Abu Qatada: in the public interest

You may have heard that the Special Immigration Appeals Commission (SIAC) decided on Tuesday that Abu Qatada, an alleged terrorist who has been detained for the best part of the last seven years awaiting deportation to his native Jordan, cannot be deported. There would be a real risk, ruled SIAC, that he would face a flagrant denial of justice in his ensuing trial.

Jim Duffy has already commented on the case here, but I thought it would be useful to look at some of the commentary which followed the decision. A bit like the latest Israel-Gaza escalation, controversial human rights decisions now elicit an almost instant (and slightly sad) our-camp-versus-theirs reaction. Following a decision each ‘side’ trundles into action, rolling out the clichés without thinking very hard about the principles. The Prime Minister himself somewhat petulantly said he was “fed up” and “We have moved heaven and earth to try to comply with every single dot and comma of every single convention to get him out of this country.”

It is easy to moan about inaccurate coverage (I often do). But in this case, I do think the strong, almost visceral, reaction to the decision is justified. Leaving aside the slightly mad tabloid anti-Europe or effectively anti-justice coverage, it is understandable that people are uneasy and upset about this decision to keep a suspected terrorist within our borders, and then release him. But that doesn’t mean the decision is wrong.

In reaching my own conclusions about this judgment, I have found a recent thought-provoking speech by Lord Justice Laws helpful. Laws asked whether human rights make bad citizens, and concludes that a rights-based system could be better expressed in terms of duties. This is a common critique, but Laws concentrates not on the duties of individuals, but those of the State. He says:

If the courts exercise a thoroughgoing merits judgment in human rights cases, deciding for themselves whether or not the claim of right should override the public interest, that tells us something of society’s perception of such rights. It would suggest that rights are to be seen as set in opposition to the public interest for which government is responsible, or in competition with it. But I think that the delivery of rights by the State is itself an aspect of the public interest, which it is the State’s duty to secure. In a wholesome polity in which power is held on trust for the people, the public interest has many aspects.

So, rights are “a benefit which it is the State’s duty to deliver, alongside other social goods: defence, health care, education…” He goes on:

The fundamental idea is to perceive rights as inherent in the public interest, and not the public interest’s enemy.

There are obvious problems with Laws’ thesis and the tension between rights and duties is well-trodden in both political theory and the discourse which surrounds human rights law.

However, using the Laws lens to consider Abu Qatada’s case is helpful. If rights are part of the public interest and inherently duties for the state (widely interpreted as the executive, Parliament and the courts) to enforce, then it is possible to understand the logic of the decision, but also the strong reactions it generated.

It must be right that there is a very strong public interest in preventing terrorists going about their evil tasks within our borders. Of course, the best and most obvious way to do so is to investigate their crimes, charge them and then put them in prison. For whatever reason, this hasn’t happened in Abu Qatada’s case (it must be assumed that there isn’t enough evidence against him).

So what do we do next? Abu Qatada didn’t sneak into the country; we granted him asylum in the days before 9/11 when Islamists were not seen as a threat. We now suspect Abu Qatada is a terrorist, or at least an aspirant terrorist. Since he is the native of another country which (unlike us) wants to put him on trial, we should therefore try to deport him. How can this not be in the public interest?

But there is also another aspect of the public interest, and this is where the rights system reenters the picture. On the one hand, we have national security. On the other, due process and the rule of law. All three are vital components of the public interest, and often they conflict.

That conflict is not new, but rather one of the foundational principles of a separation of powers system based on a balance between the rights of individuals and duties of the state. As the American Constitution most clearly reflects, the competing pressures of security and justice will always persist and can only be managed by a robust separation of powers between courts and the Executive. Neither (or perhaps more accurately, both) gets to decide whether justice or security wins out. Each institution plays its role in securing the public interest.

Returning to Abu Qatada, SIAC decided that it would contravene his right to a fair trial to deport him. Following the lead of the European Court of Human Rights, it would be inherently wrong to send him to face trial in a Jordanian court where there would be a real risk of torture evidence being used to convict him.

Put it another way, it would not just be contrary to Abu Qatada’s human rights to deport him, it would be against the public interest. Why? Because courts set precedents. The two currencies of the justice system are particular facts and general principle. In a system of precedent, judgments will most obviously affect the individuals directly involved. But also, more abstractly but just as importantly, judgments affect future similar individuals who will be caught by the point of principle decided by the court.

A decision to deport Abu Qatada, a suspected terrorist, to face an unfair trial would affect not just him but also any other British citizen, innocent or guilty, facing deportation into the arms of an arguably corrupted legal system. In my view, it cannot seriously be said that this issue is trivial or obviously must be overcome by national security. The principle would apply not just to Abu Qatada, but to any number of potential deportees with more sympathetic stories, for example people like Gary McKinnon (although as a British citizen, McKinnon was up for extradition rather than deportation).

Where does this leave the public interest? That really is a hard question. Pick any cliché: the knife’s edge, the delicate balance, the grey area. Judges of the hardest but also the most important human rights cases must pick which side of that balance they prefer. Whichever they decide, a large section of the public may disagree. That is their right, but their upset must not be used as a weapon to undermine the public interest, that is to corrode the protections of the rights system whilst diminishing (quietly, but measurably) the state’s duty of care towards them.

