Human rights legislation leaves ministers bogged down

Published on 14/08/2005 01:36

CHARLIE Falconer cut a flustered figure last week.

Falconer symbolised the conflict which has now emerged on the home front of Britain's war on terror. It is one of democracy's oldest turf wars - the government vs the judiciary. Who wins now looks set to dictate how Britain will react to the horrific attacks in London last month and - more importantly - how it will be able to cope with the threat of a repeat.

It was little wonder that Falconer was having his work cut out explaining matters - for the government's counter-terrorism plans were far wider in scope than many had anticipated following its initially sluggish response to the attacks. The rules on deporting and excluding extremists from the country would be tightened; human rights laws would, if necessary, be amended; those condoning terrorism would be prosecuted - the list went on. The measures were aimed directly at the small group of Muslim extremists in Britain who are having the spotlight shined upon them after 7/7, when the consequences of the spread of radical Islam in Britain were horrifically shown up.

Most attention focused on the two extremist clerics who have aroused most anger over the last month; Syrian-born Omar Bakri Mohammed, the self-styled "sheikh", ran the radical al-Muhajiroun group from Tottenham, north London, until it was disbanded last year and Jordanian Abu Qatada who has adopted the moniker of Osama Bin Laden's London ambassador.

The pair, however, are just the tip of the iceberg. Many others have attracted suspicion. They include Abu Uzair, now under investigation over claims he encouraged terrorism, an ally of Bakri and a leading light in the recently formed extremist Saviour Sect, which wants Britain to become an Islamic state. There is Yasser Al-Siri, an Egyptian dissident now working as a bookseller in London, who lives in Britain despite being sentenced to death in his absence in Egypt over a bomb blast which killed a 12-year-old girl. And there is Mohammed Al-Masari, a Saudi academic who fled to Britain more than 10 years ago and who runs a website depicting beheadings and suicide bombings in Iraq.

The fate of these men is now the front line of Britain's home front war on terror, following 7/7. Last week, with Bakri having been expelled, and Qatada - plus a further nine un-named extremists - detained awaiting deportation, ministers claimed that the first phase of the crackdown had got under way. But while Blair's proposals may well have caused satisfaction within Whitehall this week, there remain deep doubts over whether they will stand the test of time.

Guy Goodwin-Gill, a barrister and senior research fellow at All Souls College at Oxford University, summed up the mood within the legal camp. "I think Mr Blair has lost the plot," he said. "For a lawyer, he says some of the daftest things. It is simply not serious." Lawyers like Goodwin-Gill now contend there is no way on earth that the crackdown will survive the courts.

The problem for ministers is the array of legislation now enshrined within British law which offers protection to the very foreign extremists they are trying to expel. It is now 50 years since Britain signed up to the Refugee Convention, which, as the European Convention on Human Rights, was then incorporated into British law in 1998. Signatories must ensure "freedom from torture, inhuman and degrading treatment"; "the right to liberty"; and "freedom from discrimination." For critics, the rights enshrined are far too vague, inviting abuse by lawyers seeking to protect their clients. One former Scottish Law Lord, Lord McCluskey, said: "It contains very elastic words like 'fair' and 'excessive'. These are entirely subjective phrases."

In the case of deportations, it means that countries such as Britain have experienced massive difficulty in trying to send back foreigners to countries which have a record of any form of torture or abuse. Hence the desperate attempts by diplomats to dodge the law by framing water-tight assurances with countries such as Jordan - which have a record of abusing prisoners - that any returnees will be treated well. But even with such assurances, the precedent for ministers is not good. In 1999, the government attempted to expel four Egyptian nationals, including a man named Hany Youssef, a lawyer who had fled to Britain in 1994 but was accused of terrorist activities. Government memos released last year revealed the remarkable impotence of even the Prime Minister to force him out. As with the current cases, Britain sought assurances from Egypt that he would not face torture. But the guarantees were deemed worthless. Even the Home Office admitted as such. "There are a number of factors which suggest that assurances would do little or nothing to diminish the article 3 risk," it declared in one memo, referring to the section of ECHR which guarantees people freedom from torture. Subsequent attempts by Blair to force the issue came to naught. It now begs the question: if such attempts failed six years ago, will they succeed now? Lawyers are queuing up to answer no. Goodwin-Gill says: "Diplomatic assurances are always going to cause problems. The Prime Minister seems to think he can simply call up his friend in Jordan or Egypt and ask that it won't happen. But torture doesn't take place at the top level. It is impossible to ensure it won't happen at a much lower level."

Nor do ministers seem to be exactly brimming with optimism. Home Office minister Hazel Blears declared last week that the government only had a "reasonable" chance of going ahead with such deportations. Their pessimism is perhaps even more justified because the people who will eventually decide such matters - the Law Lords - themselves appear to be firmly on the side of human rights laws.

Earlier this year, the House of Lords ruled that it was illegal to detain foreign nationals at Belmarsh Prison near London, on the grounds it was "discriminatory" (another vague ECHR term). The liberal retiring Lord Chief Justice Lord Woolf is now to be replaced with the similarly minded Lord Phillips, who has already said he will not be afraid to displease the government.