There is a fairly straight forward reason why some government ministers, particularly in the Home Office, have animosity towards the Human Rights Act. It does indeed make it more difficult to deport foreign criminals and illegal aliens in some circumstances. These circumstances include those in which the deportation of the individual would be very likely to result in torture or loss of life. It should be pointed out however that there are other laws which reflect our obligations under various other treaties and conventions and which could prevent deportations under similar circumstances and for similar reasons.
The disparaging of the Human Rights Act by cabinet ministers is certainly nothing new and is not confined to conservatives. The Human Rights Act was enacted in 1998 by a fairly new Labour government eager for constitutional reform. Yet just ten years later in 2008, then Labour Justice Secretary Jack Straw expressed his distaste for the Act, describing it as a "villain's charter". This is of course rather interesting given that Jack Straw actually introduced the Act and was its chief architect when he was serving the government as Home Secretary. It is once again the issue of foreign deportation that is the cause for concern (emphasis mine):
He blamed "nervous" judges for refusing to accept assurances from ministers that such removals were in the national interest.
"I fully understand that [Daily Mail readers] have concerns about the Human Rights Act," he said. "There is a sense that it's a villains' charter or that it stops terrorists being deported or criminals being properly given publicity. I am greatly frustrated by this. Not by the concerns, but by some very few judgments that have thrown up these problems."
Well I for one am very glad to live in a country where the government doesn't always get its way in the courts. This is a sign that things are as they should be. The concerns of government are very different from the concerns of the judiciary. Parliament provides the legislation for judges to apply, and judges apply that on a case-by-case basis using their skill and experience and taking many, many factors into account. The Home Office might feel that the deportation of a person is in the best national interest and give such assurances; however, it is incredibly insulting to the judicial profession to characterise the refusal to accept such assurances as nervousness. Oh and Jack, I think you meant to say "terror suspects" and "suspected criminals". Don't get me started on Jack Straw.
It is not the Human Rights Act that is to blame for the failure to deport terror suspects, but rather the cult of secrecy that prevents terror suspects from being tried openly in the UK. In order to try a criminal suspect in the United Kingdom, evidence must be presented and added to the public record. In some instances it is felt that the evidence is too sensitive to share with the public; often it is the manner in which the evidence was obtained that is the issue. The evidence may have been obtained through covert means that the government does not wish to compromise. Perhaps some evidence was obtained through enhanced interrogation techniques which are not strictly legal. This paper examines the Special Immigration Appeals Act 1997 and its compatibility with European Law. I note the following:
This system [special advocates] is designed to stop material that is sensitive for national security reasons from entering the public domain. The Government argues that it protects the methods of the security services by preventing the discovery of intercepts and undercover operatives, as well as protecting intelligence-sharing relationships with other international intelligence services.Now, special advocates (security-cleared barristers who do not share sensitive information with their clients) are perhaps acceptable in cases of deportation. They would not be acceptable however in criminal trials because of Article 6 (right to a fair trial). Deportation is hence the easy option for the government. But perhaps the national security concerns are unfounded after all. Perhaps the methods of the security services are in fact already well known to our enemies. It is difficult for the public to gauge the necessity for such secrecy when the information is by its very nature secret. Whatever the case may be, it is clearly not the sole fault of human rights legislation that we are often unable to satisfactorily process terror suspects.
To conclude this posting, I'd like to return to the present day and the attitudes of the current government toward the Human Rights Act. One of the most ridiculous things I've seen recently on this subject was an interview that David Cameron gave to the Andrew Marr show at the start of the Conservative Party Conference in which he restated his agreement with Theresa May that the Human Rights Act should be scrapped and replaced with a Bill of Rights (which comes as no surprise really as he campaigned on it and wouldn't have had the leadership without it). His justification for this position is just laughable:
He also said he wanted to change the “chilling culture” created by the act. He cited an example of a prison van being driven nearly 100 miles to be used to transport a prisoner 200 yards “when he was perfectly happy to walk”. “The Human Rights Act doesn’t say that’s what you have to do. It’s the sort of chilling effect of people thinking ‘I will be found guilty under it’.The Human Rights Act doesn't actually say that's what you have to do, but what the hell? People are confused about it so let's scrap it. Does confusion about what the Act provides suggest a problem with the Act itself? Why are people so confused about the Human Rights Act? Mr Cameron, please read Part II. Thank you. That Angry Mob article I link to above goes on to explain the real reasons why a prison van had to be driven 100 miles to transport a prisoner 200 yards. It turns out to be, and I am not making this up, due to the contractual obligations with a private transportation company. That's Tories for you.