Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.
‘Human Rights Act to blame!’ is a frequent refrain in the media, as well reported on this blog. Often, though, the outcome that has attracted media ire is not one that has much to do with the Human Rights Act at all. The decision to release Abu Qatada on bail is one such example.
The decision of the European Court of Human Rights that Abu Qatada cannot, for now, be deported to Jordan because of the risk of a trial using evidence obtained by torture has nothing to do with the Human Rights Act. Unless the UK were to withdraw entirely from the European Convention on Human Rights, that decision would always have been reached with or without our own Human Rights Act.
The decision that he must now be released on bail after over six and a half years detention without trial and with no real prospect of his future removal from the United Kingdom is very much based on our own home-grown laws and traditions. It is certainly not due to the Human Rights Act.
After all, indefinite detention is not something one would normally associate with the British. The attorney general, Dominic Grieve, said on Tuesday morning in response to the Abu Qatada bail decision that the UK does not have “indefinite internment without trial”. Unfortunately, he is wrong. The word ‘indefinite’ means without fixed limit, not definite or until further notice. An increasing number of foreign nationals are in fact detained indefinitely.
For centuries we have proudly defined ourselves as different to the Other of the absolute monarchies of the ancien regime and the communist and fascist ideologies that infected the twentieth century in so many parts of the world. Orwell’s 1984 and the works of Kafka make us glad to be British, safe from such horrors.
Smug this may be, but also largely justified.
The great English charter of liberty, Magna Carta, sets out the right to freedom from arbitrary detention:
‘No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.’
Liberty was also a theme to the seminal Bill of Rights of 1689, where Parliament complained of excessive bail in criminal cases being used ‘to elude the Benefitt of the Lawes made for the Liberty of the Subjects’, illegal prosecutions and illegal and cruel punishments being inflicted.
We pride ourselves on being the birthplace of habeas corpus, an ancient legal protection against detention without trial. The words mean literally ‘you may have the body’ and an application requires the custodian of the named person to produce that person in court and account for why he or she is detained.
These freedoms were hard-won. Maintaining them is also hard, though, and many will not realise that it is a constant unseen battle against encroachment to do so. The rule of law is by its nature universal or it is nothing, and unpopular minorities are always the first to feel the hand on their shoulder: Jews, gays, the Irish, travellers and Gypsies and now immigrants.
It may surprise some that the writ of habeas corpus is alive and kicking. Once used as protection by noblemen against a tyrannical monarchy, today it is used on behalf of foreign nationals to require the Crown to account for imprisonment without end. This is the situation in which a growing number of foreign nationals find themselves, some of them desperate to leave but prevented from doing so by the international bureaucracy of borders.
Back in 1983, before we had all become so habituated to detention without end, Mr Justice Woolf (as he was then) held in Hardial Singh, one of the first modern uses of the writ of habeas corpus, that a period of five months of immigration detention was unjustified. Today, five months is sometimes considered too short a period to bother to challenge. The small charity Bail for Immigration Detainees reports that the number of long term immigration detainees is constantly growing. A recent inspection report showed that over 25% of foreign national prisoners have now been detained under immigration powers for over a year, with the average length of detention increasing to over six months. The latest Home Office statistics showed that 36 individuals had been detained under immigration powers for two years or longer.
It is impossible to imagine what it must be like stuck to be in a detention centre with no idea of when, if ever, you will be allowed out. Self harm and mental illness are rife, unsurprisingly.
Immigration law is something of a niche area. We immigration lawyers keep ourselves to ourselves and try to avoid adverse publicity for our clients. Sometimes, though, this low key approach may do the rest of the legal system a disservice. Infringements on liberty are in modern times usually tried first on foreigners, from secret evidence in secret trials to ID cards to indefinite detention. It is wise to heed Niemoller’s famous warning:
‘Then they came for me and there was no one left to speak out for me.’
None of the British legal tradition of liberty derives from the Human Rights Act, nor from the European Convention on Human Rights. This is, hopefully, a reminder that the label ‘human rights’ is really just a rebranding of the freedoms and liberties of which we are justifiably proud, but which are in constant danger of compromise and surrender.
This guest post is by Colin Yeo of Renaissance Chambers, editor of the Free Movement blog
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