Detention without trial, Mark 4
Owen has beaten me to it with his post about the government’s decision to drop its long-incubated and utterly indefensible Mental Health Bill, and instead to insert its most objectionable features into the existing Act. As Owen says,
The Government has announced new mental health detention plans under which people who are deemed mentally ill with a condition that cannot be treated, and who have committed no crime, can be detained in
Lubyankaa mental hospital indefinitely.
The Government has concluded that it will not be able to get its controversial draft Mental Health Bill through Parliament to make these changes, because of criticism of the measures from mental health experts and civil rights groups.
So instead they are going to introduce similar measures by amending the existing Mental Health Act 1983 and Mental Capacity Act 2005. The main difference is that patients who are locked up without their consent will be given a right to appeal. As things stand, Parliament will need to approve the amendments.
This government seems to have a mysterious and disreputable passion for locking people up indefinitely without trial, indeed without even the minor inconvenience of any obligation to charge them with any offence. The mental health (Orwell-speak for sickness) proposals are the fourth manifestation of this passion.
Detention without trial, Mark 1: The government became increasingly frustrated by its inability to deport a handful of foreigners deemed by the home secretary to pose a threat to national security but who, if deported to their native lands, would risk being tortured, or worse, which would breach their rights under the European Human Rights Convention. So our ministers took powers to lock such people up without trial until such time as their native lands stopped torturing their citizens and the undesirable aliens could safely be thrown out. Because detaining them without trial also constituted a breach of their human rights under the Convention, the government shamelessly declared a purely fictitious state of emergency so that they could suspend the application to the UK of the relevant provision of the Convention under a ‘derogation’ from it. The Court of Appeal, increasingly erratic these days, upheld this unbelievable set of measures as lawful and consistent with the Convention. The Law Lords, under the always reliable Lord Bingham, struck them down as discriminatory and disproportionate, declared them inconsistent with Britain’s Convention obligations, and quashed the derogation. Note that it wasn’t parliament that threw out this disgraceful assault on basic civil liberties by a panicky and illiberal government, but a group of elderly judges.
Detention without trial, Mark 2: Frustrated by the Law Lords, the government decided to turn their judgement to its own advantage by extending the liability to be detained without trial to British citizens, not just foreigners, thus circumventing the Law Lords’ finding of unlawful discrimination. To get round the Convention prohibition of detention without trial, ministers devised a regime of restrictions and prohibitions under Control Orders which, in their most extreme form, fall just marginally short of house arrest (which would fall into the category of detention). Under this regime the suspect is unable to earn a living and support his family, to leave his home (likely to be a small flat shared with a sizeable family) for more than an hour a day, to meet any person without the government’s permission, to use a computer or a mobile telephone, to move house, or to publish his views in any form. All this without any obligation on the government to charge the suspect with any offence, still less to give him a trial. Control Orders may be indefinitely renewed. Any breach of the Order is punishable by imprisonment. No wonder at least one suspect subjected to this savage routine has demanded that he be returned to prison, and another has decided to risk life and limb by agreeing to be returned to his country of origin despite the real likelihood that he will there be tortured, imprisoned in conditions even more horrific than those at Belmarsh, or possibly executed. The Control Order regime remains in force, indeed has just been renewed for another year by a supine parliament. Its legitimacy has not yet been challenged in the House of Lords or the European Court of Human Rights.
Detention without trial, Mark 3: The government responded with alacrity to the demand by the police and security services for power to detain a terrorist ‘suspect’ without trial or even charge for up to three months while the police conducted an investigation of his affairs with a view to a possible eventual prosecution. The government accordingly included a provision for such a power (replacing the former limit of 14 days) in the latest of its interminable procession of anti-terrorist laws. Parliament at last rebelled. Ministers indignantly protested that the security forces needed much longer than a fortnight to complete complex investigations likely to entail decrypting masses of computer data and awaiting replies to their enquiries from slow-moving foreign security agencies. This slyly evaded the issue. No-one disputed the need for adequate time for the police to complete complex investigations: the question was why they needed to put behind bars throughout that investigation a suspect against whom they had insufficient evidence to support a prosecution. After protracted and largely irrelevant debate, parliament agreed to a ‘compromise’: a suspect can now be detained without charge or trial for up to 28 days. The home secretary has already indicated his intention to try again for 90 days in the next of his anti-terrorist Bills.
Detention without trial, Mark 4: Ministers are still determined to take powers to detain indefinitely people who have committed no offence and are unconnected with terrorism, but who suffer from an ill-defined (perhaps indefinable) "severe personality disorder" for which no treatment is possible other than what amounts to sedation. They have so far failed to reveal where and by whom such unfortunate people are to be detained: prison would seem obviously out of the question, not only because the prisons are already grossly overcrowded, but principally because these detentions cannot be imposed as punishments: no question of guilt, retribution, remorse or rehabilitation can arise. Nor can they sensibly be detained in hospitals if they cannot be treated, indefinitely blocking beds needed for patients who can and need to be treated — as well as obliging hospitals to set up all the apparatus required for compulsory detention: the locks and keys, the 24-hour guards, the control and searches of visitors. And is the sponsoring minister really going to put his or (more likely) her name to the obligatory declaration that the measure involves no inconsistency with the Human Rights Act and the Human Rights Convention? Well, yes, I suppose she or he will sign up without a hint of hesitation.
Plenty of work piling up for the Law Lords, then.