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Blair's battle royal with judges over rights

Hasan Suroor

The British Government's war of words with the judiciary is part of the larger battle over its counter-terror agenda widely seen as an attempt to acquire more coercive powers in the name of fighting terror.

THE SIMMERING tension between the British Government and the judiciary over Prime Minister Tony Blair's counter-terror measures is threatening to explode into a full-blown confrontation as judges come under increasing pressure to play down their concerns about human rights in the supposedly larger interest of national security.

The looming row, billed as the most bitter clash between Ministers and judges, has been triggered by the courts' resistance to the idea that they should simply rubber-stamp any law the Government puts forward to counter terror even it goes against Britain's own deeply-held democratic traditions and its avowed commitment to individual rights.

British courts have struck down a number of measures, such as the indefinite detention of foreign suspects without trial, taking the view that these were not consistent with the provisions of the European Convention on Human Rights to which Britain is a party. Stung by these reverses, the Government has launched an all-out offensive virtually warning the judges that they would be compromising national security if they throw out laws it regards as crucial in the fight against terrorism.

Mr. Blair himself set the ball rolling when, announcing his government's post-7/7 anti-terror plans, he darkly hinted at the "battles" ahead and warned that the Government would not hesitate to resort to legislation to overcome judicial hurdles.

"Should legal obstacles arise, we will legislate further including, if necessary, amending the Human Rights Act in respect of the interpretation of the ECHR," he said.

Ministers have thrown their full weight behind the argument that in these "abnormal" times, national security ought to be given more weight than the fuzzy rights of those the Government regards as potential terrorists. A version of the same argument was used to defend the killing of Charles de Menezes, the innocent Brazilian youth, who was shot dead by police officers in a south London tube station recently claiming that they thought he posed a threat to commuters.

Last week, Charles Clarke, the Home Secretary, took the battle to the European Union calling for a change in approach to anti-terror laws. He called for a review of the human rights convention and, rather patronisingly, advised the judges that they should keep in mind the changed "circumstances in the modern world" in deciding cases involving human rights.

Mr. Clarke went even further than the Prime Minister, though presumably with his authority, saying that Britain might be forced to opt out of the Convention if it continued to come in the way of the Government's plans to defeat terrorism.

"If people start to believe that decisions at the European Court, in operating the European Convention, are not broadly in accordance with a consensus about how rights should be defended, then there will be some very difficult questions about the convention itself in Britain ... There are already some forces which are asking whether Britain should still be part of it,"' he said addressing European Union judges.

The immediate provocation for the Government offensive is its move to deport foreigners, suspected of inciting terrorism, to their countries of origin. Sounds like a sensible approach. After all, what is wrong in ridding the country of palpably undesirable aliens?

But the issue has got embroiled in a problem whose origins lie in the Government's own one-time liberal asylum policy when virtually anyone was able to get asylum in Britain by simply claiming that they were being persecuted back home.

Few tears would be shed for people the Government wants to deport because, more than anything else, they are an embarrassment to their own communities. But the question being asked is: how were they allowed to settle in Britain in the first place?

Successive British Governments have given refuge to fugitives from all over the world despite protests from many countries, including India. So long as they were not seen as a threat to British interests, Britain was happy to embrace them irrespective of the offences they may have committed in their own countries.

Now that the shoe has started to pinch, Britain wants to get rid of it but the trouble is that the grounds on which these people were given asylum remain unchanged.

Most of the people, lined up for deportation, insist that it is still not safe for them to return, and their lives could be at risk if they are sent back to their countries.

Whatever be the truth in these claims, the European rights convention is on their side. And because the convention is incorporated into the British law, courts in the U.K. try and reflect its spirit when deciding cases.

They have tended to tread even more cautiously after the European Court of Human Rights overturned a British Government order to deport a Sikh separatist to India in the 1990s. The court upheld an appeal by Karamjit Singh Chahal, an associate of the militant Sikh leader Jarnail Singh Bhindranwale, challenging the government's order on the ground that it breached Article 3 of the Convention, according to which "no one shall be subjected to torture or to inhuman or degrading treatment." He contended that if sent back to India, he faced torture and persecution for his role in the Khalistan movement.

Important precedent

That ruling has become an important precedent for British courts in dealing with deportations. It is particularly relevant in the current situation as most of those who face expulsion fall into the Chahal category. They are wanted by authorities in their own countries but cannot be deported because of the perceived threat to their human rights if they are deported.

The British Government is desperately trying to reach an understanding with the countries concerned that would allow it to deport these people in return for an assurance that they would be treated humanely. Some countries are reported to have agreed to this, but given their record on human rights it is not certain that the judges would accept such assurances at face value.

Mr. Blair acknowledged this when he said recently: "There's a major question as to whether, on the basis of understandings with countries to which we want to return these people, we will be able to within the courts."

There is frustration in Government circles that courts are being too cautious at a time when, as Mr. Blair put, the "rules of the game" have changed and what is needed is a more robust approach to issues involving national security.

In an unusual intervention, the head of M15, Dame Eliza Manningham-Buller, has weighed in on the side of the government calling for a debate on the conventional ideas about human rights. Almost paraphrasing Mr. Blair, she said: "The world has changed and there needs to be a debate on whether some erosion of what we all value may be necessary to improve the chances of our citizens not being blown apart as they go about their daily lives."

Commentators said it was "significant" that the head of MI5, who normally stays away from political controversies, should have chosen to come out so openly in support of the government on an issue that has deeply divided the nation. The Times said her decision to make public remarks, first made at a private gathering, was a "break with traditions."

The Government's war of words with the judiciary is part of the larger battle over its counter-terror agenda widely seen — not just by human rights groups but many of its own MPs — as an attempt to acquire increasingly more coercive powers in the name of fighting terror. One senior Labour MP described the Home Secretary's new powers as the "greatest attack on the liberty of British people for 300 years."

Shami Chakrabarti of the civil rights group, Liberty, says the "fundamental values of democracy cannot be changed because we are provoked by terrorists."

The Government is counting on the support of a frightened public, which, especially after the recent attacks in London, is far too concerned about its own safety to be bothered about rights. Opinion polls show that, not surprisingly, the priority for the vast majority of ordinary Britons is their own and their families' safety; and if the cost is sacrificing some rights they are willing to forego them.

But how "real" is this trade-off likely to be given that even countries with the most draconian laws have not been able to prevent terror attacks? To many, it is more like the start of a slippery slope down which more rights will get the chop in a "war" that seems to be going nowhere.

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