Britain's new coalition government has swung into action, announcing its desire to break with past. Wide-ranging spending cuts, totalling over £6 billion, were announced earlier this week in an attempt to undo the damage caused by Labour's disastrous handling of the economy. 'The age of plenty is over' the government warned. Tackling Labour's economic legacy is one thing - the damage will take years, if not generations, to unravel - but the new coalition has made a start.
Little attention has, however, been given to unravelling Labour's equally ruinous legal legacy. Under Tony Blair and Gordon Brown, the Labour Party has passed a staggering 4,289 new laws - averaging almost one a day for their time in office. Yet, few pieces of legislation have proved as contentious as the Human Rights Act. Enacted in 1997, it has come under constant criticism for elevating the rights of criminals over those of civil society; that is, ordinary citizens who obey the law.
The matter was brought into sharp relief again this week when a ruling in the Special Immigration Appeals Commission (SIAC) found that two terrorists who had planned attacks in Britain could not be deported. Both men, Abid Naseer and Ahmed Faraz Khan, entered Britain on legitimate student visas from Pakistan, and enrolled in computer courses at the John Moores University in Liverpool.
The case has been mired in controversy since their arrest, along with nine other men, last year. Assistant Commissioner Bob Quick, then the country's most senior counter-terrorism officer, was forced to resign after accidently revealing sensitive documents about the case on his way to a meeting in Downing Street.
Criticism of the police became even more pointed after none of the arrested men was charged with criminal offences. Almost all were Pakistani nationals, and most voluntarily elected to return home. Naseer and Khan resisted deportation and appealed to SIAC. Had they not, the facts of their case might never have been known.
An email from Naseer to Pakistan on 3 December 2008 read:
I saw a slight glimpse of Huma day before yesterday but she was very weak and difficult to convince. She says she is busy with her studies and it will take her long. Nadia is more gorgeous than Huma at the moment and she is easy to befriend… Nadia is crystal clear girl and it won't take long to relate with her. Her parents like me as well. What do u suggest my friend?
The Security Service - more commonly referred to as Mi5 - argued that the girls' names referred to different explosives and their qualities. 'Huma' is believed to have been a reference to hydrogen peroxide, used in previous bomb plots including 7/7.
Another email sent from Nasser to Pakistan on 15 December 2008 read:
About my girl friend. As I told you about Huma's affair. She is Nadia is still waiting for my response. She is very loyal and she has created a place in my heart.
You know Gulnaz and Fozia. WOW man. I would love to get them in my friends list but you know I have been thinking about their abilities. Gulnaz sounds ok but she is found [fond] of money. Fozia is some times bull***t. She lets you down sometime.
I am still keeping my car because most of the jobs they ask for it and other reason is you know girls mostly like guys with car. They love money and nice car. That's they all about.
Again, 'Gulnaz' is believed to have been code for acquiring firearms through the black market while 'Fozia' is a reference to fertilizer, which can be used in homemade bombs. Mi5 argued that the reference to cars could suggest Nasser was thinking about deploying car bombs.
Another email sent by Nasser on 26 January 2009 read:
All you have to do is to be serious and give them [women] plenty of time I am constantly in touch with the families of the girls I mentioned before and will choose which ever can be my faithful and loving wife...I will be careful about my choice because your whole family life depends upon the decision. I will look at every aspect of their family and relatives and I am sure when engagement is finalised then it will be huge party for everyone.
A final email on 3 April 2009 suggested to the Security Service that the plot was reaching its final stages. It read:
My mates are well and yes my affair with Nadia is soon turning in to family life.
I met with Nadia family and we both parties have agreed to conduct the Nikkah [Islamic marriage] after 15th and before 20th of this month. I have confirmed the dates from them and they said you should be ready between these dates.
I am delighted that they have strong family values and we will have many guests attending the party. I am sure Nadia was the right choice for me at this time because I was getting older day by day LOL.
Anyways I wished you could be here as well to enjoy the party. That's all from here, nothing new to write down. Pay my love to Hassan and regards to all your family members.
