Labour's Arsenal of Repressive Legislation

Workers' Daily Internet Edition: Article Index :

Labour's Arsenal of Repressive Legislation

The Place of “Anti-Asylum” Legislation in the “War against Terror”

Tony Blair on Asylum

The Human Cost of the “War on Asylum Seekers”

For Your Reference:
Q & A: Britain's Highest Court to Determine the Legality of Indefinite Detention

Since coming to power in 1997, Tony Blair's Labour government has been marked by its aggressive and warmongering policies abroad and its increasingly repressive legislation at home. While its two terms in government have seen military aggression against Yugoslavia, Sierra Leone, Afghanistan and Iraq, in Britain it has brought forth a stream of repressive legislation aimed at giving the state more power to act in an arbitrary manner and to violate rights. Under the banner of combating "terrorism, abuse of the immigration and asylum systems, crime and anti-social behaviour" Labour's legislative record since 1997 has ushered in ever increasing power for the state to restrict and undermine people's rights.

            Some of these Acts have gained notoriety for their broad attack on democratic rights. For example, the Criminal Justice (Terrorism and Conspiracy) Act 1998, the Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001 together have broadly extended the definition of “terrorism” to include those who voice support for armed resistance against repressive regimes, those who damage property in protest at things they oppose (e.g. anti-roads protestors digging tunnels, anti-GM crops protestors destroying GM crops) or even those who organise mass faxing as a form of protest against governments.

            They have also given the Home Secretary the power to outlaw an organisation without having to prove a case against it in court. He simply needs to believe that it may be involved in terrorism. They have given the police powers to search or arrest people without warrant, merely on suspicion of being a terrorist. They have also created various offences where the burden of proof may be on the defendant to prove his or her innocence and have even made it an offence to wear clothing that makes the authorities suspicious that someone may be a member or supporter of a proscribed organisation. They have given the Home Secretary the power to detain foreign nationals indefinitely without charge.

            This latter power, which is enshrined in the 2001 Act, means that the government has had to opt out of Article 5 of the European Convention of Human Rights, which prohibits arbitrary detention. In order to do this under Article 15 of the Convention, the Home Secretary has had to declare an open-ended state of emergency, which is in fact the present situation in Britain. The Civil Contingencies Bill, which is at present in the House of Lords, takes this trend even further with its plans to introduce secret trials presided over by "security vetted" judges, in which the defendants will be represented by state-appointed, "security-vetted" lawyers who along with their clients will not be able to see all the evidence against them.

            The Immigration and Asylum Act 1999, the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants) Act 2004 represent another plank of Labour's repressive legislation. Together, they attack the basic rights of asylum seekers and refugees and assault the very idea of the rule of law, under the cloak of "dealing with the problem of asylum seekers". Some of the measures enshrined in these laws empower the state to make asylum seekers destitute by removing their rights to housing, food and money tokens and then to split up their families and take their children into care on the basis that the asylum seekers are destitute.

            Equally significant in this legislation is the removal of any legal oversight or challenge to the decisions of the Home Secretary and the President of the Asylum and Immigration Tribunal regarding the deportation of asylum seekers. In this way the Labour government is overthrowing the rule of law and replacing it with arbitrary state authority, reminiscent of the rule of the medieval monarchs.

            This “anti-terrorism” and “immigration and asylum” legislation has been accompanied by criminal justice legislation, which aims to criminalise the whole society.

            The Criminal Justice Act 2003 and the Anti-Social Behaviour Act 2003 belong to this category. These Acts extend the powers of the police to stop and search, while criminalising a range of traditional activities such as fly posting.

            Labour's aggressive and warmongering foreign policy and its repressive domestic legislation have the same source. They show the true nature of this government as a government against the people and in the service of the rich and powerful. The working class and people's movement needs to build the workers' opposition as an alternative to the disastrous, anti-people course of the financial oligarchy and its Labour government.

Tony Blair’s pledges to step up the deportation of asylum-seekers, the passing of the Asylum and Immigration (Treatment of Claimants) Act which received the Royal Assent in July, and the associated barrage of racist propaganda, all have their place in the extremely reactionary context of the “war against terror”.

            They target and demonise not all immigrants, but focus on “illegal immigrants”, “bogus asylum seekers” and “Islamist fundamentalists”. This barrage goes hand in hand with the promotion of “British civilisation” as superior, of the insistence by the government that immigrants must adopt the values of “British citizens”, of “Western” values as universal. This singling out of “asylum seekers” domestically is part and parcel of attempting to justify aggression abroad, as well as putting in place the arbitrary rule of the state and its apparatus at home.

