Abu Qatada is gone—but the debate is far from over


Senior Ministers are queuing up today to congratulate not only Andy Murray on his Wimbledon victory, but also the Home Secretary, Theresa May, on yesterday’s deportation of Abu Qatada, or “Public Enemy Number One” as the BBC’s Dominic Casciani has dubbed him. We know now that as well as feeling “physically sick” at the prospect implementing a judgment requiring prisoners to be allowed to vote, the ongoing presence of Abu Qatada in the UK made David Cameron’s “blood boil”. Meanwhile, the Home Secretary herself had this to say:

I am glad that this government’s determination to see [Abu Qatada] on a plane has been vindicated and that we have at last achieved what previous governments, Parliament and the British public have long called for. This dangerous man has now been removed from our shores to face the courts in his own country.

I am also clear that we need to make sense of our human rights laws and remove the many layers of appeals available to foreign nationals we want to deport. We are taking steps—including through the new Immigration Bill—to put this right.

The Immigration Bill to which Theresa May referred in her statement has not yet been published, but according to the 2013 Queen’s speech:

The Bill would contain provisions to give the full force of legislation to the policy we have already adopted in the Immigration Rules. The courts would therefore be required to properly reflect the balance given to the public interest when ruling on immigration cases.

The part of the Immigration Rules in question proved, unsurprisingly, to be a damp squib: the courts’ duty under the Human Rights Act 1998 to decide cases in accordance with the ECHR cannot be displaced by instructions in secondary legislation that might require them to do otherwise. Commenting earlier this year on the proposal to the elevate those instructions by inserting them into primary legislation, I suggested that this would likely achieve very little: even if UK courts were, through primary legislation, precluded from giving full effect to the ECHR, the Strasbourg Court would not shrink from doing so. The likelihood, therefore, is that the Immigration Bill will simply pave the way for a new confrontation with the European Court of Human Rights.

The deportation of Abu Qatada is not therefore the end of this story. By enshrining  in a treaty assurances from Jordan about how Abu Qatada would be treated on his return, the UK government (perhaps) found a way of reconciling his deportation with its obligations under the ECHR. (“Perhaps” because this matter has not been tested in court: Abu Qatada eventually agreed to return to Jordan upon conclusion of the treaty.) But the broader difficulty remains, in that the ECHR constrains—to what some at the top of government clearly consider to be an unacceptable degree—the administration’s freedom to determine certain immigration (and doubtless certain other) matters.

The Justice Secretary and Lord Chancellor, Chris Grayling, recognizes this. Today’s Telegraph reports that in a BBC interview yesterday:

Mr Grayling said: “A future Conservative Government with a majority will make wholesale changes to human rights laws.” Asked if Britain could leave the European Convention on Human Rights, Mr Grayling said: “Yes it does [sic]. We have been very clear we are currently doing detailed work on options. I have personal responsibility for human rights issues we are currently looking at what the options are.”

The Home Secretary also placed the UK’s relationship with the ECHR on the table in an interview on the BBC yesterday. If they are serious about this, then some hard questions will have to be confronted. In particular, the sceptics will need to be clear about precisely what it is they are objecting to. Is it to the specific jurisprudence in the area involved in the Abu Qatada case—i.e. the balance that the Strasbourg Court has deemed appropriate between (on the one hand) the right to a fair trial and the implications of the prohibition on torture and other forms of ill-treatment and (on the other hand) the capacity of the state to expel individuals in the public interest? Or is the sceptics’ unhappiness a broader one that dervies from displeasure at the spectacle of a European court restricting the freedom of action of the UK government? Or is it that the European Court’s role is acceptable in principle, but that it is considered to have overreached itself in terms of its interpretation and application of the Convention – either in this particular context or more generally? Or perhaps the objection goes deeper still, and is a reaction against the interference by judges (British or European) in a sensitive area of policy?

One of the reasons why the Abu Qatada case became a cause célèbre is that it was capable of acting as a focal point for any and all of these objections to the “human rights system”. But if—as seems increasingly likely—Conservative (and some other) politicians are determined to contemplate radical steps in this area, they will need to nail their colours to the mast in a clearer way than they have so far done. Would, for example, such politicians be happy to fall into line with courts’ human rights judgments provided that they were UK judges’ decisions given pursuant to a UK Bill of Rights? And what if that Bill of Rights were merely—as the Commission on a Bill of Rights advocated, to the extent that it clearly advocated anything—a repackaging of extant obligations under the ECHR?

The likelihood is that those who have been vociferous about the Abu Qatada case and the issues it raises would not uniformly answer questions of this nature. We find, then, that the noise surrounding the Abu Qatada case reflects a coalition of views that has formed around the nebulous case for  “rethinking our relationship” with the ECHR and adopting a “British Bill of Rights” that would supplement/trump/replace the HRA/ECHR (delete as appropriate). But underlying the Abu Qatada case are some very deep questions indeed: questions that engage both the UK’s commitment to its international human rights obligations, and the ways in and the extent to which politicians’ freedom to pursue their own conception of the public good should be constrained by the legal rights of individuals enforceable by courts of law.

It is time for an open debate, in which sceptics are forced clearly to articulate their arguments against the existing interconnected domestic and European systems for upholding human rights—and in which those who defend those systems are required to do so with equal clarity. One of the perverse virtues of the lamentable report of the Commission on a Bill of Rights is that it demonstrated the futility of attempting to discuss the future of human rights protection in the UK without confronting the deeper issues. It is highly unlikely that the Immigration Bill trailed in the Home Secretary’s remarks yesterday will solve the perceived problems raised by the Abu Qatada case. It may well be, however, that such legislation will force the showdown that all sides ought now to welcome. To put the matter another way: the temperature of the Prime Minister’s blood may now have returned to normal, but the precise cause of his underlying nausea remains to be identified and addressed.

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