Some of the most eye-catching legal initiatives of the Government's first two terms - including the creation of ASBOs and its tightening of asylum laws - were heavily criticised today in a report by a top European human rights official on the UK's criminal justice system.
Alvaro Gil-Robles, the Council of Europe's Commissioner for Human Rights, also questioned whether the UK's latest anti-terror legislation - which he said was "intended to substitute the ordinary criminal justice system with a parallel system run by the executive" - did not breach its international obligations.
The criticisms, and a long list of recommendations, came in a report published by Senor Gil-Robles today and submitted to the Council. The Spanish law professor visited the United Kingdom last November and met a wide range of criminal justice and prison service officials and ministers including David Blunkett, Home Secretary at the time.
The European rights watchdog closely examines the Goverment's anti-terror laws and welcomes the Law Lords' decision last year to strike down the emergency legislation passed after the September 11, 2001, al -Qaeda attacks on New York and Washington.
The European rights watchdog says he agrees that anti-terror laws must be "robust" to allow governments to protect their populations but says that "as such measures are adopted they should respect the fundamental rights and principles that are at the very core of our democracies".
He questions whether the control orders now available under the Prevention of Terrorism Act 2005 - pushed on to the statute books at the end of the last parliamentary term after a stand-off with the the Lords - are consistent with the European Convention on Human Rights (ECHR), which his office polices. During his visit, the Spaniard visited the high-security Belmarsh Prison and interviewed foreign terror suspects who are now subject to the stringent anti-terror orders.
Senor Gil-Robles writes that the control orders - and even those not requiring a specific derogation from the ECHR - "raise not only general points of constitutional principle concerning the rule of law and the separation of powers, but also a number of specific concerns regarding their compatibility with the rights guaranteed by the ECHR".
He says such orders may involve a deprivation of liberty under the terms of the Convention and might also breach the charter's requirements for a fair trial in so far as they amount to a criminal sanction even if no criminal act has been proven against the subject of an order.
The report points out that Article 6 of the Convention calls for the right to a "fair and public hearing" and entitlement to the presumption of innocence. Senor Gil-Robles questions whether the "weak control offered by judicial review" and the use of secret evidence in "one-sided" private hearings meets this obligation.
He adds: "Quite apart from the obvious flouting of the presumption of innocence, the review proceedings can only be considered to be fair, independent and impartial with some difficulty.
"Substituting 'obligation' for 'penalty' and 'controlled person' for 'suspect' only thinly disguises the fact that control orders are intended to substitute the ordinary criminal justice system with a parallel system run by the executive.
"Under normal circumstances such a step would not even be contemplated. But there are not, the argument runs, normal times. Both the risk, and the likely damage, of terrorist attacks are great; sufficiently great to justify exceptional measures."
Amongst his recommendations, Signor Gil-Robles proposes that the Government should provide for proper judicial authorisation of all control orders, ensure that evidence obtained by torture is in no case admissible, and ensure that the expulsion of foreign terror suspects "on the basis of diplomatic assurances" is subject to proper judicial scrutiny.
Although the watchdog goes out of his way to praise the British judiciary and the professionalism of staff he met in prisons and detention centres around the UK, including in Scotland and Northern Ireland, he portrays a situation where the executive has been willing to ride roughshod over legal convention for reasons of political pragmatism.
The Commissioner agrees that the UK had no choice but to streamline its procedures on dealing with asylum-seekers after a sudden influx several years ago, but questions whether the new procedures are consistent with the fundamental rights of asylum-seekers. He recommends regular judicial review of the administrative detention of foreigners, clearer statistics on the number of juvenile asylum-seekers in detention, and says that asylum-seekers appealing against deportation should not be deported until their appeals have been heard.
The report includes a lengthy section on the criminal justice system in Northern Ireland, where he Signor Gil-Robles says the implementation of reforms need to be accelerated and paramilitary structures must be dismantled.
But his most withering criticism is reserved for Anti-Social Behaviour Orders, or ASBOs, introduced in 1999 to deflect rising public anger about hooliganism. Although Senor Gil-Robles concedes that they may have their uses, he describes them as a largely political tool that encourages quasi-vigilante behaviour with little judicial basis.
The report says that what is striking about ASBOs is how they are used not to protect indviduals but entire communities, meaning that a wide range of behaviour falls within their scope - Senor Gil-Robles cites the examples of an 87-year-old served an ASBO for being sarcastic or a 17-year-old deaf girl for spitting.
He also questions the need for ASBOs to be given such wide publicity at local level, especially when the subjects of the orders are juveniles, but says Home Office guidelines encourage this.
"Certainly, the state has an obligation to protect society from the rogue behaviour of hoodlums and vandals," Senor Gil-Robles writes. "I do, however, question the the appropriateness of empowering local residents to take such measures into their own hands.
"This feature would, however, appear to be the main selling point of ASBOs in the eyes of the executive. One cannot but wonder, indeed whether their purpose is not to reassure the public that something is being done - and, better still, by local residents themselves - than the actual prevention of anti-social behaviour itself.... It is difficult to avoid the impression that the ASBO is touted as a miracle cure for urban nuisance."