            As such it is directed at the rights of all citizens at home, at refusing to recognise the rights of all as human beings, as well as attempting to make the British people into reserves of the imperialists in their attack on the sovereignty of peoples.

            The British working class and people must continue to defend the rights of all and step up their opposition to the disinformation campaign on asylum seekers and immigrants.

By Arun Kundnani – RAM Bulletin (Refugees, Asylum-seekers and the Media Project), No 45, Oct 2004

In an article in The Times (16 Sept 04), Prime Minister Tony Blair set out his plans for a massive increase in deportations of asylum-seekers.

            The headline: “Three steps we will take for a fairer asylum system”. Fairer to whom? Fairness, it appears, refers here, not to asylum-seekers themselves, for whom the system may be making life-and-death decisions, but to the “general public” whose confidence in the system has been eroded by constant tabloid anti-asylum stories.

            The opening sentence: “Out on the doorstep, asylum remains a major concern.” The government claims it has to crack down on asylum-seekers because of public opinion. But it has been getting tough on asylum-seekers for seven years in response to “public concern” – with no sign of that “concern” diminishing. Isn’t the government responsible for sustaining that “concern” with seven years of “get tough” rhetoric?

            The next paragraph: “Forty years ago the number of claims was small and the overwhelming majority were genuine. Now, the dramatic increase of asylum-seekers to all EU countries includes large numbers of economic migrants who take advantage of easier travel.” It is not “easier travel” that causes more people to flee but the worsening humanitarian situation in many parts of the world. At the same time, the refusal rate has soared in response to “public concern” about the numbers coming. Having branded these people as “economic migrants”, Blair ignores all other considerations and goes on to discuss the ways in which asylum-seekers can be tackled essentially as a criminal problem rather than a matter of human rights.

            “As a result of new laws and other action, claims have fallen 70% since their peak in 2002 – a reduction twice that achieved in the rest of Europe. Claims are now at the level of 1997 and we must get them down further.” How was this reduction achieved? In part, the number of asylum-seekers at any time reflects the human rights situations in the countries they come. Thus the recent fall in claims in the UK reflects a general reduction across the Western world. But the “new laws and other action” – such as withdrawing practically all support from asylum-seekers who do not submit their claim as soon as they arrive – have also reduced claims. For many asylum-seekers, it is simply not worth their while to make a claim now, whatever the individual merits of their case.

            And behind the never-ending drive to reduce the number of claims lies the prejudice that almost all claims are unfounded. The result – thousands of people in genuine need thrown into destitution and untold hardship.

            “Building on our success in reducing applications, we now want a step change in the number of failed applicants who leave this country. By the end of the next year, we want the monthly rate of removals to exceed the number of unfounded applications so that we start making increasing inroads into the backlog.” What will this mean in practice? Each month around 3,000 asylum-seekers are rejected and 1,100 deported. If the number of claims continues at its present rate, the target announced last month implies there will be over 3,000 deportations a month by the end of 2005 – an almost threefold increase. Of course, it is possible that the number of asylum claims will increase again – in which case the target would imply an even higher increase in deportations.

            Blair then describes the measures needed to meet this target: “we will be taking firm action to clamp down on those who deliberately conceal their identity... So from next week it will be an offence, punishable by up to two years in prison, to arrive in the UK without documents or to refuse to co-operate with redocumentation by your embassy during the removal process.” But using false documents is almost the only way asylum-seekers have of entering Britain – with visa restrictions on many countries from which they come there is no chance of obtaining a visa. That is why the Geneva Convention explicitly rejects penalising asylum-seekers for using false documents. Forcing asylum-seekers to co-operate with the embassy of the government they have fled is highly dangerous. It notifies foreign governments of exactly who has claimed asylum here and could lead to retaliation against relatives left behind.

            Another measure: “over the next seven months we will be bringing on stream almost 1,000 extra immigration detention spaces to take the total to 2,750, triple the 1997 figure. The first 326 of those places were opened yesterday at the new removals centre at Colnbrook.” The new detention centre at Colnbrook is modelled on a category B prison with each cell designed to hold two detainees sharing a toilet without a proper door. To detain people who have been convicted of no offence in prison-like conditions only leads to suicide, protest and rebellion, as we have seen with previous expansions of the detention-estates at Campsfield, Yarl’s Wood and Harmondsworth.

