The end of habeas corpus in Great Britain

The British Parliament adopted a new antiterrorist law, the Prevention of Terrorism Act, on March 11, 2005. By doing so, Parliament made it possible for the government to carry out the long-standing project of expanding the emergency provisions to which foreigners are subjected within the context of the war on terrorism to cover the whole population, including citizens. This change is important because it calls into question the notion of habeas corpus. The law attacks the formal separation of powers by giving to the secretary of state for home affairs judicial prerogatives. Further, it reduces the rights of the defense practically to nothing. It also establishes the primacy of suspicion over fact, since measures restricting liberties, potentially leading to house arrest, could be imposed on individuals not for what they have done, but according to what the home secretary thinks they could have done or could do. Thus, this law deliberately turns its back on the rule of law and establishes a new form of political regime.

The Prevention of Terrorism Act is a modification of Part Four of the Antiterrorism, Crime and Security Act 2001, specific provisions of which concerning detention of foreigners accused of terrorism expired on March 14, 2005.

The 2001 Antiterrorism, Crime and Security Act

The attacks of September 11, 2001, allowed the British government to force the urgent adoption of a new antiterrorist law, the Antiterrorism, Crime and Security Act, which was enacted on December 14, 2001. In comparison with the 2000 Terrorism Act, which is still in force, the 2001 legislation authorizes the indefinite detention, without an indictment, of a foreigner suspected of terrorist activities, just as in the United States. Article 21 allows indefinite incarceration based on a certificate issued by the secretary of state for home affairs. "The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably believes that (a) the person present in the United Kingdom is a risk to national security, and (b) suspects that the person is a terrorist." (1) No objective fact is necessary to justify the decision. The time limit for "conviction" is entirely subjective. The power of detention is effective until November 10, 2006.

The certificate issued by the home secretary permits the detention of the accused person within the terms of the Immigration Act of 1971, i.e., for the purpose of either expulsion or return to the country of origin. The possibility of detention for an indefinite period is necessary when expulsion is prevented by an international agreement or another reason. In this case, the person has a choice between remaining in indefinite detention in the United Kingdom or returning to his or her country of origin and being subjected there to a whole set of proceedings that are exceptional under the terms of international law. Most often, the countries of origin of the incarcerated persons are well known for their systematic violations of human rights. It is in these terms, moreover, that the debate was presented to Parliament. (2) The foreigner suspected of terrorism by the English government thus enters into a global system of non-law in which every option is closed to him or her.

A Suspension of the Law

By permitting potentially unlimited detention, this act effectively suspends the law for all persons not having British citizenship or legal residence or not benefiting from the right of protection as refugees. Thus, the suspension of habeas corpus is less extensive than in the United States, where all foreigners are affected.

In order to pass this law, the British government instituted an exception to the European Convention on Human Rights. This exception is based on the notion of a state of emergency and is thus an exception to Article 5, Paragraph 1 of this convention, which guarantees the liberty of persons. According to Article 15 of the convention, exceptional measures must be limited strictly to the minimum necessary as required by the situation. As judged by the Special Immigration Appeals Commission (SIAC), this is not true of unlimited detention. The SIAC was created in order to assure some control over detentions. The law does not allow appeals to be made before this commission. That has not prevented the latter from ordering the release of nine out of the eleven detained under this law, the other two having chosen expulsion. The government reacted to the judgment by announcing its intention to resort to other procedures that would allow it to pursue incarceration. It has thus clearly announced that it does not intend to respect the judgment of a special commission that it established. The government appealed and the higher court fundamentally found in its favor on the question of discrimination between foreign nationals and British citizens. (3)

Suspension of the Law Questioned by the Law Lords

On December 22, 2004, the secretary-general of the Council of Europe demanded the immediate abrogation of the 2001 Terrorism Act: "Antiterrorist legislation in the United Kingdom must be changed immediately. We will not win the war on terrorism if we undermine the foundation of our democratic societies." (4) This position follows a decision reached by the Appeals Court of the House of Lords, the highest judicial body in Great Britain, on December 16, 2004, that considers the unlimited detention, without indictment and trial, of foreigners suspected of terrorist activities as illegal and contrary to the European Convention on Human Rights. (5)