Lord Carlisle - Human Rights: What kind of act frees a terror plotter but extradites Gary McKinnon? | Mail Online

What human right frees a July 21 terror plotter but sends an Asperger's victim to languish in a foreign cell?

By LORD CARLILE

Last updated at 1:52 PM on 10th October 2011

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As last week’s cat spat demonstrated, Home Secretary Theresa May may not be a lawyer but she is no slouch when it comes to mastering her brief.

In an attack on the Human Rights Act she cited the case of an illegal immigrant who could not be deported ‘because he had a pet cat’.

Justice Secretary Ken Clarke, a barrister like myself, said the story was ‘nonsense’ and, in fact, Maya the cat was not given by the judge as the reason – or even a reason – for refusing the deportation the Home Secretary was seeking. What the judge said was that the purchase of Maya by the man and his partner was evidence of family life.

Ludicrous: Terror plotter Siraj Yassin Abdullah is free to roam the streets of London after the human rights law came into force

In the scheme of things and despite being a cat-lover, the weight to be given to this fact seems to me to vanish into  the shadows compared with the interest we have as a nation in seeing serious criminals, terrorists, spies and others whose presence is against the public good deported from our shores.

There are several areas where interpretation of the European Convention on Human Rights (ECHR) is working against our country’s interests.

Part of the problem is the fact that, as my much-thumbed copy of the ECHR reminds me, it came into effect as long ago as November 4, 1950.

Its purpose was to ensure that there would never again be the vile human rights excesses of Nazi Germany. Many aspects of life we take for granted today were unknown then. The world was a different place.

Today, there are more than 100 extremist terrorist offenders in custody in Britain, of whom some are shortly to be released, and probably another 60 who have been released since 2007. Most of the latter are now at large in the community.

Human rights? Asperger's sufferer Gary McKinnon lost his appeal against being extradited to the US

The deportation of several of foreign nationality has been frustrated by a narrow interpretation of the ECHR by the European Court of Human Rights and by our own courts.

The question the courts must consider is whether there is a risk of persecution in the offender’s home country.

The reality is they are generally not likely to be persecuted, and there is evidence to that effect from Pakistan.

We in Britain are rightly opposed to any form of torture and will not send people away to be tortured elsewhere. However, the judicial test is set too low, against a ‘risk’ of torture.

The protection of our citizens, our national security, surely justifies deportation unless the court at the very least reasonably believes torture will actually take place.

I totally understand the Home Secretary’s frustrations with the ECHR and the Human Rights Act – especially in so far as they relate to the inability to deport foreigners suspected of intent to commit further terrorist crimes after their release. I believe the promiscuous use of Article 8 of the ECHR – which guarantees a right to family life – risks placing the whole concept of human rights into disrepute.

The case of Siraj Yassin Abdullah Ali – the Eritrean-born terrorist convicted of involvement with the London bomb plot of July 21, 2005, but now free and living in London – is a striking illustration of the problem.

There are at least eight others, similarly freed from jail and now living among us.

The monitoring of such foreign offenders presents a real challenge to the authorities, a challenge too easily overlooked by politicians working to an agenda of removing existing controls and dismissive of evidence that does not suit their Election manifesto commitments.

Even my own party, the Liberal Democrats, must temper its instinctive opposition to anything that may affect the liberties of a few individuals and pay greater attention to the interests of the many.

Yet the ECHR, while protecting foreign terrorists, has failed to protect Gary McKinnon, the alleged computer hacker who lost his appeal against his extradition, despite the fact that if he goes to the US he will be forced by the inequalities of the American prosecution system to agree to a plea-bargain of a kind that British courts would find oppressive.

However, where I do disagree with Mrs May is in her suggestion that the Human Rights Act must be scrapped. It is not necessary and, in any event, too difficult a commitment to deliver. What is needed is not scrapping but fundamental reform.

Make a stand: It's time Cameron and Clegg stood up to the EU on human rights errors

The time has arrived for the ECHR to be brought into the 21st Century and made fit for another 60 years.

David Cameron should be leading the call at the Council of Europe for that modernisation. Part of the reform should be to increase what is referred to as the ‘margin of appreciation’ – which allows individual countries, while subject to the ECHR, a much greater degree of autonomy in interpreting their own national interest proportionately to the threats they face.

The independently, expertly set terrorism threat level in Britain is ‘substantial’. That means the threat of a terrorist attack remains a strong possibility. The threat levels in other countries may be less or more. Each should be allowed to  graduate their deportation laws to their threat level, subject to proportionate protection against torture.

In addition, Mr Cameron and Nick Clegg’s decision to set up a commission to examine the creation of a British Bill of Rights is a sensible idea. I hope and trust that the commission will see it as its responsibility to produce such a bill. It should develop existing rights in today’s context, using the ‘margin of appreciation’ to the full.

Cameron and Clegg should make it clear nothing less will do than realigning rights towards a higher level of British autonomy.

Injustices will continue to fail the public by allowing foreign terrorists on the streets 

Only rare and exceptional cases should go from the UK, where we now have a Supreme Court, to the European Court of Human Rights – which in any event is clogged up with delayed cases from countries with much more questionable human rights records than us, such as Russia and Turkey.

There are some very good judges in the European Court of Human Rights. However, others are of a much poorer quality and in my view British courts, not Strasbourg, are the right place for almost all British human rights cases to be heard.

The Human Rights Commission have been asked to look into all this and their report will engender a prolonged debate. That will push any fresh legislation beyond the next Election in 2015. The problem is that it can be sent into the long grass. This is wholly unacceptable and must not be allowed to happen.

It will not satisfy the British people, who see terrorists walking the streets. It should not satisfy Parliament. This is a political problem and it must have an early political solution.

Otherwise, it is inevitable that injustices will continue to fail the public by allowing foreign terrorists on the streets and sending Gary McKinnon to jail in the US.

via dailymail.co.uk