Debating the Abu Qatada affair – Gavin Phillipson
26 November 2012
I watched the BBC’s flagship political debate Question Time last week and saw a panel of senior politicians from the three main parties plus UKIP debate the implications of the Abu Qatada affair with the audience. You can watch it here (starts at 8 mins 27 seconds) and I urge you to do so. I found the debate illuminating and alarming in equal measure; it made me reflect seriously on how precarious Britain’s interwoven system of international and domestic protection for human rights may actually be these days.
It seems a long time ago that we naively thought that repeal of the Human Rights Act was “unthinkable” – now withdrawal from the European Convention on Human Rights (ECHR) itself must seemingly be taken as a serious possibility, depending on the outcome of the next election. The failure of the HRA to implant itself into our political, still less our popular culture was starkly apparent from the debate: I don’t think anyone even mentioned it. A statute that should surely be an important reference point in any discussion of a contemporary UK human rights issue has become so marginalised and misunderstood that it simply didn’t come up. Can one imagine American – or German – politicians discussing such an issue without mentioning their constitutional Bills of Rights – or Canadians, without mentioning the Charter?
Also striking was the virtual unanimity in the panel and amongst the audience that Qatada should be on a plane to Jordan or at least that he should be behind bars – but apparently without the inconvenience of having to convict him of any offence. From a human rights perspective, it is perhaps hard to say which was the more depressing low-light of the debate: Harriet Harman for Labour seemingly calling for the return of internment of foreign nationals or Chris Grayling for the Tories explicitly leaving open the possibility of complete withdrawal from the ECHR. Every speaker was sure that Qatada was a dangerous terrorist (or least “not conducive to the public good” as Harman put it); despite the fact that he has never been convicted of a terrorist offence in this country, no-one allowed themselves to be troubled by the presumption of innocence.
The legal aspects of the latest judgment in the Qatada saga, delivered by SIAC, were ably analysed by Tom Hickman on this blog last week. The point of this post is not to consider this judgment, the Strasbourg one that preceded it, or the legal incongruities they throw up – something Hickman dissected well. Rather it is simply to point out how rapidly and radically human rights arguments seem to be losing the day – and to consider what lessons we can draw from this sobering snapshot of political attitudes towards rights in the post-Blair era.
The Question Time “debate”
What then were the lines taken by the speakers? Nigel Farage for UKIP called for the British Government to “show a bit of spine” and simply defy Strasbourg. He ended by saying – to loud applause – “to hell with the European Court of Human Rights”. Predictable enough, we might say.
Tessa Munt, for the Liberal Democrats at least knew that the most recent judgment blocking Qatada’s deportation was by SIAC, not Strasbourg. But she devoted most of her comments not to supporting the rule of law or arguing for the sanctity of the anti-torture norm, but to say that it was “extraordinary” that Qatada was free to “walk the streets” during daytime hours and calling for him to be arrested. She didn’t say what for; the fact that in 10 years the prosecuting authorities have not thought it possible to charge Qatada with anything, suggesting that the evidence is simply not there, didn’t seem to trouble her. (Qatada was arrested and questioned in February 2001 about a German terrorist cell. Due to a lack of evidence he was never charged). As well as failing to defend the anti-torture norm, she made no attempt to stand up for either the Convention or the Strasbourg Court. And this from the pro-civil liberties, pro-European Liberal Democrats.
The Justice Secretary, Chris Grayling, as Lord Chancellor has particular duties by convention and under the Constitutional Reform Act 2005 to uphold the rule of law and judicial independence, so he was careful not to criticise any individual judges. He was clear that the government and other authorities had to obey rulings of a British court – but didn’t say whether the same applied to Strasbourg judgments. In relation to the European Convention he said repeatedly that the current “human rights framework” in Europe was not working and must be changed. He clearly and explicitly stated that outright withdrawal from the Convention was one of the options he was considering – the first time I have heard a sitting Lord Chancellor float this possibility. The clear reversal of the pro-Convention attitude of the previous Justice Secretary, Ken Clarke was starkly apparent.