            “An asylum system, if it is to retain the full confidence of the public, must be seen as fair and balanced...” By now it is obvious that the words “fair and balanced” are not being used in fair and balanced way. The system is so biased against asylum-seekers that people in genuine danger have been deported.

*Arun Kundnani is Editor of the Institute of Race Relations news

The Institute of Race Relations (IRR) on October 4 published a roll call of the 180 asylum seekers and undocumented migrants who have died either in Britain or attempting to reach this country in the past fifteen years.

These figures are an indictment of the system which treats the vulnerable and asylum seekers as less than human, denies them their basic human rights, including the right to asylum, and tramples on the norms of civilised human behaviour nationally and internationally. They, together with the anti-asylum legislation, the detention of foreign nationals indefinitely without trial, and other outrages, underline how this aspect of the “war against terror”, as all other aspects, represents a return to medieval practices that gives no protection to the human person.

The IRR report points out that no section of our society is more vulnerable than asylum seekers and undocumented migrants. Forced by circumstances beyond their control to seek a life outside their home countries, prevented by our laws from entering legally and from working, denied a fair hearing by the asylum system, excluded from health and safety protection at work, kept from social care and welfare, vilified by the media and therefore dehumanised in the popular imagination, their hopes of another life are finally extinguished.

            90 died taking dangerous and highly risky methods to enter the country. With legal barriers in place to prevent them securing visas or work permits to enter legally and sanctions applying to above-board carriers, the desperate stow away on planes and lorries or attempt to cross the channel in makeshift boats or cling to trains. The number recorded here is probably only a fraction of those who have died in this way. Our figures rely on news reports and by virtue of the subject matter these deaths are not news.

            42 died as an indirect consequence of the iniquities of the immigration/asylum system – either by taking their own lives when claims were not allowed, by meeting accidental deaths as they sought to evade deportation, during the deportation itself or by being prevented from travelling to Britain for specialist care. The IRR gives the following figures:

§          34 died at their own hand, preferring this to being returned to the country they fled, when asylum claims are turned down. And compounding the process is the fact that some of those in detention and known to be traumatised and particularly vulnerable appear not to have been provided with the medical (especially psychological) support they needed.

§          4 died accidentally as, in terror at what they presumed to be the arrival of deportation officials, they took evasive action.

§          1 person died during the deportation process itself, when she was asphyxiated as officers used 13 feet of tape to subdue and quieten her.

§          2 people died after being prevented from travelling to the UK for medical treatment.

§          5 died in prison, police or psychiatric custody.

§          28 died in the course of carrying out work, which carried particular dangers and no protective rights. Once again, the numbers reported here are probably a gross underestimation, as work-related deaths of people who are 'illegal' will often go unreported.

§          15 died as victims of racist attacks.

The deaths listed do not include those with leave to remain or those asylum seekers who were arrested on suspicion of committing criminal offences who have met their death in the custody of the police, prison and psychiatric hospitals and in racial violence attacks.

Compiled by Human Rights Watch

1. What are the judges in the House of Lords being asked to decide?
A special nine-judge panel of the House of Lords Judicial Committee will convene on October 4 to consider the lawfulness of government powers that allow foreign terrorism suspects to be indefinitely detained without trial or charge. The powers are contained in Part 4 of the Anti-Terrorism Crime and Security Act 2001 (ATCSA), which was introduced in the wake of the September 11 attacks.
The case is an appeal from an October 2002 Court of Appeal decision that indefinite detention is compatible with British and international law. The Court of Appeal judgment reversed a July 2002 ruling by the Special Immigration Appeals Commission (a tribunal that hears deportation cases involving national security, SIAC) that the powers were discriminatory and in breach of Britain’s obligations under human rights law.

            The House of Lords is also being asked to consider whether evidence from third countries obtained under torture can be used in indefinite detention cases. The point arises from a separate August 2004 majority ruling by the Court of Appeal that such evidence can be used provided the UK neither “procured nor connived at” the torture. The House of Lords will decide on October 4 whether to hear the torture issue together with the derogation challenge, or postpone consideration of it until a later date.

2. Why is “indefinite detention” so controversial?
Indefinite detention without trial or charge is never permissible under human rights law. That includes the domestic Human Rights Act, which incorporates the European Convention Human Rights (ECHR) into British law.

