Anthony Scrivener QC: Don't let the superpowers ride roughshod over democracy

In the war against terror, Britain and the US are jettisoning prisoners' rights

Something has to be done about those detained without trial by the US and UK following the 11 September attack. Those governments, the most vociferous in the cause of democracy, have also proved to be the most willing to jettison democratic principles. They get away with it by spreading a propaganda of fear and limiting public access to the evidence, such as it is.

The Americans had a brain-wave. They incarcerated their detainees in Cuba, safely away from the tentacles of the Bill of Rights and the American constitution – a great leap forward in the name of democracy which Stalin would have admired. Prisoners can be detained in cages, without prisoner-of-war status and without any rights at all. Then they declared war on some nebulous political body, so the rule of law could be set aside and the way cleared for trial by military tribunal. At least there are some useful models to follow from the Chinese. So it was congratulations all round.

However, even President George Bush seems to have got cold feet over US citizens being sentenced to imprisonment or perhaps worse by a bunch of generals. Thus it is that John Walker Lind, a detained US citizen, is to be tried by the courts, not by this tribunal. This leaves the citizens of other countries, including the British, still caged in Cuba, available for the generals.

Apparently President Bush is confident that he can handle the public relations involved in trying foreigners by decent American generals. The British can be expected to row in behind as usual. To describe the British government as a poodle is to denigrate a good house dog. Besides the British have the same problem. Membership of the European Human Rights Convention is becoming rather a nuisance on a number of fronts, but being an older nation with a mature civil service we have more subtle ways of dealing with such problems.

Article 5 of the Convention protects the right to liberty and provides that no one shall be detained except "after conviction by a competent court". However, article 15 permits the state to derogate "in time of war or other public emergency threatening the life of the nation" but the derogation must be only to the "extent strictly required by the exigencies of the situation". The right to derogate is examined critically.

The very first such case to reach the court at Strasbourg concerned a derogation by Ireland from article 5. The applicant was detained in 1957 without trial for five months because of his active membership of the IRA. This was a clear breach of article 5. However, before detaining him, the Irish government had notified the secretary general of the Council of Europe of its intention to use special powers to combat the IRA. The evidence was visible and strong: the existence of a secret army using violence and operating in Northern Ireland, and jeopardising the relationship with Ireland and firm evidence of an escalation of terrorist activities, culminating in a homicidal ambush in Northern Ireland of particular significance. The court was satisfied that the right to derogate was established. There was nothing nebulous about any of this.

So the British are seeking to establish a derogation. There will be no tribunal of generals here, but instead a special Immigration Appeals Commission manned by three judges. At first sight this does not look so promising as a panel of generals who have no idea of the law, but it is the rules that exhibit the subtlety for which the British executive is so famous.

Things are made easier by not allowing defendants or their advisers to hear or even know all the evidence against them, and by abolishing that tiresome title that the prosecution must prove the case beyond all reasonable doubt. So as not to leave anything to chance, the media have only limited access, and the ordinary rules of evidence do not apply. The Home Secretary must be wondering how much of this he could get into the criminal justice system to dramatically increase the conviction rates.

The organisation Liberty is challenging this derogation this week, when it will ask the Special Immigration Appeal Commission to consider the case. It says that the anti-terrorism laws used to detain 11 suspects after 11 September without trial are draconian, and argues that the men still held should be freed. The detainees are being held in a separate block at Belmarsh prison in London. Several are being kept in solitary confinement. They are locked in their cells for 22 hours a day, and given brief periods of exercise in a small yard roofed by a metal grid.

When Jack Straw, the Foreign Secretary, has finished giving away Gibraltar perhaps he will have time to remind the Americans of article 7 of the Universal Declaration of Human Rights: "All are equal before the law and are entitled without any discrimination to equal protection of the law." He may suggest that the detained foreigners are dealt with in the same way as Mr Lind.

Mr Lind is to be tried by the American courts presumably because the US government believes it has sufficient evidence in his case for a jury to convict, but what about the other 290 or so detainees where there is not even enough evidence to risk going before the generals? This is the dilemma for the Bush administration.

Watched by the world media, it would be very difficult just to give the detainees a carrier bag filled with their meagre belongings and a firm handshake at the gates, muttering that it has all been a terrible mistake and wishing them the best for the future. It is unlikely that a president who scrambled around to hold on to those votes in Florida to get elected would run the political risks of doing this.

However, there is another option. It is rumoured that the detainees are about to be moved to a new permanent detention facility on a rocky bluff overlooking the Caribbean Sea. There, in a land of limbo, free from all human rights, the detainees can spend the rest of their lives enjoying the view without the bother of having to deal with any suggested evidence against them. This would be so much better than the life enjoyed by the man in the mask, who languished on similar terms in the Bastille prison in Paris in the 18th century.

This may be the "new legal regime" that the US Deputy Assistant Attorney General, John Yoo, promised recently: a state of permanent captivity, without formal charges, access to lawyers or the opportunity for independent judicial review. All that is needed is for a member of the government to sign a piece of paper condemning the detainee as a security risk: a permanent showcase of dangerous terrorists collected and preserved by President George Bush Jnr. With such an example of US democracy in action, many authoritarian regimes around the world should feel able to warmly embrace the democratic system.