Denounce the ECHR to deport Abu Qatada… You cannot be serious! – Richard A. Edwards

26 April 2013 by

mcenroeThe Guardian reports that Prime Minister Cameron is considering denouncing the ECHR on a temporary basis in order to facilitate the deportation of Abu Qatada. As tennis legend John McEnroe might have put it ‘you cannot be serious!’ In order to remove one man from the jurisdiction the government is contemplating removing the protection of human rights for all. One suspects that this announcement by Downing Street was little more than ‘dog-whistle’ politics with the local elections looming next week. But what if the government is really serious? Two quick thoughts come to mind.

Firstly, the UK is on the face of it able to denounce the ECHR under the terms of Article 58, though see below. But even after a denunciation the ECHR will remain fully applicable for six months. Presumably the government would wait for the six months to expire. It would then seek within domestic law to remove Qatada. As this would also require the suspension or repeal of the Human Rights Act 1998 this would require an Act of Parliament. No doubt a political and constitutional storm would break as a result. This would of course not be the end of the matter because the decision would be judicially reviewable, no doubt under an enhanced form of anxious scrutiny. How further forth would the government be then?

Second, there is another possible difficulty for the government. States are usually free to denounce treaties and negotiate re-entry with reservations. No doubt a majority Conservative Administration after 2015 would want to enter a list of reservations to the ECHR, particularly with respect to deportation/extradition cases. In other words it would want to remove the benefit of the Convention system from a distinct group of individuals. Trinidad and Tobago tried something similar with respect to the ICCPR. Frustrated that it was not able to execute convicts as it saw fit in 1998 Trinidad denounced the Optional Protocol to the ICCPR (individual petition mechanism) and then re-acceded with a reservation that prevented capital-prisoners from bringing petitions to the Human Rights Committee. In Kennedy v. Trinidad (1999) Communication No. 845/1999 U.N. Doc. A/55/40 (1999) the Human Rights Committee held the reservation to be contrary to the ‘object and purpose’ of the Optional Protocol to the ICCPR:

6.7 …. the Committee cannot accept a reservation which singles out a certain group of individuals for lesser procedural protection than that which is enjoyed by the rest of the population. In the view of the Committee, this constitutes a discrimination which runs counter to some of the basic principles embodied in the Covenant and its Protocols, and for this reason the reservation cannot be deemed compatible with the object and purpose of the Optional Protocol. The consequence is that the Committee is not precluded from considering the present communication [from Kennedy] under the Optional Protocol.’

Trinidad then denounced the Optional Protocol in its entirety in 2000.

In Europe the situation would be similar. Under Article 32 ECHR the European Court court would have jurisdiction to consider the validity of a denunciation. Article 32 provides that, first, the jurisdiction of the Court extends ‘to all matters concerning the interpretation and application of the Convention’ and, second, ‘in the event of dispute as to whether the Court has jurisdiction the Court shall decide.’ The European Court has already examined the lawfulness of reservations. There is no reason why a sham denunciation should be treated any differently. In Loizidou v. Turkey [1996] ECHR 15318/89 the European Court examined, amongst other things, the Turkish reservation to the then Article 25 limiting the scope of the ECHR to Turkey and not the Turkish occupied territory in Cyprus. As a former resident of northern Cyprus the applicant was unable to vindicate her Convention rights. Before considering the substantive claims of the applicant the Court examined the validity of reservation and remarked:

‘If, as contended by the respondent Government, substantive or territorial restrictions were permissible under these provisions [allowing reservations], Contracting Parties would be free to subscribe to separate regimes of enforcement of Convention obligations depending on the scope of their acceptances. Such a system, which would enable States to qualify their consent under the optional clauses, would not only seriously weaken the role of the Commission and Court in the discharge of their functions but would also diminish the effectiveness of the Convention as a constitutional instrument of European ordre public.’ (para. 75)

The jurisdiction of the European Court would need to invoked via either Article 33 or Article 34 ECHR. It is possible that the Court would exceptionally allow a petition from Qatada notwithstanding a failure on his part to exhaust his domestic remedies. But equally the UK might be subject to an inter-state complaint under Article 33 ECHR, perhaps brought by the newly acceded European Union. Article 33 ECHR actions have the character of an actio popularis.

As the Court noted in Ireland v UK [1978] ECHR  5310/71 ‘unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a “collective enforcement”.’(para. 239.) The collective enforcement of the ECHR is as much a part of the public ordre of Europe as the right of individual petition. It is not inconceivable that another Contracting State would bring the UK before the European Court arguing that the denunciation is invalid. The European Court would have jurisdiction to rule on the validity of a denunciation just as it did with respect to the reservations in Loizidou.

It might be argued that once the UK had denounced the ECHR any inter-state case would lapse after six months. However, in the inter-state case arising out of the Colonels’ seizure of power in Greece (Denmark, Norway and Sweden v. Greece [1970] ECHR 4448/70) the Commission after admitting the application mothballed it, reviving the matter once Greece had re-signed the Convention. Eventually, however, the application was struck off in 1976 after all the parties to it decided not to proceed.  Nonetheless, it is possible that the UK might find itself subject to proceedings before the European Court long after it has deported Abu Qatada.

This post is by Richard A. Edwards, Associate Head of the Law Department and Principal Lecturer in Law at UWE, Bristol. It first appeared on the Euro Rights Blog and is reproduced here with permission and thanks.

