Human rights in the balance

The Human Rights Act arrived with a fanfare in 2000. But just two years (and September 11) later, Tony Blair is 'reconsidering our obligations', writes Robert Verkaik

Remember all the proud ministers who made such grand speeches on the day that their flagship legislation on human rights finally came into force across the UK, on 2 October 2000?

Today, those same politicians seem almost embarrassed by their achievement. The terrorist attacks on the US, just 11 months after Labour was hosting parties to celebrate "bringing rights home" to Britain, have changed everything.

Last week, the Government was more concerned about how to keep asylum-seekers out of this country, rather than honouring the fine principles enshrined in the Human Rights Act 1998. This culminated in the Prime Minister raising the real possibility of Britain taking the unthinkable step of derogating from its commitment to the European Convention on Human Rights (ECHR) – a treaty that British lawyers drafted in 1951.

Speaking on the BBC's Breakfast with Frost, Tony Blair made it clear that the perceived "rising tide" of asylum-seekers, combined with the renewed terrorist threat was now unacceptable. He said that he was prepared to reconsider "our obligations under the Convention on Human Rights."

Later last week, the Conservatives said that they were prepared to go even further. The shadow Home Secretary, Oliver Letwin, has been demanding since the September 11 attack that Britain derogate from the European Convention on Human Rights, to underline the right of Britain to deport failed asylum-seekers if they represented a threat to national security.

He argues that Article 3 of the convention, alongside the 1951 Geneva Convention on Refugees, has made it far more difficult to deport anyone claiming well-founded fear of persecution in their own country. Letwin, right-wing think-tanks such as Civitas, and the Tory press have urged that Britain follow the example of France to enter a reservation allowing deportation in times of national emergency.

Such talk fails to appreciate the fact that, since we introduced the Human Rights Act, we are as much bound by the rule of European law as we are to our own legislation. On the Friday before Mr Blair joined David Frost for breakfast, the Lord Chief Justice, Lord Woolf, was in Strasbourg making just such a point at the European Court of Human Rights. In a momentous speech, given by Britain's most senior judge to the most senior judiciary in Europe, Lord Woolf reminded the legislators that it is the courts who are the guardians of human rights.

At the same time, Lord Woolf also showed politicians that there is still sufficient scope for governments to act within the rule of law and still enforce tough immigration policies. Before September 11, Lord Woolf reminded them, the UK already had legislation that allowed it to deport those who had no right to remain in the UK if their presence in the UK was considered, in the interests of national security, not to be conducive to the public good. He also referred to the "doctrine of deference", in which the courts respect the right of the executive to make a difficult decision.

Lord Woolf says that this requires the UK courts to recognise that there are situations in which the national legislature and executive are better placed to make the difficult choices between competing considerations than the national courts.

The court should respect an area of judgment "within which the judiciary defer on democratic grounds to the considered opinion of the elected body or person whose actual decision is said to be incompatible with the Convention".

As to these difficult decisions, he said that none are more challenging than those involving national security. "It is the first duty of the government to protect its citizens. Acts of terrorism directed at the civil population are totally inconsistent with the values for which the European Convention stands."

But he added, pointedly: "However, it is when issues of national security are dictating the actions of the executive and the legislature that the protection of individual rights needs particular attention."

Lord Woolf does not concede that there is a simple way to brush aside the duties and obligations imposed under Article 3 of the ECHR. The "doctrine of deference", says the Lord Chief Justice, does not apply when such a fundamental right is at stake.

The idea of derogating from a fundamental part of a European treaty for political gain has drawn criticism from many quarters. The most clearly thought out analysis of such a proposal has been presented by the human-rights group, Justice. It says that the only possibility open to the UK lawfully to avoid its obligation under Article 3 would be to withdraw from the convention altogether. Eric Metcalfe, director of human-rights policy, suggests that the consequence of a UK withdrawal from the convention is unclear. But he warns: "At the very least, however, it is arguable that – since the purpose of the Act is to make the convention part of UK law – withdrawal could void the Human Rights Act 1998 altogether."

He says that it is also disingenuous to suggest that France had somehow opted out of Article 3 at the time of its ratification on 3 May 1974. "France entered reservations against Articles 5, 6 and 15 (1) of the convention, but not against Article 3."

Justice rightly points out that the obligation on the UK not to return asylum-seekers to a country where they face a real risk of torture does not arise from the convention alone. The same obligation arises from Article 3 of the 1984 UN Convention Against Torture, which was ratified by the UK in 1988, as well as the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

Three days after Tony Blair's interview with David Frost, his wife Cherie chose the Human Rights Act as the subject of her first speech since she temporarily stepped down from public engagements after the Peter Foster affair. A leading QC, she said that it was time to look to the development of a more broadly based human-rights culture within the UK. "The true import of the Human Rights Act is that it is intended to introduce a new moral underpinning to law and to state action. It is true that the law now provides a foundation, a set of fundamental guarantees, which must prompt advances in legal and social protection for vulnerable members of our society such as children."

For "children", she could have easily substituted "asylum-seekers". On the issue of human rights, it would seem that Tony Blair is as much estranged from his wife as he is from his Lord Chief Justice.