Last week’s formation of a Conservative-Liberal Democrat coalition government in the United Kingdom under the leadership of David Cameron raised serious questions as to how the two parties could reconcile their civil liberties platforms. The Human Rights Act 1998 (HRA) is the focal point of this rupture between the parties, with the Conservative Party’s manifesto pledging to replace the HRA with a “British Bill of Rights” and to limit the requirement upon courts in the UK’s legal systems to take account of the rulings of the European Court of Human Rights (ECtHR). The Liberal Democrat manifesto, by contrast, called for a written UK Constitution (which could conceivably include a British Bill of Rights) but would countenance no watering down of the protections currently in place. The Sunday Times was quick to flag this up as a potential long-running source of division between the coalition partners (although not as quick as Cian Murphy and Deidre Duffy on HRinI).

Yesterday’s ruling by the Special Immigration Appeals Commission that Abid Naseer (pictured left) and Ahmed Faraz Khan could not be deported to Pakistan, despite their involvement in a terrorist plot in the North West of England that was broken-up last April (after Assistant Metropolitan Police Commissioner Bob Quick exposed documents detailing the plot to Downing Street photographers), elevates this issue to the forefront of British politics. This decision was based upon the risk that these individuals would face torture or inhuman and degrading treatment if deported to Pakistan. As Abid Naseer’s face stares down at commuters across the UK this morning, right-of-centre newspapers which have lined up to criticise the decision and to remind the Conservatives of their manifesto pledges. The Daily Mail, describing the decision as “the latest in a string of human rights victories for terrorists and terrorist sympathisers”, launched a direct attack upon the HRA:

There are no prizes for guessing which statute we have to thank for this perversity. For yesterday’s ruling is the latest of countless injustices perpetrated under the Human Rights Act since Tony Blair pushed it through Parliament in 1998, sweeping away common-sense laws and liberties that had evolved over centuries.

This analysis, intended to haunt Conservative MPs with the spectre of betraying their manifesto pledge to core supporters, is deeply flawed. Firstly, basis of the decision (or, as The Daily Mail would have it, the source of the “perversity” ) is not the UK’s HRA, but rather the European Convention on Human Rights (ECHR) itself, a treaty which incorporated the UK’s “common sense liberties” into a list of enumerated rights, including the right not to be tortured (Article 3 ECHR). The right not to be tortured in the United Kingdom traces its roots back to the 17th Century. Reduced to its simplest form, the ECtHR Article 3 jurisprudence, in the cases of Chahal and Saadi, has emphasised that deporting individuals to countries where torture is practiced, and where it is likely that they will be tortured, amounts to complicity in torture. There is no moral dividing line between a state which conducts torture or inhuman and degrading treatment and a state which sends an individual to a country where they are highly likely to be tortured. And as Mitting J emphasised in his ruling yesterday, Pakistan’s Directorate for Inter-Services Intelligence (ISI) is regularly responsible for the torture of terrorist suspects. Given the evidence released in court of describing Abid Naseer’s direct contact with an unknown “Al’Qaeda handler” in Pakistan, his interrogation upon being returned to Pakistan would be virtually certain.

Secondly, even if the Conservative Party’s manifesto plans were adopted wholesale, neither Abid Naseer nor Ahmed Faraz Khan would be deported. The Conservatives have no plans to leave the European Convention on Human Rights. Attorney General Dominic Grieve has said that “[s]uch a withdrawal would send a very damaging signal about how the UK viewed the place and promotion of human rights and liberties and would be an encouragement to every tin pot dictator such as Robert Mugabe, who violates them.” By simply pledging to attempt to alter how the Convention is interpreted before UK Courts, the Conservatives would ensure no more than arduous litigation battles fought all the way to the European Court of Human Rights in Strasbourg. Nothing short of withdrawing from the ECHR could change the ultimate result of a case involving the infringement of an absolute right, such as the right not to be tortured.

Moreover, amid the media hype, it must be remembered that no one has been convicted of any offence in relation to last year’s bomb. No explosives for the putative terrorist “spectacular” were ever discovered. In such circumstances immigration law should not be employed to deliver ersatz punishment where no criminal offence could be proven beyond all reasonable doubt. SIAC’s labelling of Naseer and Khan as terrorists on the basis of largely secret evidence which could not be used in criminal court (possibly with the motive of vindicating the actions of the police in breaking up the plot) produced today’s ground-swell of opinion against the human rights protections within the UK.

So where does this leave the Human Rights Act, one week into the Conservative-Lib Dem coalition? In an interview on Radio 4′s Today Programme this morning Theresa May, the new Home Secretary, refused to rule out repeal of the Human Rights Act and said that this matter had not yet been resolved in the coalition’s programme for government. Senior Liberal Democrats, including Chris Huhne, immediately announced that they would resign from government in any such event. As all of this was happening as Deputy Prime Minister Nick Clegg announced the coalition’s plans for the biggest political and civil liberties reforms since the Great Reform Act of 1832, including scrapping ID cards and extending rights to peaceful protest.

Amid this frenzied and contradictory activity, it must be remembered that whilst The Daily Mail is right to assert that 10.7 million voters supported a Conservative manifesto that would likely see the HRA repealed, a much larger percentage of the population voted for parties that would retain the Act. There is no Commons majority for any legislation which would reduce domestic human rights protections.

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Written by Colin Murray

Colin Murray is a senior lecturer at Newcastle Law School where he specialises in national security law, legal history and public law. Alongside Roger Masterman (Durham University) he is the author of “Exploring Constitutional and Administrative Law”, a textbook on UK public law. You can contact him at colin.murray[at]ncl.co.uk or (+44) 191 2225805