Senior British judges are preparing to face down what they see as ministerial pressure over the proposed deportation of foreign terror suspects under the government's controversial security measures in the wake of the London attacks.
The judges, who could ultimately decide on deportations, have said that they will not rubber stamp decisions to deport suspects under the human rights deal struck with Jordan and sought with other countries such as Algeria. They say they will look at each case, studying the history and current situation in the particular country, before deciding on the risk to the individual.
Four of the 37 appeal court judges' views -- given on condition of anonymity -- represent wider judicial opinion. One judge said he had spoken to colleagues who took the same stance. The judges are adamant that they will not trim their judgments in response to ministerial comments appearing to blame the judiciary for hampering attempts to rid Britain of dangerous extremists.
"The judges won't buckle," one said.
Another commented: "Judges do not need lessons on national security."
Only the fourth questioned the length to which judges could go in challenging agreements between governments. He added: "I'm not influenced by the fact that judges are effectively being told to toe the line. On the other hand, judges can't ignore the current situation and I think instinctively one is likely to be a bit tougher than one might have been three months ago."
Ministers have concluded a memorandum of understanding with Jordan, which has given assurances that no one deported there will face torture or inhuman treatment.They hope to strike similar deals with about 10 north African and Middle Eastern countries.
Last week Home Secretary Charles Clarke told the judges that they should respect the bilateral deals as genuine.
"It cannot be right that government to government agreements are not respected," he said.
But one judge countered: "They [the government] are not going to get the judges to say `there's an agreement, so everything's hunky dory.'"
Agreements would be a factor in deciding a case, but would not determine the final decision.
Lord Falconer insists that the government is not trying to influence the judges.
"The debate that we are currently having is utterly open and inevitably involves a discussion of the role of the judiciary but does not involve the government seeking in any shape or form to put pressure on the judges," he said.
The stumbling block to deporting foreign terror suspects and extremists is Article 3 of the European Convention on Human Rights, which guarantees protection against inhuman or degrading treatment or torture.
In 1996, the European Court of Human Rights in Strasbourg ruled that Britain would breach Article 3 if it sent Karamjit Singh Chahal, a Sikh militant, back to India because he would face a real risk of inhuman treatment by the authorities there.
The government opted out of Article 5, the right to liberty, to lock up foreign terror suspects without trial. But the right not to be tortured or treated inhumanely is an absolute right from which no opting out is allowed. The majority of the Strasbourg judges ruled in the Chahal case that the courts could not balance the state's interest in national security against the interests of the proposed deportee. Chahal was released after six years in detention.
Under the Human Rights Act, which became law in 2000, UK judges are obliged to take account of Strasbourg case law. To counter the Chahal ruling, ministers are considering bringing in primary legislation requiring the interests of the state to be balanced against the risk to the individual when deciding to deport foreign terror suspects.
But even under current law, Lord Falconer said, judges could still approve the deportation if the foreign government's assurances in the agreement were specific enough and there was independent monitoring afterwards.
However, one appeal court judge pointed out: "Certain countries practice torture absolutely routinely and it may not be altogether easy to credit a promise that they're going to stop."
On monitoring, another said: "Whether that's going to work is going to vary from country to country. Some of these countries have conditions which are pretty unpredictable. We will have regard to all the evidence put before us."
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