Charles Clarke, the Home Secretary, told Parliament last week that he would introduce a system of control orders to replace indefinite detention without trial, a power that was ruled unlawful by the House of Lords last month. Eleven men are being held in high security prisons at Belmarsh and Woodhill and at Broadmoor secure hospital and were expected to be released on bail shortly.
One of the detainees was granted bail yesterday because indefinite detention had worsened his psychiatric problems.
But Ben Emmerson QC, counsel for two of the detainees, made it clear that if the men signed up to the house arrest proposals they would "be swapping one form of indefinite detention for another''.
He told the Special Immigration Appeals Commission (Siac) - the court that reviews the legality of detentions under part 4 of the 2001 emergency legislation - that the Home Secretary was placing the men on the "horns of an agonisingly difficult dilemma''. If they agreed to the strict terms of house arrest now being sought by the Home Secretary they might be surrendering to years of detention in their own homes.
Some of the men, said Mr Emmerson, had families with whom they had longed to be reunited. Yet they were being asked to agree to a "complete deprivation of their liberty'' that would leave them cut off from the outside world.
It emerged yesterday that the Government had formally agreed to drop its opposition to bail for the detainees but it would only agree to the men's release under terms of strict house arrest. This form of bail, said Mr Emmerson, was a "dry run'' for Mr Clarke's control orders as outlined last week in the Commons.
The barrister said such a harsh restriction amounted to a breach of article 5 of the European Convention on Human Rights in the same way the men were indefinitely detained at Belmarsh and Woodhill prisons. "Whether you have them in Ford Open Prison or a council house in Bermondsey; if they are under full detention then there is a breach of article 5."
Mr Emmerson described house arrest without charge or trial as an "affront to democracy'' and said: "It was quite wrong to ask them to sign up to these bail conditions.''
If the detainees refuse to comply with the new bail conditions Mr Clarke will face immense political pressure to find a less restrictive form of detention. He has already been advised that lawyers for the men are expected to go back to court to argue that house arrest without trial is an unlawful form of detention.
One of the detainees, A, was in court yesterday to hear his lawyers argue his case. Wearing a green jumper and white shirt, he sat handcuffed between three prison officers. Mr Emmerson described A as a family man, separated from his five children for three years. The barrister said it waswrong for the court to ask him to choose between a reunion with his family or staying in prison.
Mr Justice Ouseley, the judge presiding over the Siac hearing, asked Mr Emmerson whether his client would refuse bail if such conditions amounted to house arrest. Mr Emmerson said it was a matter for each of the detainees and one that they would have to carefully consider.
He said the House of Lords, in their judgment in December, had made it clear that indefinite detention without trial was disproportionate to the security threat to the nation and that Lord Scott, in his judgment, had described such detention as "the stuff of nightmares''.Reuse content