The war on human rights

The statute books are littered with laws rushed in at times of crisis. Now, more than ever, we must not lose sight of individual liberty

It has taken just three weeks for the effects of the terrorist attacks on the other side of the Atlantic to wash up on the shores of the British constitution. Last week, the Lord Chief Justice, warned the Government that it must keep within the law when it introduces tough new measures to clamp down on terrorist activity over here.

Lord Woolf's comments come in the wake of suggestions by the Home Secretary, David Blunkett, that the Government might be prepared to overrule the Human Rights Act. But what has caused the judiciary to worry most is Mr Blunkett's reference to the role of ministers, rather than judges, as the ultimate guardians of our civil liberties.

In an interview with Radio 4's Law in Action, Lord Woolf said the Human Rights Act was there to protect the "liberty of the individual" and the attacks on America "must not deflect us from that". He also reminded ministers that judges will have the final word on whether any emergency measure is compatible with the Human Rights Act 1998.

Lawyers know that the statute books are littered with laws brought in during times of national crisis but which have been misused to achieve results not intended by the lawmakers. The Public Order Act 1936, rushed through parliament to combat Oswald Mosley's blackshirts, but later used to stop gay men holding hands in public, is a good example of this. Nevertheless, there is now a political will to enact draconian anti-terrorist measures whatever the constitutional cost.

In tandem with his European colleagues, Mr Blunkett also plans to crack down on terror groups by bringing in EU-wide arrest warrants and removing obstacles to extradition. The new European laws, which were already in train before the attacks on America, include a wide definition of a terrorist act and what constitutes a terrorist group.

Liberty, the UK civil rights group, has warned that the proposals would lead to "political involvement in the judicial process". Campaigns director Mark Littlewood says: "If you are dragged from your home and then sent to a country where you don't know the law then it should be a matter for the courts to decide whether you should go. Leaving it to the minister is more than just cutting corners."

"Fast-track extradition," comments Fair Trials director, Stephen Jakobi, "will not only expose increasing numbers of innocent citizens from EU countries to injustice and abuse of their fundamental rights, it will also mean that they will be uprooted from their own countries to spend weeks if not months in foreign prisons while the investigation goes on."

The Americans are prepared to force through even tougher measures. John Ashcroft, the US Attorney General, has proposed a package of legislation which would greatly expand the use of wiretaps and internet monitoring, tighten immigration laws and freeze bank accounts used by suspected money-launderers. He justified this by saying that it was easier to investigate someone involved in illegal gambling than it was to investigate someone involved in terrorism.

The willingness of governments to ignore or duck the constitutional implications of their international fight against terrorism shows that politicians have scant regard for the rule of law. So it is worth saying now that international law might be all that stands between us and a third world war. Lawyers therefore have a duty to make more noise.

But in the drive to create support for a shaky coalition between the Arab states and the West anyone who questions the case against Osama bin Laden is immediately branded as a traitor to the cause. No wonder so few lawyers have dared to put their heads above the parapets and ask to see the evidence before the shooting starts.

However, one leading figure among the international legal community has voiced what many lawyers think. Richard Goldstone, a former chief prosecutor for the International War Crimes Tribunal for the former Yugoslavia, forcefully urged the world's democracies to stay within international law. Speaking on BBC Radio 4's Today programme, he said: "I don't have doubts about the evidence, we simply haven't yet seen it. Certainly, as a lawyer – and I'm sure other lawyers would agree – we must reserve judgement until that evidence has been disclosed."

Judge Goldstone said the "optimum" thing to do would be to bring the perpetrators to court: "I think it's very important for the democracies, for the major democracies of the world in particular, to remain within the law and to respect international law." He said he did not believe the evidence needed to be made public before any military action was taken but that it should be disclosed afterwards, "preferably before a credible court".

The search for an acceptable forum to try bin Laden, should he ever be produced, will prove a formidable stumbling block for both the Americans and the Taliban. The most likely forum, the long-awaited International Criminal Court, has not been ratified by the Americans. While an Islamic court in a neutral country will not satisfy America's desire to see justice done. A courtroom solution looks still a long way off.

The Americans have so far failed to provide the damning evidence which tells the world of how Osama bin Laden plotted to bring down the United States.

The Taliban's latest offer, to hand him over once they have seen the case for the prosecution, has been rejected out of hand. But international law works on many levels. Last month it emerged that a neutral Arab state was planning a legal challenge to the proposed military action by the US and its allies. The unnamed country plans to challenge any proposed action in the High Court and in the Hague's International Court of Justice on the basis that it would contravene the North Atlantic Treaty.

The Arab state has appointed a Berkshire law firm and approached Labour backbench MP George Galloway to act as its mediator with the Government in the dispute. A spokesman for Charles Khan Solicitors says a letter has been sent to Downing Street advising of the legal action. He also said that the identity of the Arab state behind the challenge would be disclosed and legal action commence if the Prime Minister indicated that military strikes were to be launched.

The legal challenge is to focus on Article 51 of the North Atlantic Treaty, the founding document of Nato. This states that nothing "shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations".

And Charles Khan Solicitors argues that an attack against Afghanistan would result in the deaths of innocent civilians and, as such, could not be justified as an act of self-defence.