WHEN THE TWO most prominent judges in the country simultaneously attack the Government, you know there’s a war on. A very British war, one of intellect and condescension, but still barbed.

On Tuesday, the Lord Chief Justice, Lord Phillips of Worth Matravers, criticised ministers for prison overcrowding and treatment of drug addicts. His predecessor, Lord Woolf, went further. He said that the Prime Minister’s plans to reform the Human Rights Act were pointless and that ministers should refrain from making “ill-informed comments” about individual cases — such as the decision to grant Afghan hijackers leave to remain in Britain, which John Reid called “inexplicable and bizarre”. Lord Woolf wants politicians to “exercise self-control”. Might he have wondered if that should also apply to him?

The judges are provoking a constitutional crisis. They demur, of course. At a private seminar recently, Lord Woolf was asked what would happen if there was a clash between parliamentary sovereignty and the rule of law. His sober answer was that the question ought not to be asked. But it must be. The issue of deportation is a potentially fatal faultline in the constitution. The Human Rights Act was a compromise that depended on both sides showing restraint — which neither seems minded to do.

As the titans clash overhead, most normal people stand bemused. They see only wrongs, while judges and civil liberties groups rail about rights. This week it was a mother of three who first claimed she was a lesbian and would be stigmatised if she went back to Jamaica — then had three more children. The Home Office took so long to challenge her again that now she has claimed successfully that deportation would breach her human right to “a settled family life”. From immaculate conception to immaculate con. As ministers wring their hands over the convicted criminals and suspected terrorists who might be tortured if we sent them home, most people I talk to are wondering who exactly is looking after the national interest. Every time the politicians bluster about taking action, they get tangled up even more.

The problem lies in Article 3 of the European Convention on Human Rights, which dictates that we cannot deport anyone who might face torture or inhuman or degrading treatment at home. Strasbourg judges have gradually stretched the definition of “inhuman or degrading treatment” until it covers, for example, the convicted drug dealer who refused to return to St Kitts on the ground that he might not get adequate treatment for his HIV. Strasbourg set a vital precedent in 1996 by ruling that Britain could not deport a Sikh separatist called Chahal, despite undertakings from the Indian Government to protect him, because he might be attacked by rogue police. The prohibition was absolute, irrespective of the victim’s conduct or national security.

From that point on, the safety of the individual was to take precedence over national security. Although the Act does not do away with the sovereignty of Parliament — our judges cannot directly strike down legislation, unlike the US Supreme Court — Article 3 in practice gives judges almost absolute power over deportation decisions. This has only become a real problem in this century, when increases in migration coincided with the emergence of a new form of terrorism.

How can we get off this hook? The Government is backing a test case at Strasbourg, together with the Netherlands, Lithuania, Portugal and Slovakia, to overturn the Chahal ruling. If this succeeds, it should become easier to remove shysters — assuming that the British courts back down and accept that crime, cheating and plotting should rule out asylum.

As for suspected terrorists, ministers are seeking a middle way between freeing such people and sending them to meet a horrible fate elsewhere, by signing memorandums of understanding with countries such as Egypt and Jordan. But judges are unlikely to accept these as guarantees against torture. Amnesty International certainly does not. It is refusing to monitor deportees for the Government. At first their refusal to co-operate looks strange. It makes it more likely that ministers may eventually throw out human rights concerns altogether. However, it is consistent with Amnesty’s stand against torture. The Government is seeking these memos of understanding largely to deal with a handful of men who have not been charged. We need either to charge them or drop it.

And this is where the judges have a point. They are wrong to be so dogmatic on asylum, but their case is much stronger when it comes to suspected terrorists. It is worth recalling Churchill’s words in 1943, when he faced an almighty threat to national security. “The power of the Executive to cast a man into prison”, he said, “without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious.” In democratic Germany today, suspected terrorists are either charged or released. In Britain, we intern them without trial. Our intelligence agencies, unlike most others, are reluctant to submit phone intercept material that might compromise their sources. But where there is no evidence, there is only suspicion.

The Law Lords ruled two years ago that it was unlawful to keep suspects locked up in Belmarsh without trial. They will rule soon on the control orders that Parliament substituted. They are likely to object to these too. We ought to try these people, even if it is in some kind of closed court. We must also protect the independence of the judiciary. But they must understand that their remarks make them seem increasingly unaccountable and remote. Judges should be helping the Government to refine the interpretation of Article 3, not portraying all attempts to do so as hysterical. Suspects must face trial. But the quid pro quo must surely be to tell the shysters that enough is enough. That they cannot subvert the very system of justice we are rightly so proud of.

camilla.cavendish@thetimes.co.uk

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