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  1. frednach says:

    Hard cases make difficult decisions but hysterical comments manifest in subverting the rule of law. In this country as we know it we are governed by laws and rules not on the whim of government, let alone a government minister. Laws apply equally to all no matter how pleasant or otherwise a person may be. Yet the rhetoric and sound bites for political or otherwise personal ambitions give the clear impression of the nasty party rearing it’s head once more from the Tory party for whatever reason seem obsessed with the removal of this one British citizen even where the highest courts in the land have serious reservations about his extradition to another country where the ‘evidence’ is derived from torture and so tainted.

    Due process have either to be respected by all or we fall into the shadows of delivering hunted or targeted justice meated by the powerful on the weak. We either uphold and respect our laws and decisions or we seek individual truce by the machinary of government absolved in tyranny..

    1. Guest says:

      He is NOT, nor ever has been as far as I am aware, a British Subject. He arrived in the UK from Jordan on a UAE Passport, which was a forgery. He claimed asylum on the grounds of Religious Persecution (ironic when you consider his views) and was granted leave to remain. The Labour Government revoked that leave, as it had a right to do, and efforts to deport him have been on going for 10+ years. He is a Jordanian subject and is wanted for trial in Jordan, and has actually been tried and sentenced there.

      Would he receive a fair trial in Jordan ? I have no idea and nor do any of you. Define ‘fair trial’. The Jordanian Legal System is is based upon Code Napoleon and Sharia Law. Would seem that as Qatada loathes Britain and the British he would welcome a judicial system, which uses elements of Sharia, rather than English Common Law and Christian tradition.

      This whole case shows what is wrong with the Human Rights industry, as all the comments above merely illustrate. The Government has a right to say that someones presence in the UK is not to the public good and return them to the country of which they are a citizen. Most of what Qatada has argued is speculative drivel. He might face a trial with evidence taken on a Tuesday, so that would seem cause enough not to deport him.

      He really should be deported back where he belongs.

  2. Tom (iow) says:

    What with the almost unprecedented act a few weeks ago retrospectively making unlawful benefit deductions lawful, and now this, why not cut out the middle man in future and just say that from now on ministers decide the law at will?

  3. James Lawson says:

    The government have no intention of withdrawal on a temporary basis. They have stated that withdrawal from the Convention will be a manifesto commitment in the next Parliament. For that they need public support. This is why the government have continued to overstate Qatada’s danger and explains its continued pursuit of him long after the Home Secretary has ‘run out of law’ to effectuate it. Each failure, accompanied by loud depressions of frustration has the intended political effect of alienating the public still further from Convention precepts. The level of public debate on Qatada is appalling in its ignorance while the manipulation of public opinion by both the government and their supporters in the media is both blatant and obvious.

    As for the ‘agreement’ reached between the United Kingdom Government and the Kingdom of Jordan. It is unfortunate that not a single politician or newspaper editor has bothered to take a close look at it:

    Note in particular Art 32(2) of the agreement which, when combined with the secrecy clause at Article 5(3) means, in effect, that if the United Kingdom Court is satisfied that on its face, the agreement offers sufficient guarantees that Qatada’s Article 3 and 6 rights will be respected if deported to Jordan, the combined effect of the two clause is that Jordan can jettison the agreement under Art 32(2) the moment Qatada steps off the aeroplane, if not before, while at the same time invoking the secrecy clause at Art 3, and unless expressly made the subject of disclosure by a UK Court, the renounciation of the agreement will not be made public with the consequence that Qatada is tried six months and one day later on the terms that the Jordanians intended to try him all along.

    To those who would suggest that such clauses are a normal features of MOUs, one may retort by suggesting that if such agreements are intended to be permanent, why insert a mechanism to make renounciation automatic and why provide a secrecy clause!

    To those who may suggest that political constraints might make such an outcome unlikely. The retort is that while that might be true in a democracy, it would certainly not constrain a country like Jordan which is subject to autocratic rule.

  4. RightsGoneWrong says:

    Why do we leave and re-join as we were before? Can’t we re-join the convention without signing up to the court, as was the case in the 1950’s and early sixties. Can’t the supreme court do the job of the European court? They are much more qualified.

    Politicians are supposed to play their part as well and interpret human rights creating British law. Instead they ducked the challenge, passed the job 100% to the judges and then are unhappy when the judges judgements demonstrate what a warped vision they have of Churchill’s treaty.

    Churchill deported many Russians back to Stalin to have their human rights violated, so critics can not argue that they were aware at the time what might happen if someone was deported somewhere where they may be tortured etc. Yet that was never written in to the treaty, instead in the Soering vs the UK case 1988 the judges admit under article 1 that they have no authority to compel the UK to take in to consideration what might happen to someone like Qatada when deported, but still ride roughshod over the most important right claiming the treaty has to be workable. Maybe instead of making it up as they go along, the Strasbourg judges should ask the politicians to come up with a more modern convention.

  5. So, according to this sensible post, Cameron’s suggestion is not only morally reprehensible, but also legally infeasible. Yet I am sure that his words appeal to those wavering between Conservative and UKIP.

  6. Dominic Houghton says:

    A government that is prepared to try to remove human rights protection for all, simply to allow persecution of one person simply illustrates how much we need the ECHR. Cameron worries me a lot more than Qatada does!

  7. Julian says:

    There would be no need to suspend the Human Rights Act or Magna Carta just pass a further Act stating that x, y, z Acts / Laws would not apply to certain classes of individuals, say those with a surname starting with “Q” or called “Abu” or something along those lines….. Where there is a will [of the people, or the daily mail]….

  8. Tim says:

    I’m presently a bit short of money so I intend to suspend the criminal law, then rob a bank and once my finances are refreshed, reinstate the criminal law. Anybody got a problem with that?

  9. I may as well demand criminal law is temporarily abandoned so I can steal from a Bank without fear of prosecution! The whole idea of temporarily abandoning a law or international agreement is ludicrous.

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