LONDON, 29 September 2004 — Human rights must not be abandoned in the “war on terror”. The British should take seriously the growing number of reports that anti-terrorist measures fall disproportionately on members of the UK’s Muslim community. It is easy to understand how, in the wake of the Bigley affair, the Russian school massacre, and even the invasion of the UK 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. In the UK, the Human Rights Act permits the limitation of a number of its designated liberties when national security demands it. However, the difference between Britain and authoritarian countries is that UK 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 UK 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 Guantanamo 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. British Home Secretary 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 the now leader of the opposition Conservative Party Michael Howard when he 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 favor of so-called public duties.
Both Blunkett and Howard are wrong. For a start, human rights litigation is not multiplying exponentially.
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.
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 is professor of public law at University College London, and a vice-president of the Council of Europe’s Commission for Democracy Through Law.
