THE complex and lucrative world of tax law has always been a mystery to me. I am told that within it lies a subtle but vital distinction between “evasion” and “avoidance” of the regulations. The former involves breach — a sometimes dishonest, and always unlawful, attempt to flout obligations. The latter is apparently more morally ambivalent — an attempt to rearrange one’s affairs so as to minimise liabilities within the narrow letter, if not the full spirit, of the law.

What may work for tax will certainly not suffice for human rights. Recent developments on the anti-terrorism front are the most graphic case in point. In the aftermath of September 11 centuries-old traditions of due process and in particular the presumption of innocence were set aside by unsuccessful legal “avoidance” techniques on both sides of the Atlantic.

The American authorities thought that they could side-step (though not derogate from) the US Constitution by detaining “enemy combatants” offshore, in the cages of a constructed legal black hole at Guantanamo Bay. Closer to home, the former Home Secretary’s advisers came up with the wheeze of avoiding the presumption of innocence and fair trial rights by re-labelling life imprisonment for alleged “links” with international terrorism as “immigration detention”.

It will be to the eternal credit of the House of Lords Appellate Committee that on December 16 last year this scam was discredited in the landmark ruling of A and Others v Secretary of State for the Home Department. The Human Rights Act Order derogating from Article 5 of the Human Rights Convention was quashed on the grounds that it was both disproportionate and discriminatory. Thus Part 4 of the Anti-terrorism, Crime and Security Act 2001 was declared incompatible with the right to liberty as enshrined in Article 5, with a common law tradition reaching back to Magna Carta.

More than six weeks after the damning ruling and after three years of incarceration, none of those detained under the offending legislation have been released or charged with a criminal offence. Of course, the carefully crafted constitutional compromise that is the Human Rights Act preserves parliamentary sovereignty in the face of a declaration of incompatibility. The House of Lords had no power to order the release of detainees from Belmarsh and Woodhill prisons or from Broadmoor hospital (where detainees are shipped one by one as their detention takes its inevitable toll). However, many of us assumed that governments would always respond wholeheartedly to the sheer moral weight of such a ruling.

The new Home Secretary’s response in Parliament showed some real contrasts with the style and tone of his predecessor. Charles Clarke has a statesman-like air about him and he certainly shows more respect for the institutions of judiciary and Parliament. That is all extremely important in a Home Secretary. But have his advisers produced an anti-terrorism package that will bring substantial improvements of substance to go with the improved style? I fear not.

One discredited derogation may soon be traded for another. Unless civil society and Parliament speak up, Liberty will once more be forced into a long game of litigation “cat and mouse” against the full might of government.

The 2001 internment powers are not the only legislative technique for avoiding or trimming due process rights. It now seems that the Special Immigration Appeals Commission (SIAC) and the Antisocial Behaviour Order may have been brought together to produce the new and chilling mutant “control order”.

It seems that the Home Secretary will be able to order restrictions on a suspect’s liberty up to and including house arrest. The threshold for his power will be “reasonable suspicion” based upon secret intelligence. Some kind of SIAC-style appeal will be provided against suspicion and restrictions. However, as before, the suspect will not be able to see or question the secret intelligence case against him. There will be no time limit. A lifetime’s internment in Belmarsh may be replaced by a lifetime’s internment under house arrest. Inevitably, children and other close relatives of suspects will face significant restrictions as a consequence.

Law officers should be more than compliance officers but I can only imagine the advice that the Home Secretary may have received: home is nicer than a real prison and the orders will vary according to specific suspicions. Proportionality — tick (Can such massive licence to the Executive ever be proportionate in a democracy?). The power will bite on Britons and foreigners alike. Non-discrimination — tick (Over- broad and arbitrary power will always lead to discrimination in practice).

At the very minimum, Articles 5, 6 and 8 (liberty, fair trial, private and family life rights) of the convention are likely to be breached by these new orders. No wonder a new derogation is contemplated. The Government may be comforted that eight of nine law lords gave it the benefit of the doubt as to whether there is a “public emergency threatening the life of the nation”. If the “war on terror” is to go on forever, and if such constitutional devastation is to be one of the consequences, the law lords and others may reconsider.

The author is director of Liberty (National Council for Civil Liberties)

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