            In order to pass the legislation, the government therefore had to suspend (or “derogate from” in legal language) part of its obligations under the ECHR and a corresponding international treaty (the International Covenant on Civil and Political Rights, ICCPR), and declare “a public emergency threatening the life of the nation.” The UK is the only country to derogate from the ECHR and ICCPR in the wake of the September 11 attacks. Forty-five countries are bound by the ECHR, and 151 are bound by the ICCPR.

3. How many people are being held?
Seventeen persons have been certified as “suspected international terrorists” under the ATCSA. Eleven are currently subject to indefinite detention without trial. They are being held in maximum security prisons at Belmarsh and Woodhill, and in one case the Broadmoor high security psychiatric hospital. A twelfth man, known only as G, is on bail but effectively under house arrest. Two suspects have been released. One, known only as D, was recently released after the government said “new information” indicated he no longer posed a threat. Another, known only as M, was released earlier this year after the SIAC determined that there was insufficient evidence to warrant his detention. Another suspect is being detained under other unspecified powers, and two more have left the United Kingdom. Seven of those in indefinite detention have been in custody for more than two years.

4. Why is the issue of evidence obtained under torture so significant?
The absolute nature of the prohibition against torture is a cornerstone of international law. There are no excuses or exceptions even in time of war or other public emergency. In addition to the language banning torture in the ECHR and ICCPR, there is a specific international treaty—the Convention Against Torture—that enumerates the measures necessary to ensure that torture is never employed. That treaty specifically prohibits the use of evidence obtained under torture in “any proceedings” before a court. Britain is bound by the Convention Against Torture in international law, and will report to a United Nations committee in November 2004 on its recent record of compliance with it. The absolute ban on torture is also a fundamental norm of customary international law that equally requires the compliance of the UK in all circumstances.

            The government’s willingness to use evidence obtained by torture at the hands of others erodes the absolute prohibition against torture. The argument relied on by the majority in the Court of Appeal is that the UK, which has ratified the treaty, is not bound to implement its protections because the Convention Against Torture has not been incorporated into domestic law. This undermines the very purpose of the Convention Against Torture—to ensure the comprehensive ban on torture is respected to the greatest degree possible by the greatest number of states. It is particularly worrying in the context of the revelations about torture and abuse of detainees during interrogations in U.S. custody at Abu Ghraib in Iraq, Bagram in Afghanistan and Guantanamo Bay, as this position would in essence sanction “exporting” the dirty work of torture to states that are willing to violate their international legal obligations.

5. How does the Government decide who to detain?
Before being detained indefinitely, a person must first be “certified” by the Home Secretary as a “suspected international terrorist.” The law allows the Home Secretary to certify a person if he has a “reasonable belief ” that the person is a threat to national security and a “suspicion” that the person is an international terrorist or has links with an international terrorist group. This requires far less evidence than would be needed for a conviction in a criminal prosecution or a civil case, and can be based on evidence that would not be admissible in a criminal court. Certification is based largely on classified information. That information is not available to the detainees, or their lawyers of choice, or independent observers, like Human Rights Watch.

6. Can the detainees challenge their detention in court?
The detainees have the right to challenge their detention before the SIAC, but with far fewer procedural guarantees than are accorded to those charged with a crime. The standard of proof is far lower than the criminal standard (“beyond a reasonable doubt”), or the civil standard (“on the balance of probabilities”). SIAC uses a system of dual hearings and legal representation. Each detainee is assigned a security-cleared barrister known as a “special advocate.” Classified information and evidence is heard during “closed” sessions attended by the special advocate. Detainees and their lawyers of choice are excluded from those sessions, and contact between the special advocates and detainees is limited. Non-classified evidence is heard at “open” hearings with the detainee present.

 

7. Does the recent release of the detainee known as D show that the system has the proper safeguards?
The release of D, an Algerian national, illustrates the arbitrariness of the detention regime rather than the effectiveness of its safeguards. D was first detained in December 2001 on the basis of secret evidence. D was never questioned or interrogated during his detention. Even now, he does not know the basis of the government’s case against him. The government’s decision that the evidence no longer warranted his detention came less than 3 months after the SIAC upheld his certification.

            Another Algerian detainee, known as M, was released in March 2004 after the SIAC decided that there was insufficient evidence even to establish a reasonable suspicion or belief that M was involved in international terrorism. The court criticized some parts of the government’s secret evidence as “unreliable” and “inaccurate” and other parts as “clearly misleading. M spent 16 months in Belmarsh prison without cause.

