Lord Phillips of Worth Matravers, the head of the UK Supreme Court, has responded to accusations that the Human Rights Act is hampering the fight against terrorism, and that “respect for human rights is a key weapon in the ideological battle”.
With reports this morning that the Government has written to High Court judges encouraging then not to delay a deportation flight to Bagdad, the speech presents a well timed defence of judicial independence.
The Gresham Special Lecture: The Challenges of the new Supreme Court is available in text and audio format. Lord Phillips used the opportunity to defend the judiciary in light of their regular use of the Human Rights Act to limit the effects of the anti-terrorism laws enacted by the government in the past decade, including controversial measures such as control orders and the Special Immigration Appeal Commission (SIAC). He said:
After 9/11 the British Government decided that the threat of terrorism in Britain was such as to amount to a public emergency threatening the life of the nation and purported, on that ground, to derogate from the Convention.
The lesson of history is that depriving people of its protection because of their beliefs or behaviour, however obnoxious, leads to the disintegration of society. A democracy cannot survive in such an atmosphere, as events in Europe in the 1930s so powerfully demonstrated. It was to eradicate this evil that the European Convention on Human Rights, following the example of the Universal Declaration of Human Rights by the General Assembly of the United Nations on 10 December 1948, was prepared for the Governments of European countries to enter into.
The most important word in this document appears in article 1, and it is repeated time and time again in the following articles. It is the word “everyone”. The rights and fundamental freedoms that the Convention guarantees are not just for some people. They are for everyone. No one, however dangerous, however disgusting, however despicable, is excluded. Those who have no respect for the rule of law – even those who would seek to destroy it – are in the same position as everyone else.
He referred to a number of recent extradition cases, with the most controversial being the “Pathway Students” case (see our post) where two men suspected terrorism were saved from deportation as they risked ill treatment or death if they were to be sent back to Pakistan. The case reopened the debate as to whether the Human Rights Act is reducing the government’s ability to fight terrorism. Lord Phillips said in response:
To this I would add this comment. The so called ‘war against terrorism’ is not so much a military as an ideological battle. Respect for human rights is a key weapon in that ideological battle. Since the Second World War we in Britain have welcomed to the United Kingdom millions of immigrants from all corners of the globe, many of them refugees from countries where human rights were not respected. It is essential that they and their children and grandchildren should be confident that their adopted country treats them without discrimination and with due respect for their human rights.
This argument amounts to “draining the ideological swamp” being one of the key weapons against terrorism. One counter-argument would be that no matter how angry they get, prospective terrorists can probably do a lot less damage if they have been deported. Joshua Rozenberg on his Standpoint Blog has responded:
Lord Phillips is, of course, right in saying that Britain should respect the human rights of immigrants. But there seems to be no evidence that people turn to terrorism because their rights are not respected. And it must be even harder to sustain the corollary of that argument – that respecting the rights of immigrants will reduce the risk of attack by terrorists. Those behind the London bombings of 7 July 2005 are not thought to have been concerned about any perceived inadequacies in the Human Rights Act.
Not the end of the debate
This will not be the last word on this debate. It is a coincidence that the coming into force of the Human Rights Act in October 2000 almost exactly coincided with the beginning of the “War Against Terror”, and the slew of controversial legislation which followed. As a result, however, the judiciary have found themselves being regularly criticised for telling the Government off for enacting legislation which runs foul of human rights law, which, as Lord Phillips rightly says, was precisely the will of Parliament when it passed the 1998 Act in the first place.
Lord Phillips is right to defend judges who apply the law rather than responding to public pressure. The latter is the job of legislators, not judges. The Guardian reports this morning that the Government solicitors have written to judges requesting that they don’t delay a deportation flight bound for Bagdad. The judiciary will clearly need plenty of defending against this kind of pressure if it is coming not only from the national media, but also directly from the Government.