The Qatada case is yet another reason for some to demand that the Human Rights Act 1998 be abolished and the UK withdraw from the Council of Europe and the European Court of Human Rights. But why is it so difficult for ECHR critics to understand that in a country governed by (and priding itself upon) the rule of law, law must be equally applied to all? Perhaps it is precisely because we have an impartial, independent and competent judiciary that it is so difficult to truly empathise with those who live in country governed by power not law. Or maybe it is because defeated Nazi totalitarianism (to which the Charter of the United Nations, the Universal Declaration of Human Rights as well as the ECHR were drafted as a bulwark to future similar extremism) is such a distant memory.
Qatada’s case in the UK has been running for ten years. For the vast majority of that time he has been in detention in the UK, without either trial or charge – albeit awaiting deportation to Jordan for a re-trial on charges for which he has already been convicted and sentenced in his absence relating to serious terrorist activity.
The SIAC Tribunal decision of 12 November (available here), adjudicated three issues.
Firstly, that sufficient guarantees (in the form of diplomatic assurances from the Jordanian government to the UK) had been provided that Qatada himself would be protected against the risk of ill-treatment by or at the behest of Jordanian state agents.
Secondly, the Tribunal rejected the argument that in the event Qatada was acquitted after his re-trial there was a real risk that Jordan would invoke an old 1954 law to nevertheless secure his administrative detention in breach of his Article 5 ECHR right to liberty.
Thirdly, however, the Tribunal concluded that the Home Secretary had failed to satisfy them that in relation to Qatada’s Jordanian re-trial there was no real risk that statements from two alleged accomplices no longer subject to criminal proceedings might be used against him – the context being that there was a real risk these statements had been obtained using torture.
As a result, the SIAC Tribunal found that the Home Secretary should have exercised her discretion differently and should not have declined to revoke the deportation order.
The central aspect of this case relates to the UK’s treaty obligations – both under the European Convention on Human Rights and the United Nations Convention Against Torture. It would be a violation of the right to a fair trial under Article 6 of the ECHR for evidence obtained through torture to be used against Qatada. It would also be a violation of the prohibition on complicity in torture under Article 4 of the Torture Convention for the UK to deport Qatada to Jordan if a ‘real risk’ of torture exists there, including where there is a ‘real risk’ that third parties were tortured into making statements that would be used against Qatada.
Taking a step back for one moment and returning to fundamental principles, the necessity of a fair trial is almost too obvious to be re-stated: without due process, there can be no confidence in the criminal justice system. Without such confidence, we descend to the depths of a police state or to anarchy.
Similarly self-evident is the global prohibition on torture, to protect ‘the inherent dignity of the human person’ (in the words of the Torture Convention) against physical or mental abuse inflicted by or with the instigation, consent or acquiescence of an official. Deporting someone to a country where there is a real risk that torture will be used on or against the interests of someone would undermine the whole basis of this prohibition.
However unpleasant Qatada’s associations may be, however extremist (but not criminally so, otherwise presumably he would have been tried for this in the UK) his speeches, he is entitled to the same protections from British courts as anyone else. On what basis are we to conclude otherwise: that he is foreign? That his views are offensive to us? That he has been convicted in his absence for terrorist charges? And if we are to start making exceptions to our treaty obligations for Abu Qatada, who else might be next?
I have lived and worked in countries where power rules over law. I have personally witnessed an incident where a rich man co-opted the police to use brutality against a poor man, later to be misreported in a government-run newspaper. I have seen at first hand judges who are incompetent, clearly partial and certainly not independent. And I have read with my own eyes confessions extracted under torture that sent their unfortunate deponents to their deaths. I do not want to live in a country where any of this is a remote possibility, let alone a reality.
David Cameron declared himself ‘completely fed up’ at the ‘extremely frustrating’ fact that Qatada remains in the UK despite claiming to have ‘moved heaven and earth to try and comply with every single dot and comma with every single Convention’ in order to ‘get him out of our country.’ Many of Cameron’s backbenchers have been even more directly critical of the ECHR. For otherwise rational (presumably) and highly qualified professionals serving as Members of Parliament to fail to grasp one of the most fundamental principles in a democracy – that the law should be applied equally to all – suggests a third reason for the reaction to the Qatada case and others: populism. But it is irresponsible of politicians to fail to explain to the population the principles of why the rule of law matter and why the executive cannot order the judiciary to reach a particular judgment.
Claims for the Human Rights Act to be scrapped are dangerous, misguided and inimical to the principles of equality and the rule of law described in all the major human rights treaties. Politicians and commentators have an obligation to reiterate the critical importance of human rights protection within our country – particularly in the realm of criminal justice. It should never be considered a wasted breath to reiterate the paramount considerations of the right to a fair trial and the universal prohibition on torture. It is worth reminding people of the freedoms for which the Second World War were fought, and the perils of failing to scrupulously uphold the rule of law, regardless of the distaste widely held for Abu Qatada.