Government versus the law

Geoffrey Bindman asks why the government keeps challenging human rights when violation only undermines the law and threatens civil liberties

Home secretary David Blunkett says a balance must be struck to protect our freedoms and our security (The Observer, 8 September).

That balance is correctly struck in the European Convention on Human Rights.

The government has faced a series of humiliating defeats in the courts because it has flouted the convention, as embodied in its own Human Rights Act, both in the letter and the spirit.

The clearest illustration is the power to detain foreign nationals indefinitely without charge or trial which the government pushed through a hesitant Parliament in the Anti-Terrorism Crime and Security Act last December.

This is plainly incompatible with article 5 of the convention, and the government's attempt to take advantage of a loophole which allows it to derogate from article 5 has so far failed.

Derogation is permitted only in a time of war or other public emergency threatening the life of the nation, and even then only to the minimum extent and consistently with other international obligations.

The special administration appeals commission led by Mr Justice Collins held the attempted derogation failed because it was 'not only discriminatory and so unlawful but also disproportionate'.

The response to the terrorism in the US by al-Qaeda on 11 September 2001 - tougher laws coupled with heightened security and surveillance - was a predictable and widely supported attempt to allay public anxiety and persuade us all that we were protected as far as possible against further attacks.

It is obviously prudent to forestall attacks by putting those planning to perpetrate them behind bars or removing them from the country.

But those people must be identified by evidence of guilt, not by whim or prejudice, and the evidence must be fairly tested before a court.

Targeting the wrong people is worse than futile.

It does nothing to protect the public, damages innocent people, and destroys confidence in the government.

Civil liberties are not mere idealism.

They are our protection not only against injustice but also against the anger of those who suffer injustice, which itself is a spur to terrorism.

The convention was largely the work of British draftsmen, and its underlying principle is that the law protects every person from arbitrary action by the state.

The rights embodied in the convention are rooted in English legal tradition traceable to the Magna Carta.

When the government challenges the limitations imposed by the Act and the convention on the exercise of arbitrary power, it undermines the foundations of our legal system.

Moreover, the very purpose of the Act is to protect the public against arbitrary action by the government and other public authorities.

The responsibility for compliance thus rests primarily with the government itself.

That is why ministers were right to answer predictions that the Act would provoke a flood of frivolous complaints by investing in an educational programme for government departments and public authorities.

By ensuring that all the practices and procedures of these bodies complied with human rights standards, litigation would be pre-empted.

Likewise, proposed legislation has to be monitored.

Violations of human rights by the government demand better machinery for ensuring compliance.

It is not enough for the government to express unsupported opinion that proposed laws comply with the Act.

It must present argument which is open to challenge before legislation is introduced.

I understand that the Joint Parliamentary Select Committee on Human Rights is seeking a change of practice on these lines.

But it should not be necessary to teach ministers the values entrenched in our legal system, or that sacrificing civil liberties and the rule of law in the name of defeating terrorism is giving terrorism the very victory it seeks.

Geoffrey Bindman is the senior partner at London-based law firm Bindman & Partners