plus when you have the conviction of having enough information about the individual to believe [in their innocence] but in my organisation we’re not involved in representing individuals. We’re involved in the more general policy aspects. So for us, its all about the principles.’

Some pretty basic democratic values are at stake, it seems to him. “The idea that a person can be subject to indefinite detention – of virtual house arrest – on the basis of secret evidence, is astonishing., This was the kind of debate they had in England in the 17th century. Now, here we are in 2009, having it again. It seems bizarre to me, having been a student at Canterbury. I never thought that of all the debates that you could possibly have in the future…well, you wouldn’t have thought that secret evidence would ever have been on the cards. It is bizarre.

Essentially, it strikes him that terrorists are really engaged in is criminal activity. ‘They should be dealt with by the criminal law. But what we in the United Kingdom have erected, is a parallel quasi- criminal justice system. In order to deal with people whom, for a variety of reasons – primarily due to the nature of intelligence gathering operations – the government has been unwilling to prosecute, for fear of disclosing the methods by which the intelligence service work in this country. And that is profoundly damaging to the way in which a democracy works. I’m not suggesting the United Kingdom has fallen into a police state. But when you begin to allow the use of secret evidence, its difficult not to be disturbed by some of the parallels.’

As we talk – it is still only early afternoon – the somewhat gloomy chambers that Justice inhabit have sunk further into shadow. Old buildings in London may have tons of atmosphere, but airiness and light are at a premium. In the eight years that have passed since 9/11, what evidence does Metcalfe have that the British government has been listening to anything that Justice – or its counterpart, Liberty – have had to say ?

Metcalfe laughs. There have been successes, but few and far between. Gordon Brown’s failure to extend the period that people could be detained without being charged with one rare victory. Public outcry stopped that move in its tracks but, he says ruefully, there has been far less public concern about the plight of people detained under control orders. “Its been interesting why pre-charge detention has been able to galvanise the public mood when things like virtual house arrest haven’t.’. Gordon Brown, he believes, did himself a lot of damage by making his bid to increase detention powers so nakedly political. ‘It was very obvious that this was being used as a party political plus for Labour, to try and outflank the Conservative Party [on the right flank ] over a public security issue.’

For all the hopeful signs that the whole edifice of post 9/11 anti-terrorism is slowly crumbling, a lot of it remains intact. This year saw two landmark events, Metcalfe explains. In February, the European Court of Human Rights ruled that there were limits on the use of secret evidence. The Strasbourg judges identified a basic principle that everyone is entitled to sufficient information about the case against them, to a level where they have a reasonable ability to challenge it. In June, the British House of Lords was obliged to follow that ruling, as it applied to the secret evidence being relied on for control orders

So far, Metcalfe says, the British security agencies have tended to drop the control orders caase by case, rather than follow the court’s direction and release a fair summary of the secret evidence “One person who was subject to a control order for three years without being told any of the information against him has now been released. Simply because the government does not want to expose the secret evidence that it has been using, to justify it. Those two judgements have begin to reverse the past ten years of the practice of using secret evidence.’ In coming months, more and more of the control orders are likely to be quashed.

’The government is particularly concerned,’ Metcalfe continues, ‘because we are leading into a general election and the control order system is more or less unraveling. That said, the system will drag on for as long as the government finds it politically useful to maintain it. Meanwhile, everyone is enaged in a shadowy end game, where amounts of secret evidence can be used without adequate disclosure , so long as a case can be made [usually in secret] that such details are not decisive. “There can still be aspects with-held, so long as [the defendants] are still able to meet the essential case. The distinction they draw is between knowing the allegation, and knowing the evidence.’

These distinctions are relevant to New Zealand. Our new Immigration Act has given sweeping powers to a number of agencies to use secret evidence – -in immigration and terrorism cases – in ways that are quite out of step with trends in Europe and Britain. Our disclosure rules for instance, are framed in terms of releasing to the defendant a summary of the allegations, and not a summary of the evidence for them. For obvious reasons, giving the defendant a mere précis of the accusations is far less helpful than providing the gist of why the accusations exist.

Yes, Metcalfe says, and the distinction has been creating a fresh set of head-aches for judges and lawyers in Britain. Last month, this key distinction was supposed to be tested and sorted in the very first case due to go before the new British Supreme Court “ That [control order] case [was] going to have to wrestle with the distinction between what is the allegation, and what is the evidence, and how do you make the distinction? Unfortunately, just a week before the case was due to begin, the government folded its cards, and withdrew the control order on the man concerned. The episode has dealt a serious blow to the entire control orders regime, as the Guardian has recently reported:

There are now 14 remaining control orders in force and the lawyers involved are expected to challenge the home secretary to disclose the “secret” evidence involved in each of them on a case-by-case basis over the next few months.

The Brown government lost again a couple of weeks ago, when the High Court gave a further ruling against it on the use of secret evidence, and the dominant issue of the right to a fair hearing. The media report is here

The judgement – not available online – contains a very interesting example of the need for full disclosure. If say, the allegation is that someone took part in a training camp in Afghanistan and the defendant denies having taken part in any training camp, anywhere – is that sufficient rebuttal, and does the government really need to go further, and disclose in what year or month say, that this alleged training took place ? No, said the government lawyer. Yes, said Justice Collins, because that degree of specificity could allow for the possibility of a far more solid alibi to be presented. One can only hope and dream that immigration officers wielding the powers granted to them under the Immigration SAct, will be so forthcoming.

