In the name of democracy

A ruling against Britain's harsh anti-terrorism laws may force European nations to re-think their own hasty responses to 11 September, writes Robert Verkaik

David Blunkett can't say he wasn't warned. Even before the Home Secretary unveiled his plans to introduce tough anti-terror legislation in the wake of the attacks of 11 September, a steady stream of lawyers and judges had appeared in the media highlighting the potential dangers of setting our laws on a collision course with the European Convention of Human Rights.

Last week, all Blunkett's chickens came home to roost when the Special Immigration Appeals Commission (SIAC) ruled that the emergency laws used to detain nine alleged international terrorists without trial was contrary to human rights. The tribunal, chaired by Mr Justice Collins, said the Government's Anti-Terrorism, Crime and Security Act, which was rushed through in December, was "not only discriminatory and so unlawful... but also it is disproportionate".

Last year, Lord Woolf, the most senior judge in England and Wales, said the Human Rights Act was there to protect the "liberty of the individual" and the attacks on the US "must not deflect us from that". The Lord Chief Justice also reminded ministers that judges would have the final word on whether any emergency measure was compatible with the Human Rights Act 1998. At the same time another influential judicial figure voiced his concern. Richard Goldstone, a former chief prosecutor for the International War Crimes Tribunal, said on BBC Radio 4's Today programme: "I think it's very important for the major democra- cies of the world, in particular, to remain within the law and to respect international law."

But the SIAC ruling will have only added to Blunkett's irritation with the courts – in particular, those judges who allow civil liberty activists to use the Human Rights Act to curb the Home Secretary's powers. He is now left contemplating yet another appeal to the higher courts. But Government lawyers will take comfort from the narrow nature of last week's judgment, which restricted the breach of human rights to the discriminatory treatment of foreign nationals. The clear implication was that if the emer- gency laws could be used to detain UK citizens without trial, then the legislation would be compatible with the HRA.

A statement from the Home Office released after the ruling talked up the positive aspects of the decision: "We are pleased that the court accepts the Government's judgment that in the light of 11 September there is a public emergency threatening the UK. We are also pleased that the court held that the powers of detention... are a proportionate and balanced response to that emergency. The court's finding does not make the detention unlawful, and the individuals will not be released as a result of this judgment."

But human rights lawyers think that once the impact of the British ruling is felt across Europe, other jurisdictions will be encouraged to look at their own legislative responses to the attacks on America. Before 11 September, only eight of the 15 European union countries had any anti-terrorism legislation at all. By Christmas, parliaments across Europe had rushed through a range of emergency laws giving police wide powers to investigate and detain suspects. But none went as far as laws in Britain or America, which allowed suspects to be held indefinitely without charge.

Since then, the European Union has also acted collectively by drawing up a list of proscribed terror groups that European ministers agreed to take action against. Proposed laws which were already in train before the attacks in the US have also been rushed into force to try to combat further Islamist terrorist threats. As well as cross-border arrest warrants and the relaxation of extradition laws, the European Commission has also proposed much wider definitions of what is a terrorist group and what constitutes a terrorist act.

But Liberty, the human rights organisation, said it didn't believe any of the members of the Council of Europe had introduced similar legislation to Britain's, which allowed them to intern foreign nationals and not their own. "No one else has got themselves into this hole," said Roger Bingham, a Liberty spokesman. Stephen Jakobi, director of Fair Trials, and Tony Bunyan of Statewatch said yesterday that further legal challenges under the Human Rights Act could be expected.

The most far-reaching powers to investigate terrorism and intern suspects have been passed in the US. Shortly after 11 September, John Ashcroft, the US Attorney General, ushered in a package of legislation which greatly increases the use of wire taps and internet monitoring, tightens immigration laws and makes money-laundering inquiries easier to complete. He justified the new laws by saying that the FBI needed the powers because of "our belief that associates of the hijackers may be a continuing presence in the US".

Further US legislation allowed suspects to be detained at Guantanamo Bay in Cuba indefinitely and without trial. But Donald Rumsfeld has admitted he would rather most of the prisoners return to their own countries to "face justice". None of the prisoners has been charged, though the Bush administration has not excluded the possibility of trying them by military tribunal or of continuing to detain them even if they are acquitted.