Proposals to balance a deportee's right not to be tortured against our national security contravene the Human Rights Act, argues Stephen Grosz

This week marks five years of operation of the Human Rights Act. It passed important tests when the Law Lords ruled that indefinite detention of foreign terrorist suspects was unlawful and, equally important, when the government accepted the ruling.


It now faces another test, as the Lord Chancellor argues that the Home Secretary should be able to balance national security against an individual deportee's right not to be tortured. If necessary, he will bring forward an Act saying this is the correct interpretation of the European Convention.


His problem is that the UK has already lost this argument. A majority of the Strasbourg court rejected it in unequivocal terms in the Chahal case (23 ECHR 473 (1997)). Although acknowledging the 'immense difficulties' faced by states in protecting their communities from terrorism, they underlined that the convention prohibits torture in absolute terms, irrespective of the victim's conduct.


An individual must be safeguarded whenever there are substantial grounds for believing that he would face a real risk of torture if removed to another state.


The court added: 'The activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.' The court also rejected the UK's attempt to rely on a diplomatic assurance that the individual would not be ill treated if deported to India.


The Lord Chancellor now wants to argue that the majority in Chahal was wrong and that the minority - which accepted the balance approach - got it right. He is unlikely to persuade our own courts to disregard Chahal. And his problem is that he can't appeal to Strasbourg if he loses here. So he has hit on a wheeze that will get him before the European Court - he will legislate to require judges to confirm deportation orders made in breach of article 3, and presumably the government will ignore any declaration of incompatibility, thereby obliging the individual to take his case to Strasbourg, enabling the UK to re-argue Chahal.


The government's chances are remote. The court has consistently reaffirmed Chahal, the Grand Chamber having done so in February this year, and a section of the court as recently as July. The Chahal principle is echoed in the UN Torture Convention, which forbids extradition to a state where there are substantial grounds for believing that a person would risk torture. And last month, the Council of Europe's anti-torture committee said that talk of 'striking the right balance' is misguided when such human rights are at stake. Resolute action against terrorism 'cannot be allowed to degenerate into exposing people to torture or inhuman or degrading treatment. Democratic societies must remain true to the values that distinguish them from others'.


Of course, Parliament can amend the legislation to say that article 3 should mean only what Parliament says it should. But Parliament cannot change what the convention actually means, and what the Lord Chancellor now proposes could not more clearly be in breach of it. Our courts would have to apply the Human Rights Act as amended by Parliament, although this means providing protection inferior to that given by the convention. Individuals would have to get their remedy from Strasbourg.


This proposal is an unworthy fifth birthday present. The greatest achievement of the Act - 'bringing rights home' - would be undermined, and responsibility for the protection of rights in this country would again rest not with our judges, but would be exported to an international tribunal. This would undermine our commitment to the most fundamental human rights, damage our standing in the world and subvert the important value of the rule of law.


Stephen Grosz is head of public law and human rights at London law firm Bindman & Partners