Political change in Britain could alter the entire human rights landscape. A new Conservative government is likely to move to jettison the Human Rights Act and create a replacement for the control orders regime, which is currently dying on its feet. As Metcalfe speculates, the Tories are unlikely to simply pull out of the European Convention altogether. Instead, they are more likely to concoct a British “ Bill of Rights” that will curtail how the courts can, in future, interpret the Human Rights Act and impede the government from doing what it wants to do.

For now, organizations like Justice are forgoing ahead with a full slate of current battles. The final status of diplomatic assurances for instance, remains unclear. These assurances are promises reached between governments that deportees will not be subjected to torture if they are returned. Such promises – which many think are not worth the paper they are written on – enable governments to bypass the UN Torture Convention’s absolute ban on sending people back to places where they are at risk of torture.

In February, the British law lords upheld the use of diplomatic assurances in the Abu Qatada case, and these devices are included in our own new Immigration Act. Metcalfe however, expects a test case to eventually go before the European Court of Human Rights, and that the practice of diplomatic assurances will be struck down. “ I eventually expect Abu Qatada will win his case, and we will see a reversal of that policy.”

Not every problem area in the field of human rights owes its origins to 9/11. Metcalfe says. In the same way that extraordinary rendition began before 2001, so did the deportation of asylum seekers, and its related problems. ‘It was a system that has been in operation beforehand and it will continue long after the current security situation has begin to fade. The more serious problem in the medium term is the effect of these constraints on what governments can do here.

Meaning : what 9/11 and its aftermath have done is foster an impatience within government about the obstacles posed by the law, and by democratic scrutiny. “We’ve seen it before, particularly with Tony Blair. Tony Blair became frustrated with the deportation policy, and that’s when we grew diplomatic assurances. When he got frustrated with the courts’ judgement on indefinite detention, that’s when we got landed with control orders.”

Overall, he says, many of the domestic attacks on human rights in the United Kingdom have been shaped by decisions about national security. “As I say, a lot of the problem is that we are not using the criminal justice system to its full extent. [During August] we saw the convictions of 13 people for a transatlantic airline plot. The bizarre situation we face in the UK is that we were using intercept evidence in that case that came from California, and not the intercept evidence that came from the UK – because here, its illegal to use that material in court.” Unlike their US and Canadian counterparts, the British security services don’t want such wiretap and intercept material to become permissible, lest it reveal their intercept and counter-encryption methods.

For much of this decade, these kind of operational wishes of the security services have been allowed to trump the requirements of natural justice. Secret evidence is a good example. “We call it secret evidence,’ Metcalfe says, “ but it isn’t, not really. The intelligence services are not involved in gathering evidence in the way that a police officer is. A detective takes statements, collects evidence from a crime scene investigation, and is engaged in building a case that would be admissible in court…But what we’ve seen over the last 10 years in particular is intelligence product being laundered through the courts – even though it is not really evidence. It is traffic. Hearsay, hypotheses, and raw suspicion.” Material that is completely nightmarish if used in court situations – or in the context of immigration decisions affecting a person or family’s entire course of life.

The struggle continues on other fronts as well. In recent months, Last month, Metcalfe has been engaged with a test case involving people who have not been charged with an offence, but who could still have their assets frozen without right of appeal – purely on the basis of being placed on a UN blacklist. The case will test the power of the British government to implement a UN ruling that bypasses Parliament. Merely through the simple implementation of the UN directive, Metcalfe says incredulously, a situation would be created whereby the people affected wouldn’t be able to buy so much as a loaf of bread without that need first being checked by HM Treasury. All rights to earn a living could be suspended, quite arbitrarily..

‘I regard this as an almost perfect illustration of how counter-terrorism measures have been implemented without basic procedural safeguards or fundamental rights… can simply pass an order – not even enact a law – that criminalizes lending your car to someone who is under one of these orders.” Reason being, it would be an offence to offer any form of economic assistance, even to someone not convicted, or charged with a criminal offence. The desire to crack down on those who may be funding terrorism may be laudable. Yet the method, in Metcalfe’s view, currently lacks any substantial safeguards to protect people or charities whom the UN or the EU may have wrongly put, or maintained, on their blacklist.

Such battles are, most of the time, highly unpopular with the public. Does he ever feel he is really only one step away from being a Mafia lawyer ? Metcalfe laughs. “No, but it is interesting to me, having been a New Zealand law student, to remember that we got most of our law traditions and much of our international law framework from these ancient common law principles : that everyone is entitled to a fair trial, and everyone is entitled to know the case against them.”

“ You would have thought the one place where the right to a fair trial – and all the other basic fundamental values – would be understood, would be here in the United Kingdom. But really, they’re not. I find it bizarre that New Zealand has a Bill of Rights Act, but here in the UK we have a government that is talking about scrapping the Human Rights Act. So what went wrong ? You’d think this was a mature democracy. On some of the bad days, you can sometimes wonder.” ENDS