The Conservatives don’t like the Human Rights Act; the Liberal Democrats like it. Now they are in coalition, and have somehow formulated a position on control orders. Extradition is much more difficult, from the point of view of the legislature. The law of extradition from England and Wales was made less complex by the Extradition Act  which was a response to the raised terrorist threat in Europe. Extradition was made much easier.
The judiciary provides relative certainty in this world of uncertainty. The decision by the European Court of Human Rights to block the extradition of Abu Hamza, the radical Muslim cleric, to America to stand trial on alleged terrorist offences poses a challenge to the Coalition government. The Conservatives promised to repeal the Human Rights Act – but that would make no difference because the European Convention on Human Rights would still apply to British law and it is on this that the Strasbourg court relies for its judgments.
It is an absolute prohibition for a signatory to the ECHR to remove anyone to a place where they would be subject to inhumane or degrading treatment. Article 3 of the European Convention on Human Rights prohibits “inhuman or degrading punishment”. The article has a long history, expressly evoking the 1688 Bill of Rights, which prohibits “cruell and unusuall punishments”. Unlike other rights, Article 3 is unqualified, which means that a State is not permitted to justify a breach on any grounds. It is now uncontroversial (in the courts, at least) that to return a person to a country where there is a real risk that they will be in danger or torture, loss of life or inhuman or degrading treatment would breach Article 3. Therefore, the courts have no choice but to prevent any extradition or deportation which would put a person at serious risk.
Gary McKinnon has been accused of hacking to various U.S. computers. Gary McKinnon’s legal battle has included a number of appeals to the Administrative Division of the High Court. In July 2009, Lord Justice Burnton rejected his claim that, due to his mental condition, his detention would involve inhuman or degrading treatment or punishment which would, if committed in this country, infringe Article 3. The judge held that the bar for inhuman and degrading treatment had been set high in previous cases, and stated that McKinnon also claimed under Article 8, the right to private and family life, but this was also rejected, as his extradition was found to be a lawful and proportionate response to his alleged offending. Unlike Article 3, Article 8 is a qualified right, which means that it can be overrided if there is a strong public interest in doing so.
The case has now been adjourned by the Home Secretary so she can consider the medical evidence afresh. Geoffrey Robertson QC calls this a test case for principles and suggests that the Home Secretary’s “main difficulty will be to override her Home Office advisers who have for years fought an unremitting, expensive and merciless battle against this poor man and his indomitable mother” However, the legislature – or rather an important part of it – has meant this story has taken, for the time-being, a turn for the worse. Nick Clegg, last week, said it would be ‘better all round’ for the two not to discuss the details of the case, which has now been grinding on for seven years. The Americans are demanding the extradition of Gary, 45, despite medical experts warning he will kill himself if sent to the U.S. for trial. Mr Clegg had been implacable in his support for Gary in opposition. He stood by Mrs Sharp’s side at a demonstration outside the Home Office in December 2009.
What we do not have is clarity on the future of the Human Rights Act. Mr Ken Clarke, the Justice Secretary, said Britain would seek to kick-start reform of the European Convention on Human Rights (ECHR) and the European Court on Human Rights when it takes up a key role in Europe later this year. However, Lord Justice Woolf has signalled there is very little chance of anything changing because it would mean persuading 47 countries who are all signed up to the Convention. The Prime Minister has announced a commission to examine the creation of a British Bill of Rights and the country’s relationship with the European court. Lord Woolf, who was the country’s most senior judge between 2000 and 2005, said a Bill of Rights would also cause conflict between the two.
The upshot for David Cameron and Nick Clegg – talk is cheap, when the future of human rights in individual people are at stake.