Future judges may also disagree, and overturn. How could it be otherwise? But in that incredibly difficult balance the public interest lies.

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Some useful external coverage

13 thoughts on “Abu Qatada: in the public interest

  1. I am relatively sanguine about this character. Politicians keep muttering darkly about how dangerous he is but he has never been charged in a British court. How can we tell if he represents a threat or not when the UK Government refuses to divulge any information on him? It is pointless reading, viewing or listening to the popular communications media because they know and understand less than most of their consumers. Ultimately, I believe our British judges are gradually developing a body of human rights law which will become the envy of the world for its cohesiveness and comprehensiveness of cover.

  2. I may be wrong here but I thought that Qatada had already been tried & convicted of terrorist charges in Jordan. In which case he is a fugitive from justice, surely, and should be returned to serve his sentence. The talk of ‘torture’ rather clouds the issue; one state’s torture is another state’s persuasive interrogation technique.

  3. I couldnt agree more – as a layperson, the only area in which I think we have cast a rod for our own backs is in not investigating the alleged criminality ourselves. I assume that though a Mutual Legal Assistance Treaty (or some such similar agreement), we could seek sight of the evidence obtained by Jordan and to work with them in finding opportunities to uncover similar evidence, not through torturous means, but sufficient to secure his conviction in the UK. Detention without trial is merely a recruiting sergeant for fundamentalism. 24/hr surveillance is extortionately expensive. But upholding the rule of law is priceless.

  4. Great piece – I fully agree – human rights must apply consistently – really useful quote from Lord Justice Laws which I will keep to use in my PhD research thank you.

  5. Yes, but never forget, the sort of society that Abu Qatada an his ilk aspire to, would never ever give the sort of fair trial that he has been given. This is the inconvenient moral issue that is being ignored here.

    • On that, I fear that you may be right but it does not alter the fact that the UK has an important commitment to securing human rights as defined in the European Convention.

  6. also, John D and Tracy, are you happy that we are paying his rent? How can spending so much money on this man be in the Public Interest? He broke international law when entering the country, are you happy to dismiss that?

  7. that’s the perfect judgement for UK,UK government do need a person who is like Abu.when UK government does the horrible things on others, do they think about what it will bring to others? British kill so many people in IRAQ,including the president,just for getting the cheaper oil,do they get what they made the excuse -the massive destroy weapon for the war?no,Iraq does not have it.British kill so many Pakistani,do they get the freedom for Pakistani? no, they made the country terrible mess,Pakistani live in the more horrible condition now than it was before the war.so UK do need a person who can do some horrible things on them, they deserve it! GOD bless you , Abu!

  8. An interesting, albeit normative view of rights when compared to the more prosaic reality of how such rights tend to be regarded.

    Coverage of human rights placed in the public domain from which we hope to derive an informed and balanced view is, for the most part, managed by the political and commercial entities against whom the vindication of Convention rights operate. Rights are anti-utilitarian. They exist to protect unpopular minorities against a majority which political parties require for survival in office and which tabloids dare not alienate if they wish to maximise circulation and profit.

    In both cases, the vilification machinery of state and media maximises political and financial capital with a rights-based system acting as an obstacle standing in the way of political and financial capital.

    The difficulty is that political reaction to popular opinion is driven by the effectiveness of the tabloid press to manufacture it. One can test this by comparing and contrasting one’s personal opinion of Abu Qatada et al on the one hand, and Gary McKinnon on the other, then asking oneself honestly, who put those feelings there and why?

    The answer goes some way to understanding the two completely different approaches the political establishment has adopted in relation to both men for whom deportation and extradition has become a legal as well as a political issue and the schizophrenic attitude to human rights manifested by the political establishment in general and the Home Secretary in particular. In both cases the government preferred political capital out of deporting a man subjected to public opprobrium while refusing to extradite another who was the beneficiary of public sympathy. The interest being served in both cases was that of the government’s rather than that of he public.

    The generally hostile view of the media is largely attributable to the way in which Article 8 has evolved to protect the right to privacy since its incorporation into domestic law under s1 HRA following such high profile cases as Douglas v Hello, Campbell v MGN, Max Mosley and others impacting adversely upon the profit derived from such intrusive stories while the reaction of the government to adverse judgments is of no greater credibility or persuasive force than that of the offender who complains of his sentence on the steps of the court.

    • Thank you James. To a large extent I concur with what you say especially the difference between the public’s perception of the McKinnon and the Qatada cases, however I believe that solely blaming the media is an over-simplification. McKinnon had a substantial lobby, particularly on social networks, against his deportation, Qatada does not have that. I think that the social media reaction was probably more effective on influencing the political decision than the press. Incidentally, in my opinion, Mckinnon should have stood trial in the US where his activities caused extensive and costly damage

  9. Pingback: EJIL: Talk! – Evidence Obtained by Torture: Is it Ever Admissible?

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