Harriet Harman’s remarks on behalf of Labour were in some ways the most startling and depressing, both for their authoritarian tendencies and their seeming ignorance of the legal framework. While Grayling is a known right-winger and Euro-sceptic, Harman has a strong background in human rights – she was a legal officer for the National Council for Civil Liberties – now Liberty – and has taken the British Government to Strasbourg and won cases there concerning both contempt of court and the legal status of MI5.
One might therefore have hoped for a robust defence of human rights and the rule of law from one of Labour’s most seasoned campaigners for civil liberties. She did say – almost in parentheses – that we shouldn’t deport people to countries where they could be tortured or have torture evidence used against them in court. But the main thrust of her remarks, like those of her Liberal Democrat colleague, was directed against the fact that Qatada was “walking around free”.
But whereas Muntappeared to be calling for Qatada to be put on trial, Harman explicitly and repeatedly called for a return for internment. “We did have a system in the past” she said, for detaining non-British citizens whom the authorities consider a threat to national security but can’t deport because of the risk of torture. Later remarks clarified that this did not refer to detention with a view to deportation (lawful under Article 5(1)(f)) but rather to detention of those we know we cannotdeport. It was also clear that it referred to those who we cannot convict in a court of law. Seemingly, therefore she was calling for something like the re-enactment of the powers under Part IV of the Anti-Terrorism Crime and Security Act 2001 to detain foreign terror suspects indefinitely without charge.
To have a Labour Shadow Minister calling for a return of this draconian and discredited power was alarming enough. Worst still was her seeming ignorance of the legal background (Harman has served as Solicitor General and holds the honorary title of QC). First, the introduction of detention without trial would plainly violate Article 5 of the Convention, and therefore require the UK to derogate from it (as in 2001), something in turn which requires there to be “a public emergency threatening the life of the nation.” But Harman never acknowledged this, or suggested that such an emergency exists.
Second, although she was a member of the Government at the relevant time, she seemed not to know why the Part IV ACTSA power had been withdrawn. Harman said was that it was a judgment of the Strasbourg court that prevented detention without trial of foreign nationals. She said several times that the remedy for this was that all the European countries for whom this judgment was a problem should go “back to Strasbourg” and say “we must have the right to determine our own immigration processes,” including – seemingly – the power to detain those who cannot be deported. What is baffling about this is that it was of course a judgment by a British court – the then House of Lords in what we like to call the “famous” Belmarsh judgment – that found the Part IV indefinite detention powers unlawful under the Convention; the House found that even assuming that there was a public emergency, detaining only non-nationals was irrational, discriminatory and disproportionate. Yes, Strasbourg endorsed that finding five years later in A v UK (2009) but it is the Belmarsh judgment that led to the withdrawal of Part IV, and which still stands as a precedent binding on lower courts.
The third point relates to the grounds that Harman gave for detaining Abu Qatada without trial. She complained several times about the cost of keeping him under surveillance and concluded (this is a quote): “We wouldn’t feel unsafe and it would be cheaper.” Aside from the fact that these are somewhat flimsy grounds on which to introduce so grave a step as internment, Harman must surely know (mustn’t she?) that they could never justify a derogation. Finally, none of the politicians mentioned the UN Convention Against Torture, to which the UK is a signatory, Article 3 of which specifically prohibits deportation to torture.
In all of this, it was left to the non-politician guest – the CEO of Saatchi, Moray MacLennan, to, as he put it, introduce a small note of dissent by mildly querying why, if Qatada was such a notorious terrorist, he had never been charged with any criminal offence. In contrast, all the comments from the audience were hard-line. One man said, to applause, “we’re a soft touch –everyone in Europe knows we’re a soft touch”; an Asian teenage boy said firmly that foreign nationals engaged in terrorism-related activity should be locked up. Since he mentioned nothing about a charge, trial or a conviction, this appeared to be a pro-internment comment – also applauded. Meanwhile another man said simply that there must be some way of sending Qatada back to Jordan while another bizarrely said that Qatada’s fate should be decided by a referendum.
