Published on Tuesday, September 28, 2004 by the Guardian/UK
Beware the Tools of Tyranny
Human Rights must not be Abandoned in the 'War on Terror'
by Jeffrey Jowell
We should take seriously the growing number of reports that anti-terrorist measures fall disproportionately on members of our Muslim community. It is easy to understand how, in the wake of the Bigley affair, the Russian school massacre, and even the invasion of our own House of Commons, the niceties of liberal procedures are seen as obstacles to the "war" on terror.
It is, sadly, true that nowadays no society - democratic or repressive - is immune from increasingly inventive forms of deadly assault. But it is not true that liberal societies are helpless in the face of terrorist attacks. Our Human Rights Act permits the limitation of a number of its designated liberties when national security demands it. However, the difference between us and authoritarian countries is that our anti-terrorist measures must be proportionate to the danger posed and should not undermine the essence of democratic practice.
The precise extent of any limitation on our procedural safeguards is always difficult to establish. But democracies should not allow potentially innocent people to be held for long periods without a trial, or to be humiliated or damaged by torture. Once a democratic country closes down free expression, or begins to discriminate against certain minorities, the bright distinction between its values and those of authoritarian regimes will soon dim. As a US supreme court justice, John Paul Stevens, said in a recent case about conditions at Guantánamo Bay: "We must not wield the tools of tyranny even to resist the forces of tyranny."
The feature that distinguishes Britain and other democracies most clearly from tyrannical states is the independence of the judiciary, which should not lightly be challenged. David Blunkett has frequently berated judges who have held against his department. And he recently threatened to exclude any judicial review in asylum cases. Similarly, when Michael Howard was home secretary, he challenged the judiciary and is now leading the Conservatives in an attack upon an alleged surfeit of claims under the Human Rights Act and what he calls the "compensation culture". More subtly, both sides of the political spectrum are seeking to downplay rights in favour of so-called public duties.
Both Blunkett and Howard are wrong. For a start, human rights litigation is not multiplying exponentially. Do not believe the anecdote about the burglar who successfully sued the owner of a home he ransacked after falling through a defective skylight. It is true that, prior to the introduction of the Human Rights Act, the committee set up to anticipate its impact on court business believed it was likely to stimulate a "flood" of new cases. But nothing of that scale has taken place. Nor has the dire prediction that the act would serve as a "villain's charter" remotely been fulfilled.
It is certainly the case that judges have, over the years, limited the unfettered rights of ministers. Until recently, when parliament conferred discretion upon a minister in broad terms (to act "in the public interest" or "as he sees fit"), his actions were virtually immune from judicial challenge. Nowadays, our courts require public officials to have greater respect for the people they serve - for example, by providing a fair hearing before limiting rights or interests. Even so, the judges have been remarkably restrained about interfering with the substance of discretionary decisions by ministers. So we should welcome the judicial development of principles of good public administration and accountability.
The argument for duties rather than rights is another red herring. Of course we should encourage a notion of civic duty in a general sense. But civic virtues cannot easily be legislated. The old Soviet constitutions used to impose a catalogue of vague obligations upon citizens (such as the duty to go to the aid of anyone in distress). Because they were not enforceable, they diminished respect for the constitutions. In any event, our most important duties are to respect the rights of others.
Instead of belittling rights and judges, Blunkett and Howard could take a leaf out of Nelson Mandela's book. Shortly after he became president, one of his decisions was struck down by South Africa's new constitutional court. He immediately welcomed the judgment, saying it established from the outset that in the new South Africa no one was above the law, and that the judges were the final arbiters of the constitution.
In the heat of the vital battle against new and fearsome forms of attack, it is tempting to tolerate an erosion of equality and liberty. However, these principles are hard-won cornerstones of our democracy, which must also be heavily defended against the terrorist threat.
· Jeffrey Jowell QC is professor of public law at University College London, and a vice-president of the Council of Europe's Commission for Democracy Through Law
© Guardian Newspapers Limited 2004