The issue of how to deal with suspected terrorists who weren't charged but can't be deported because they'd face persecution has become a political football for the new coalition government in Britain. Conservatives wanted to repeal the law that has become the basis for letting such suspects stay in Britain, but the party's plans are on hold since it failed to win a majority in the general election and now must concede to the Liberal Democrats.
In April 2009, 10 young Pakistani men were arrested on suspicion of plotting a bombing in Britain. In the end, because of lack of evidence, the men were never charged. Eight of them returned to Pakistan voluntarily. Two of them remained in Britain, and the government tried to deport them. But last week, the deportation ruling was overturned. The legal basis for allowing them to stay is the British Human Rights Act, a law brought in 1998 that incorporates the European Convention on Human Rights into British law. It says no one can be returned to a country where he or she might be tortured.
The case has caused an uproar in Britain, not least within the Conservative Party. The Conservatives are committed to replacing the Human Rights Act with a British Bill of Rights that senior Conservative MP Bill Cash says would take British control back from the European Court in Strasbourg, France.
"We've just seen a very important case relating to extradition of people who one would have thought would not be able to be protected by the Human Rights Act," he says. "The problem is that the laws there are determined in Strasbourg. Even recently, Lord Hoffman, a former law lord, said with regard to the European Court, it has been unable to resist the temptation to aggrandize its jurisdiction. It considers itself the equivalent of the Supreme Court of the United States, laying down the federal law of Europe."
And that's something that the Conservatives, notoriously hostile to being part of Europe, simply don't want to see. For them, British law is British law. But the Conservative Party failed to win a majority in the election earlier this month and had to ally itself with the very pro-Europe Liberal Democrats to form a government — and the Conservatives have had to make a huge concession to the Liberal Democrats, putting off their plans to repeal the Human Rights Act.
"We are prepared to look at the case that the Conservatives have put forward in the general election, but we mustn't reduce the safeguards to the citizen," says Norman Lamb, chief adviser to Liberal Democrat leader Nick Clegg. "The Convention is there to protect the citizen against the overbearing power of the state."
Though many say this case is an abuse of those protections, John Curtice of Strathclyde University says a lot of the Conservative attempt to create a Bill of Rights for Britain is simply nationalistic grandstanding that won't make a difference in law.
"If indeed the Conservatives were to repeal the Human Rights Act and replace it by a British human rights bill, that would not stop the right of U.K. citizens to be able to go to Strasbourg to say, 'My human rights are being overwritten,' " says Curtice, a politics professor. "That would simply mean that U.K. courts could no longer enforce the European Convention through the U.K. court processes, but the truth is, at the end of day, the U.K. would still find itself with the same international obligations."
Meanwhile, the two Pakistani men remain in Britain, uncharged but unable to be deported, and now the government must work out how to deal with them.