Comment
What are we to make of the above? Am I being alarmist, or overly pessimistic? After all, both the Labour and Liberal Democrat spokeswoman did say that we shouldn’t send Qatada to Jordan, which is something. Perhaps also, someone might say, Harman was not seriously calling for a return to internment (even though that is what she said). She just knew that Qatada and his rights are wildly unpopular and thought that anything other than sounding “tough” about him would be political suicide; besides Labour would never be held to her call for the return of internment. Perhaps even the Tories would never really pull us out of the ECHR – perhaps they just make vague threats to appease press and popular anger – about Qatada, and about prisoner’s voting rights.
Even granted all these things, as a snapshot of contemporary political attitudes about rights, the Question Time debate was still deeply disturbing. Even if Harman didn’t mean what she said, the fact that she felt she had to call for detention without trial just to keep Labour on the right side of public opinion on the Qatada issue would still be deeply disturbing in showing where the centre of gravity now lies in public discussion of human rights.
Moreover, even if some of the Tories don’t really mean it when they threaten to pull out of the Convention (and I think at least some of them are in deadly earnest), their comments steadily chip away at the legitimacy of the Convention, rapidly making what was previously unthinkable – save for those on the really hard-core anti-European Right – a mainstream policy option. Such calls also steadily build up expectations amongst the right-wing media and sections of the public that this will actually happen.
The Tories have now been making angry noises about the HRA and the Convention for a long time: they won’t be able to fob off their supporters, UKIP, the Sun and the Mail for much longer with Bills of Rights Commissions and vague promises of a “British” Bill of Rights. Even when politicians say things they don’t mean to appease an angry electorate it still confirms my suspicion that in many, perhaps most cases, when it comes to the rights of unpopular minorities like terrorism suspects and asylum seekers, votes lie in restricting, not upholding rights.
Finally, for those of us who do not vote Conservative, and are desperate to see a more progressive Government after 2015, we are left gloomily watching debates like this, and Yvette Cooper outflanking the Coalition to the right by repeatedly attacking the Government for removing the power to impose internal exile on terror suspects subject to a TPIM (which replaced Control Orders). The removal if this power, found to be peculiarly destructive of controlees’ lives, was one of the few concrete ways in which TIPMs improved upon Control Orders. Political constitutionalism calls for questions of rights to be determined not in the courtroom but through democratic means. If the only sure way to get a better government is to vote Labour, but Labour is in some respects at least, profoundly illiberal and authoritarian, then many of us will hold our noses and vote Labour anyway. But in what real sense is that a democratic determination of rights issues? When all politicians on a panel agree on an illiberal line, where is the real political debate about rights?
The purpose of this post is not argue that we should give up on political protection of rights and trust the judges instead. Regardless of whether our preferences in political philosophy lean towards Dworkin or Waldron, in a country such as ours at least the argument for rights has got to be won in the political sphere. This is so if only for the practical reason that, were our elected representatives to withdraw their support for the human rights project, the judges will have their legal rights-protecting tools – the ECHR and the HRA – taken away from them.
While common law norms might stage a limited fight-back in such circumstances, ultimately it is the political domain that will decide whether the UK will continue to accept the judgments of Strasbourg, whether some prisoners get the vote, and whether we lock up terror suspects without trial because it’s cheaper and makes us feel safe. As Conor Gearty has said, we must therefore “fight the good fight” for human rights in the political realm. But it’s important to know just how uphill a struggle it will be – just how entrenched ignorance and contempt for human rights norms may be becoming – even these we like to think of as both elementary and central to our democracy.
This post by Professor Gavin Phillipson of Durham Law School was originally posted on the UK Constitutional Law Blog and is reposted here with permission and thanks.
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Question Time on TV and on Radio 4 is an illuminating exercise in the distinction that exists between what British Politicians say in public and how they act in office. In public, they wait for the first applause and then tailor their response to accord with its sentiment. While in office, they often act quite differently.
