Abu Qatada and the tyranny of human rights

The latest developments in the UK vs Qatada saga shows why the public is right to reject human rights.

Jon Holbrook

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Something good has come from the fact that Abu Qatada came to the UK in 1993 and that in 2005 the then home secretary Charles Clarke tried to deport him to Jordan. Six court rulings later, the idea that human rights could ever become values with popular support is dead.

Human rights give the judges who interpret them considerable freedom to regulate different aspects of society. With Abu Qatada they have found a way to regulate how nation states relate to one another. This used to be the preserve of politicians and diplomats but in recent years the judiciary has muscled in. Whereas most laws clearly specify what is or is not allowed, human-rights laws are concerned with lofty sounding principles that different judges interpret differently at different times. So although the European Convention on Human Rights has been in force since 1953, it was never used to block the deportation of a foreign national to the country of his nationality until Abu Qatada decided to give it a go.

Qatada was convicted in absentia of conspiracy to cause explosions. But fortunately for him, the convictions were secured in a country, Jordan,with a dodgy record on human rights. There is some evidence to show that two of Qatada’s co-accused gave evidence against him that was extracted by torture. And this, says the European Court of Human Rights (ECHR), means that he should not be deported to Jordan. It reached this conclusion not out of a fear that Qatada would be subjected to torture, or indeed that anyone else would be subjected to torture, but because of the real risk at any retrial that evidence previously obtained by torture would be used again.

The ECHR considers the Convention to be a ‘living instrument’ which is judicial code for allowing the ECHR to interpret it in an ever expansive direction. Article six states that ‘in the determination of … any criminal charge against him, everyone is entitled to a fair […] hearing’. ‘Fairness’ is the sort of subjective concept that a hundred lawyers could readily interpret in a hundred different ways. And a hundred is about the number of lawyers (solicitors, barristers and judges) who have been involved in the Qatada cases that have so far resulted in six judicial decisions over seven years.

In 2007, the Special Immigration Appeals Commission (SIAC) decided that then home secretary Jacqui Smith was entitled to deport Qatada to Jordan. In 2008 three UK Court of Appeal judges decided that she couldn’t. In 2009 five House of Lords judges decided that she could. In 2012 seven judges of the ECHR decided that current home secretary Theresa May couldn’t. Later last year the circus started again, but this time SIAC took heed of the ECHR decision, changed its mind and decided that the home secretary could not deport Qatada. Last week three Court of Appeal judges upheld this decision. Despite the government instructing three Queen’s counsel and one other barrister, the Court of Appeal was unimpressed. The government intends to seek permission to appeal to the UK Supreme Court in the hope that it will be a case of first, third and seventh time lucky.

If there had been a clear principle of fundamental importance to justice at stake in the Qatada hearings, then a court would have been able to readily seize it and state it. But the Qatada case raises no principles of fundamental importance and that is evident from the oscillating conclusions that eminent judges have reached as well as the prolix nature of the judgments given. It took the House of Lords 267 paragraphs to explain why Qatada’s deportation would involve no breach of human rights. Not to be outdone, it took the ECHR 291 paragraphs to explain why Qatada’s deportation would breach his human rights. If in 1215 the drafters of Magna Carta had adopted modern-day approaches to fundamental rights they would still be arguing over the first clause.

The principle that article 6 has morphed into under the hand of the ECHR has struck no blow for liberty. Far from being a triumph for liberty, the requirement that states should consider and deal with the risk of an unfair trial overseas is one that requires European states to police the criminal justice systems of any state to which it seeks to deport or extradite an individual.

May and her civil servants have made several trips to Jordan to seek guarantees over the way Qatada would be tried on his return. The ECHR noted how the Adaleh Centre, a non-governmental organisation that had received £775,000 from the UK Government, would be expected to monitor the implementation of a memorandum of understanding between Jordan and the United Kingdom. This memorandum may not be worth the paper it was written on, but its very existence is an affront to a sovereign state.

European states may be the ones giving the lessons in human rights to the uneducated nations of the world, as the ECHR sees them, but the outcome of the Qatada rulings has also challenged the sovereignty of European nations. As conservative MP Philip Davies observed: ‘Does the home secretary not accept that the British government is now in a rather pathetic, humiliating situation?’ The British government may be giving human-rights lessons abroad, but they are not satisfying the board of governors who sit in Strasbourg.

Torture is abhorrent, but its outlawing is not a policy objective that should be used to trump all other values. Where it sits in the policy objectives of different nations is a matter best decided by nation states. The ECHR, with its myopic reading of the European Convention, may not be able to see the importance of diplomacy, democracy and sovereignty as practised between nation states. But then that is why courts should never be empowered to determine the policy objectives of nation states. The best way to strike a blow for liberty would be to champion a principle that is easy to state: democracy. Take power away from the judges who seek to lord it over the peoples of Europe and overseas and give it back to sovereign states. After six court hearings and judgments written on reams of paper, it is clear that the ECHR should be deported to a judocracy, if one could be found, which I doubt.

MPs like former home secretary, John Reid, have responded to the Qatada affair by expressing concern that it is tarnishing the nature of human rights. He’s wrong: the Qatada affair is exposing the true nature of human rights and that will be so whether or not Qatada wins his next legal case.

Jon Holbrook is a barrister in London.

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