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Last Updated: Friday, 12 August 2005, 11:51 GMT 12:51 UK
Security fears prompt rights question

By Jon Silverman
Legal affairs analyst

Scales of justice
Judges will be expected to balance human rights and national interests

Ten foreign nationals thought to be a threat to UK security have been detained pending deportation.

BBC News considers efforts to safeguard human rights while protecting the country.

The 10 foreign nationals now in maximum security detention look set to be the catalyst for a radical re-examination of the relationship between human rights and national security.

The government is inviting the courts to accept memoranda of understanding with countries such as Jordan as a demonstration that deportees will not be ill-treated.

If the judges are unwilling, then the argument will shift to the Human Rights Act.

Can it remain intact in the face of the threat posed by Islamic terrorism?

The Lord Chancellor, Lord Falconer, is saying to the judges that, if the risk to the safety of the individual is deemed low and the risk to the security of the state high, the balance should be in favour of deportation.

Abu Qatada
Abu Qatada is among those who have been detained

This is an astute pitch.

Government lawyers are well aware that the European Court in Strasbourg has acknowledged, in a number of judgements, the right of individual states to adopt measures proportionate to the problem they face.

France has taken this as something close to a carte blanche to deport a number of Algerians to their homeland, despite the well documented use of torture in that country.

So far, the French higher courts have not been asked to declare this to be incompatible with Article 3 of the Convention which is an absolute prohibition on the use of torture.

In the UK, a cadre of determined defence lawyers, well-versed in human rights law, is unlikely to give the state so much leeway.

On one thing, there is no disagreement between politicians and judges.

In 2001 the law lords ruled, in the case of a Pakistani cleric alleged to have been a backer of terrorism abroad, that it is ministers, not the courts, who must determine what is in the interests of national security.

Nothing in the Human Rights Act interferes with this principle.

Home secretary's powers

It is how the judges interpret the act in setting the boundary between the rights of the individual and the protection of society which is at issue.

Since no previous court decisions have been made against the background of an attack on British soil, it is impossible to predict the judicial response.

Likewise, the exclusion of Sheikh Omar Bakri Mohammed from the UK has to be seen in the post-7 July context, which presumably makes his presence less conducive to the public good than it was on 6 July.

The home secretary's powers to deport under the 1971 Immigration Act are broad and as long as the administrative decision was taken in accordance with the rules, any legal challenge by the Sheikh looks likely to fail.

Should radicals be deported?
12 Aug 05 |  Have Your Say
Howard warns judges over terror
10 Aug 05 |  Politics


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