Clare Dyer writes:
Seven law lords are about to face one of the most important questions they will ever be asked to decide: should evidence extracted by torture abroad be admissible in the British courts?
The case, to be heard three weeks from today, will be the first terrorism-related human rights case to reach the Lords since July 7, and the first to test whether in the judges' eyes the suicide bombings have really, as Tony Blair says, changed "the rules of the game".
Like the Belmarsh case, in which the House of Lords ruled that holding foreign terror suspects indefinitely without trial breached their human rights, the torture case concerns the same 10 men, now restricted under control orders.
Two out of three appeal court judges ruled in August last year that evidence obtained by interrogation of third parties in foreign countries, possibly by torture, could be used at the Belmarsh detainees' hearings before the Special Immigration Appeals Commission (Siac), as long as Britain had not taken part in the torture and did not condone it.
A further test of the judges' willingness to stand up to the executive will come next week, when five law lords hear an appeal by the home secretary, Charles Clarke, against a 2-1 appeal court ruling that refusing support to destitute asylum seekers who fail to claim asylum on arrival in Britain amounts to inhuman or degrading treatment.
That case and the torture case will both be decided under the Human Rights Act, five years old next Sunday. Labour piloted the act through parliament, giving individuals the power to enforce their rights in the UK courts instead of having to trek to the European court of human rights in Strasbourg. Yet ministers have chafed under the results ever since.
Before the act, the grounds on which judges could overturn decisions by government ministers were much more limited. Now judges have to decide whether the decision was a proportionate response to a legitimate aim, giving them much greater scope to interfere.
"Thanks to the Human Rights Act, the judges have been given the right to second-guess parliament," the Tory leader, Michael Howard, wrote last month. But the judges point out that it was parliament which enlarged their role when it passed the act. The act stops short of giving judges the right to strike down legislation, but they can declare that legislation clashes with the convention.
The ruling in the Belmarsh case that detention without trial was incompatible with the convention was a landmark, but judges have made declarations in 17 cases so far, seven of them overturned.
The government is not obliged to amend the law. It could, for example, have kept the Belmarsh detainees in prison and waited for them to take their case to Strasbourg. But it passed new legislation and released them under control orders.
For all ministers' tough talk about the judges' interference, they have always brought the law into line, as barrister Keir Starmer QC and Francesca Klug of the centre for the study of human rights at the London School of Economics note in a forthcoming article for the journal Public Law. The act has been regularly attacked by the Tories and by some newspapers for championing the rights of unpopular minorities - asylum seekers, gypsies, terrorist suspects, defendants in criminal cases. But the aim of the European convention, drafted in the wake of the Holocaust, was to ensure basic rights for all.
Since July 7 ministers, including the prime minister, have joined the chorus, openly expressing doubts about an act they trumpeted five years ago as "bringing rights home". They fear that when judges are asked to decide whether to accept no-torture deals between Britain and countries with dubious human rights records they will follow a Strasbourg judgment which says they should not balance state security against an absolute right of the individual not to be tortured.
The government is not planning to amend the act, but is considering introducing separate legislation requiring the judges to balance the two interests in reaching their decisions. One appeal court judge told the Guardian: "That's a whole new ball game, saying we have to sacrifice one individual, or take the risk he'll be sacrificed for the greater good."