There is not one word in the 1998 Act which refers specifically, or even by implication, to this country’s law and practice on deportation. Article 3, as contained in Schedule 1 of the Act, says no more than this: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The dilemma in which the Government now finds itself about deportations is the product of Sections 3 and 4 of the substantive Act which require primary and subordinate legislation to be read and given effect in a way compatible with the convention rights and, whatever Parliament may have decided, empower the judiciary to declare that a provision of primary legislation is incompatible with a convention right.

This constitutional revolution might be easier to accept were not so much of the convention drafted with an imprecision alien to the tradition in which we have refined our common and statute law. When, for instance, does treatment become “degrading”?

The judges have so far stopped short of extending their restriction on deportation beyond an interpretation of Article 3, but logic suggests that the litigious could soon be seeking protection from the courts because of possible breaches, post-deportation, of, say, Articles 8 or 9. Come to that, a breach of Article 3 is always possible, however improbable, in any receiving country, even a convention signatory. Once we have accepted that we have a duty under the Act to take account of possible treatment of people in other jurisdictions, where do we stop?

I was one of those who, as a former head of the Home Office Immigration Department, remonstrated with Tony McNulty, the Immigration Minister, about the recent proposed expulsions to Zimbabwe. We must have moral considerations at the forefront in considering such matters. But, alas, we now find ourselves, because of an ill-advised piece of legislation, in a legal straitjacket.

I was one of a minority of Labour Party members who advised, when we were consulted before the 1998 Act, that we should let well alone. The “human rights” lobby was too strong, and the expostulations if the Prime Minister acts on his hint that the Act may have to be changed are all too predictable. But bravo Blair.

TONY BRENNAN
Burgh Heath, Surrey

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