The Human Rights Act will not be repealed. Neither will we withdraw from the Council of Europe or from the European Union for that matter. Once you leave, you’ve ‘shot your Bol’t and whatever political influence you once had is greatly diminished. Not something that the political establishment in this county will readily relinquish.
Political Poker both at home and abroad is something the British are particularly good at. It allows us a much greater degree of political influence than we might otherwise be able to obtain as nation with a very weak industrial base. Maintaining a degree of domestic hostility allows Ministers to obtain far more concessions at a European level than we could otherwise obtain from the Council of Europe and the European Council.
At home, the maximisation of political and commercial capital by the privately educated is accomplished through the exploitation of ignorance provided in abundance by the state education system which denies millions of its citizens the power of critical thought and a proper insight into the way in which we are governed by those we choose to elect.
While Human Rights and Civil Liberties may continue in form, their substance continues to change as large areas of State activity are placed beyond accountability to Parliament and the public while ‘rights,’ however they are defined in their political and social context, will continue to be made more difficult to discern, more expensive and procedurally difficult to vindicate while the remedies derived therefrom, will continue to be made valueless.
It is this latter process, the way in which the State will retain a system of political and social ‘paper’ rights, while it organises its affairs to place its activities beyond reach, that is rather more deserving of analysis in my view.
Nigel Farage made the same point during the discussion, i.e. that it is not possible to be a member-state of the EU without being bound by EU law, which now includes the Charter too. Clearly, Lord Denning was right when he predicted that European Community (as it then was) Law would gradually creep across the Channel and up through our mighty and lesser rivers, then up the large and small streams until such time as we were all completely taken over by European Law. Whether this is a good or a bad thing is for others to decide, though I have my own views too.
On the substantive point of emprisoning and/or deporting Qatada, I too kept having the same question arise in my mind over and over again: if he is suspected of being engaged in illegal activities here, then why has he not been brought to trial? All the politicians kept repeating he was an awful and evil character but produced no evidence to support what are mere assertions.
It has been said that bad cases make bad laws, and it seems Qatada may end up proving the truth of this saying. He has spent the best part of 7 years in custody for no fathomable reason that I can see. If he set out to undermine British justice then the politicians have all acted like his underlings in this regard, have they not? Either charge him or let him go. This is supposed to be a free country – let us prove that it is.
Signing up the the ECtHR is in practice a condition of joining the EU – although it doesn’t follow that denouncing it would automatically mean you leave or get thrown out. It would mean a political crisis within the EU – though the EU has lots of crises. It might or might not be a major one.
You’re right that ECHR rights would remain enforceable in the UK though the EU law “gateway”. Again this shouldn’t be exaggerated: EU law doesn’t cover the whole of UK law. But there would be major areas (discrimination at work is an example, and free movement of EU citizens and their families) where ECHR rights would apply. This would be the position even if there were no Charter of Fundamental Rights – it made much less difference than most people assume.
Something that bothers me about the proposal to withdraw from the ECHR:
Article 6(2) and (3) of the Treaty of Lisbon provide that the Union “shall accede” to the ECHR and that “[f]undamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”. The Preamble to the Charter of Fundamental Rights of the European Union (CFREU) declares that the Union “reaffirms … the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights”.
EU law takes precedence over domestic law, So do Article 6(2) and (3) of the Treaty of Lisbon and the Preamble to the CFREU constitute fundamental rights under the Treaties – and if they do, are they not at least in some sense mandatory? And moreover, if the provisions of the ECHR cease to be directly justiciable in the UK, might not claimants begin to plead the Charter of Fundamental Rights instead, arguing for its direct applicability under s 2(1) European Communities Act 1972 as “rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties”?
You can see where this is leading to: is it a necessary condition of membership of the EU to be a party to the ECHR? I assume that is it – but I’m pretty much an amateur on human rights law and I’d appreciate an expert view.