8. Why do the measures only apply to foreign nationals?
The indefinite detention powers are derived from immigration powers, which permit foreign nationals to be detained pending deportation. British nationals cannot be detained under immigration powers.

            The threat to the UK from terrorism is not confined to foreign nationals, however, as recent arrests of British citizens on terrorism charges make clear. Despite being derived from immigration law, indefinite detention is only applied to foreign nationals who cannot be deported from the UK. This means the detention regime effectively discriminates solely on the ground of nationality. This form of discrimination is not permitted under human rights law, a point emphasized by the United Nations Committee on the Elimination of Racial Discrimination. The discriminatory nature of the detention power has also been highlighted by the SIAC, and the Joint Human Rights Committee of the UK Parliament.

9. Why doesn’t the government deport the men?
All of the detained men are subject to deportation orders. However, Britain is prohibited from sending persons to countries where they would be at risk of torture. It accepts that the detained men could not be deported to their countries of origin without a serious risk that torture would occur.

10. The government says the men are free to leave at any time. Why don’t they just leave?
The men cannot travel to their home countries for the same reason that the government cannot safely deport them to their countries of origin, namely that they would be at risk of torture or death. One of the men is a stateless Palestinian refugee. In principle, they could travel to third countries, if they were able to find one willing to accept a person designated by the UK government as a suspected international terrorist, where there was no risk of torture. Given that the alternative is indefinite detention in a high security facility, it improbable that the men would decide to stay if they had the option of leaving safely. Only two of the detainees have left the UK; one holds a French passport and lives in France.

11. Why does Human Rights Watch oppose “indefinite detention”?
The prospect of detention without any term, sentence, or opportunity to reasonably challenge the ongoing detention is inimical to the right to liberty. Indefinite detention requires a long-term derogation or legal departure from Britain’s human rights obligations. Although the derogation powers will lapse in 2006 if not renewed, the government has indicated that the threat on which it justifies derogation is likely to continue for many years, raising the prospect of continuing derogation. Derogation sends a message that some human rights are not important, and that some people deserve fewer human rights than others. In the words of the Joint Human Rights Committee of the UK parliament, long-term derogation has a “corrosive effect on the culture of respect for human rights.” The United Nations Human Rights Committee has also expressed concern about the measures, which it argued “may have far reaching effects on the rights guaranteed in the Convention [the ICCPR].”

            In December 2003, the Newton Committee—a group of senior parliamentarians tasked with reviewing the Anti-Terrorism Crime and Security Act—“strongly recommended” that the indefinite detention powers be “replaced as a matter of urgency,” a view endorsed by the Joint Human Rights Committee.

            Indefinite detention has taken a toll on the mental health of some of those subject to indefinite detention: detainee G was granted bail after the SIAC accepted that his detention had triggered “psychotic episodes.” Others are said to suffer from depression and suicidal thoughts. While those convicted of a crime have the prospect of release at a future date, or at least an understanding of the length of their incarceration, those subject to indefinite detention are in limbo.

            Indefinite detention is also discriminatory. There is growing evidence that indefinite detention is regarded by many Muslims in the U.K. as an injustice targeted against their community. The Muslim Council of Britain and the Church of England have expressed alarm about the issue, and the Home Affairs committee of the UK Parliament recently announced an enquiry to examine the impact of counter-terrorism measures on community relations. Alienating Muslims in the U.K. is not only inherently undesirable but is also likely to undermine their willingness to cooperate with the police and security services.

12. What are the alternatives to indefinite detention?
Human Rights Watch shares the view of the Newton Committee that criminal prosecution subject to the usual fair trial safeguards is preferable to indefinite detention. Where there are obstacles to the effective prosecution of terrorism suspects, the appropriate response is to undertake reform of the criminal law in accordance with human rights and fair trial standards. In that regard, the UK Home Secretary’s recent comments on the government’s willingness to consider relaxing the ban on the use of phone tap and other intercept evidence—a widely advocated change— are a welcome development.

13. What will happen if the House of Lords decides that indefinite detention is allowed under UK and international law?
The detainees can apply to the European Court of Human Rights in Strasbourg. If the Strasbourg court agrees to hear the case, it would then consider whether the measures breach the European Convention on Human Rights.