Human Rights Gone Mad

I read this comment piece by Dominic Rabb, MP which appeared in The Times a week or two ago.

Despite the fact that I don't share his general poltical outlook - I think Dominic Rabb makes a fair point about the European Court of Human Rights.

The Strasbourg court decided that Abu Qatada faces a potential risk - of evidence previously obtained by torture being used against him if he is sent back to Jordan - where he faces trial on charges of being a terrorist.

But the risk is a potential one, perhaps negligible, since the UK Government seems to have done all it reasonably can - or so it would seem - in obtaining assurances from the Jordanian Government that such a situation will not arise if Qatada is sent back to Jordan to stand trial.

Now quite how the court has assessed and quantified the risk to Qatada is unclear - because Jordan has agreed not to use any torture-based evidence in a future trial - yet this was still not enough and no one seems to know what would be enough - to satisfy the judges in Strasbourg.

To my mind the whole business is making a mockery of the Human Rights Act - which I strongly support, by the way.

Because the potential risk that Abu Qatada presents by remaining in this country is simply ignored - despite being characterised as a truly dangerous individual - while another potential risk associated with his deportation to Jordan is elevated into an all-powerful trump card. 

Now if you ask me - this is human rights gone mad.

Abu Qatada is still here because our leaders rolled over

By Dominic Raab

We’re stuck with Abu Qatada because the Government let Strasbourg’s whims trump our law

Yesterday the Court of Appeal upheld Abu Qatada’s appeal against deportation. A cacophony of blame will be directed at judges and at Europe. The truth is that since 2005 successive governments have lacked the will to get rid of this odious man.

The extremist Islamist preacher is wanted in Jordan, where he was convicted in absentia on terrorism charges in 1998. I don’t like trial in absentia, but many democratic countries — such as France — conduct them and we deport suspects there without blinking. Abu Qatada was branded “a truly dangerous individual” by the UK courts, which found he “was at the centre in the United Kingdom of terrorist activities associated with al-Qaeda”. Add in Abu Qatada’s religious ruling that it is legitimate to kill the wives and children of apostates and the case for deportation is manifestly in the public interest.

If Abu Qatada risked torture I would not call for his being returned to Jordan. Britain should uphold its prohibition on torture; it is the hallmark of a civilised society. But the claim that he faced torture was rejected by both the UK courts and the European Court of Human Rights in Strasbourg. So what is this case really about?

Abu Qatada claimed he would not get a fair retrial in Jordan because witness testimony against him might be tainted by torture. In 2009 the UK law lords definitively rejected the claim that he would not face a fair trial. But the Strasbourg court allowed it on appeal. It had never before, since its foundation in 1959, wielded the “right to a fair trial” as grounds to block deportation. With that novel ruling the judges were unabashedly stretching, not applying, human rights law. If allowed to stand it would create enormous scope for foreign criminals and terrorist suspects to frustrate deportation by arguing that the justice systems at home don’t meet European standards.

Faced with a constitutional clash between the UK and Strasbourg courts, what options did we have? Under the Human Rights Act our courts and Government have a duty to “take into account” Strasbourg rulings. But, as the President of the Supreme Court and the Lord Chief Justice have stated, ultimately Britain’s elected lawmakers retain the last word. So the Home Office should have revived its deportation order and made a virtue of rejecting the Strasbourg ruling as a usurpation of British democratic authority. Our courts would have been unlikely to halt the deportation.

Instead the Government rolled over. Theresa May, the Home Secretary, disclosed last December that “a decision was taken to adopt the test laid down ... by the Strasbourg court” because otherwise “it would be open to Abu Qatada to go back to Strasbourg”. That’s why his deportation was lost in the Court of Appeal yesterday.

Home Office officials bewitched ministers with a dazzling array of bureaucratic and legal excuses, shrouding the real political choice. Sure, Abu Qatada could have tried his luck with another appeal to Strasbourg. Yet Strasbourg’s rulings aren’t directly enforceable in the UK courts. Nor is there any risk of Britain being kicked out of the Council of Europe, which recently declared that in immigration cases Strasbourg should “avoid intervening except in the most exceptional circumstances”.

Officials then convinced ministers that they must follow any “Rule 39” indications from Strasbourg: requests that the Government suspend its actions while the European judges consider a case. Such “indications” were merely advisory until 2005 when — in another capricious power grab — Strasbourg simply asserted that they are binding. That has no basis in the European Convention on Human Rights either and contradicted Strasbourg’s own case law. Fortunately it also has no basis in UK law — so the UK courts would not enforce a Rule 39 indication.

The last gasp of the human rights fanatics is to claim that deporting Abu Qatada breaches the ministerial code of conduct, which requires respect for international law. Yet, the code was never intended to trump the constitutional safeguards that protect Britain’s democratic authority from Strasbourg’s meddling. As the ultimate arbiter of the code, the Prime Minister could rebuff such nonsense anyway.

There are respectable arguments against cocking a snook at Strasbourg. It would create a tension with our treaty obligation to implement its rulings. Yet Strasbourg has itself ridden roughshod over the convention and its own mandate. Human rights activists argue that snubbing Strasbourg might weaken our ability to take the high ground with the likes of Vladimir Putin. But why should we sacrifice democracy at home to promote human rights abroad, not least when Mr Putin just sees UK kowtowing to Strasbourg as a sign of weakness? In any event these are policy arguments to be weighed, not strict bars to deportation.

Once you strip away the legal and bureaucratic fig leaves, Abu Qatada is staying in Britain because of a choice. We have allowed the whims of Strasbourg to trump our own moral, judicial and political judgments.

Dominic Raab is MP for Esher & Walton, and a former Foreign Office lawyer