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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Related posts
- Abu Qatada: Preventing a flagrant denial of justice
- Abu Qatada wins appeal against deportation
- Abu Qatada detention will continue through Olympics
Some useful external coverage
- Tom Hickman: The Return of Abu Qatada (to the streets of London) | UK Constitutional Law Group
- Abu Qatada, hard cases & bad law – Francis Fitzgibbon QC
- Abu Qatada: what happens next? | Head of Legal
