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July 27, 2007

Michael Burleigh

A slightly odd piece here:

While we agonise about 28 or 56 days custody, it is not uncommon for terrorist suspects in France to be held in preventive detention for four or five years before their case goes to court.

This is said with approval. The reason we agonise over such things is because we are in fact a free nation. We ask that the State, before it takes some 6 or 7% of a person's life, actually have some proof about the reasons for doing so. You know, this trivial trial, evidence, jury nonsense that took us some 800 years to set up.

One of the puzzles of our time is why Britain scrupulously adheres to the Human Rights Act, when our allies and partners systematically flout the European Convention on Human Rights.

That's because we have something called "the rule of law".

This has been another edition of short answers to stupid questions.

July 27, 2007 in Law | Permalink


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Unfortunately, because we do enforce the ECHR, the Rule of Law is weakened.

I suspect it is because our system has an obedient machine long controlled by reasonably sensible people. Now we have cretinous leaders producing or accepting moronic law, the obedient machine still goes about enforcing it.

I suspect in France the machine is used to having cretinous leaders, so they apply the laws in what they consider the National Interest - the French signature dish. Our arrangement is built around Parliament keeping our interests.

With the EU, we are stuffed.

Posted by: Roger Thornhill | Jul 27, 2007 12:49:11 PM

"Unfortunately, because we do enforce the ECHR, the Rule of Law is weakened."

Name one example of this. Any example will do.

Posted by: john b | Jul 27, 2007 12:51:32 PM

Is the ECHR an EU measure? I thought it predated it.

Posted by: Matthew | Jul 27, 2007 1:15:53 PM

John B: The inability to remove an unwanted and dangerous foreign national from our shores.

Posted by: Roger Thornhill | Jul 27, 2007 3:31:40 PM

"Is the ECHR an EU measure? I thought it predated it."

No. Cases are heard by the ECJ which has nothing to do with the EU except the letter E. It's a bete noir for the frothy wing of the Tory party because they are easy confused by things with "E" in the acronym. Bless.

"The inability to remove an unwanted and dangerous foreign national from our shores."

That's the courts following the law on "thou shalt not torture people (directly or indirectly)". You can condemn the judges for upholding the law but I won't in absence of a detailed knowledge of the facts of a case.

The law similarly protects mentally ill people from being locked up without trial and with no prospect of treatment. You can see where you'd be if you let these rules lapse: arbitrarily defining inconvenient people as mad to get them out of the way. We're seeing just these arbitrary powers used to take children from their parents and have them adopted.

The rule of law is very important, and it is particularly important to have rules on the scope of laws to protect minorities from the tyranny of the majority.

Posted by: Kay Tie | Jul 27, 2007 4:25:03 PM

That may be fine, Kay Tie, but the UK is also prevented from holding said people who refuse to return home, possibly to torture, it is agreed, but that no other country wants them (I wonder why?).

Thus, the UK "cannot" hold them indefinitely and "cannot" remove them, so has to have them wander about freely - which is, frankly, barking mad/irrational as the State is being put into a postion where it believes the public are being endangered - and that is one of the prime roles of the State - protecting the citizens.

Posted by: Roger Thornhill | Jul 27, 2007 4:50:42 PM

Mull. The answer, Roger, is Mull. Put them there and keep them there. That'll stop 'em coming in the first place.

Posted by: dearieme | Jul 27, 2007 6:15:23 PM

"the State is being put into a postion where it believes the public are being endangered"

In the specific cases I simply do not believe that the State genuinely believes this. There has been so much "sexing up" of the situation that all truth is obscured (the recent car "bomb" in London is now being referred to as a "fuel/air bomb", for example).

"and that is one of the prime roles of the State - protecting the citizens."

And that is done by enforcing the rule of law. Do I realistically fear a terrorist kidnapping my children? No. Do I realistically fear the State kidnapping my children? Yes. Is the Government going to do something about it? No. Is the ECJ? Quite possibly, yes.

Posted by: Kay Tie | Jul 27, 2007 6:17:47 PM

Kay Tie, you are conflating enforced detention of citizens, mentally ill or not, and unwanted aliens who are free to leave. You do not think the State has yet believed the people are endangered. Saying such an individual presenting a danger has not appeared yet does not alter the fact that the State would be powerless under the current situation if that did occur. You dodge the question.

BTW, your kidnap scenario is not even a strawman. We are not talking about “kidnap” of citizens, nor are we talking of the “kidnap” of non-citizens.

The UK is not holding the person arbitrarily, but stating: "you are free to leave and go to any country, but if you stay here, these are the conditions (e.g. detention)".

To be unable to (eject or contain) but MUST allow them to be free to roam would mean the UK shall become a magnet for all manner of appalling people from appalling places. Once in the UK we cannot remove or contain them. That is an absurd situation.

The removal or detention of alien undesirables is, for me, the least-worst option. It is a terrible thing to detain someone who demands to stay in your country, but it is far worse to allow someone who has no legal right to remain and is considered a threat to roam at will.

Imagine someone entered your home without permission. They talk of destroying your home or taking control of it, but it is just talk. They plead that people outside want to kill them, so could they stay. You have no hard proof of their true intent and they have not actually done anything yet. Of course you don’t want to kick them out to be harmed, but would you allow them to wander freely about your home? Any sane person who wishes to protect their family would keep them where you could watch them and to limit their movements or even lock them in a room. If the police say you are not allowed to keep them locked up in a room, would you let them roam about your home 24/7? I would not – they have a choice: Leave now or stay in the room. Giving them that choice is not assisting in torture or death. It is common sense. It is the least-worst option,

FYI I am against the 58 day proposal, and I am not convinced at the 28 day ruling even. 58 hours, maybe.

p.s. dearieme: Mull is a form of detention.

Posted by: Roger Thornhill | Jul 28, 2007 9:31:58 PM