Substantial amounts of evidence were also presented to SIAC in closed sessions. It concluded that it was 'satisfied to the criminal standard that the user of the sana_pakhtana account [the account to which Nasser had been sending his emails] was an Al Qaeda associate'.
Regarding the email sent on 3 April, the court found Nasser's explanation to be 'utterly implausible'. Again, SIAC concluded that it was satisfied 'to the criminal standard that Naseer's account of the emails is a lie, deliberately told to conceal their true meaning...We are sure that that email conveyed a sinister and alarming message to an Al Qaeda associate'.
The judgement continues:
For the reasons stated, we are satisfied that Naseer was an Al Qaeda operative who posed and still poses a serious threat to the national security of the United Kingdom and that, subject to the issue of safety on return, it is conducive to the public good that he should be deported.
Yet, doubts about Nasser's 'safety on return' have meant that he will remain in Britain despite the court finding that 'it is conducive to the public good that he should be deported.' Ahmed Faraz Khan, whom the court found was 'willing to participate' in Nasser's conspiracy also won his appeal against deportation on the same grounds.
The judgement reveals glaring fault-lines in the new Conservative-Liberal alliance. The Conservative election manifesto had promised to replace the Human Rights Act with a British Bill of Rights. But the Cabinet Office minister, Francis Maude, has since told the BBC 'we're not planning that.'
Justice Secretary Ken Clarke has also suggested that repealing the Human Rights Act is not a priority. He previously characterized David Cameron's opposition to the legislation as 'xenophobic' and 'anti-foreigner.'
The Liberal Democrats are also staunch supporters of the Human Rights Act and would oppose any plans to repeal it. Shortly after the SIAC judgement was announced their leader, Nick Clegg, told journalists, "we, like any other civilised nation, abide by the very highest standards of human rights."
Contrast that to the sentiments of his counterpart, the Home Secretary, Theresa May, who said she was 'disappointed' with the decision.
Of course, repealing the Human Rights Act would only go part of the way to changing the lopsided rights culture that currently favors offenders over victims. Britain is also a signatory to the European Convention on Human Rights (ECHR) of which Article 3 states:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Even if the Human Rights Act were repealed, this would continue to make it almost impossible ever to repatriate foreign terrorists.
A policy document released by the Conservatives in February, A Resilient Nation, promised to "review jurisprudence relating to ECHR to permit deportation of foreign nationals." Again, however, this remains a contentious issue not just between Conservatives and their Liberal Democrat partners, but within the Conservative Party, as well.
The Attorney-General, Dominic Grieve, has ruled out withdrawing from the ECHR, in the belief that such a move would "send a very damaging signal about how the UK viewed the place and promotion of human rights and liberties."
Grieve misunderstands the point here. Repealing the ECHR or Human Rights Act is not synonymous with a move towards barbarism and torture. Long before the ECHR or Human Rights Act came into effect, the abuse of prisoners in British prisons stopped. Repealing the current legislation would not signal a return to anything less.
That much seemed to be established last year when the courts considered the case of Abu Qatada, a Jordanian national with alleged links to al-Qaeda. He is in a British jail, and fighting extradition to Jordan, where he is wanted on terrorism charges. The courts found that evidence of torture in another country "does not require this state, the United Kingdom, to retain in this country, to the detriment of national security, a terrorist suspect."
The implication is that Britain cannot be held responsible for the actions of other nations in cases where foreign nationals endanger national security and abuse the freedoms extended to them.
There is a more important point here, too. Individual rights - typically those of the offender - must be balanced against national security, national interest and the collective rights of society. These also require protection.
Conservative Member of Parliament, Douglas Carswell, highlighted this after last week's SIAC judgement, saying, "There can be no clearer illustration that human rights are not working in the national interest".
"We need a British Bill of Rights that ensures that the state is not overbearing on individual freedoms and liberties but doesn't stop us removing from the country people who are opposed to our way of life".
Judges are hamstrung by the existing legislation. The new government is not. It has already revealed itself as willing to break with the policies of its predecessors, and must now redress the balance which has placed the rights of offenders above those of law-abiding citizens.