Abu Qatada: a victory for pragmatism and the rule of law

by Carl Gardner on July 8, 2013

Photo: Home Office
Photo: Home Office

Only a matter of weeks ago, politicians were seriously discussing the possibility that the UK might need to withdraw from the European Convention on Human Rights in order to be rid of Abu Qatada. Yet this weekend we saw him board a plane to Jordan – and no human rights treaties were harmed. It’s a triumph for Theresa May, who deserves credit for a significant achievement.

The government’s breakthrough came when it accepted legal reality – it was never going to win in the Supreme Court – and focused on changing the facts. It was the mutual assistance treaty concluded earlier this year with Jordan which made it almost impossible for evidence gained by torture to be used in any Jordanian trial of Abu Qatada, and removed the human rights obstacle to his deportation. Ministers’ success is all the greater because it was got by complying with, not defying, human rights legislation. This is a victory not just for Theresa May but for Britain and the rule of law. Because adherence to the convention is an important part of British foreign policy. Withdrawing from it would be a disaster.

There’s a certain kind of romantic, especially English, patriotism – often expressed by Eurosceptic Conservatives – which insists that we invented human rights, so no foreign court or treaty has anything to teach us about them. According to this view, international human rights treaties are are of no use to us. We might as well tear them up if foreign judges show us the slightest disrespect. But the European Convention is useful to us precisely because human rights are so British. The European Convention, like every international human rights treaty, is an instrument of British soft power, projecting the British way internationally.

Looking around the world, it’s obvious that threats to British interests come from undemocratic places. It was a military junta that invaded the Falklands, for example, and the European Convention has been a vital instrument, coupled with EU membership, to bed down the rule of law in Spain, Portugal and Greece, which most of us have forgotten used to be military dictatorships not all that long ago. Central and eastern Europe used to be a hostile region, where intermediate range nuclear missiles were aimed at us. Europe looks very different now, and Poland and the Czech Republic are signatories to the ECHR. Where human rights are respected, prosperity and trade follow. British interests advance wherever human rights extend.

The political influence of human rights is even more vital on countries that are only partly open – like Russia – or where democracy is under pressure, like Turkey. Much of today’s wider world lives under shades of unfreedom where every human rights challenge and every judgment can slowly let in a little more light. Once you see this bigger picture, it’s clear that Britain’s irritation with Strasbourg over Abu Qatada really is just a little local difficulty. What’s at stake is far bigger. As the Attorney General Dominic Grieve said in a speech at Chatham House last week,

the fact that the decisions of the institutional infrastructure do not necessarily always favour our approach and can be politically unwelcome and irritating … should not deter us from the path to maintain Britain’s strategic advantage.

In a small way, Abu Qatada’s case has exported human rights to Jordan. Torture is just a little less probable there now, and evidence gained by torture just a little less valuable. That’s a tiny step forwards. But the big win here is that Britain has achieved its tactical objective without undermining its wider strategic interests.

We’re much better served by pragmatism, not petulance, about the international rule of law and human rights. The case of Abu Qatada shows pragmatism can work.

{ 8 comments… read them below or add one }

1 Matthew Burton July 8, 2013 at 19:34

I’m sorry Carl, I completely disagree. The best human rights case that you, or anyone, can make for Qatada’s voluntary removal to Jordan is that “Torture is just a little less probable there now, and evidence gained by torture just a little less valuable.” You, and the British Government, have absolutely no evidence for this. A treaty, and a Jordanian law, that amounts to “evidence that a judge believes hasn’t been obtained by torture can only be used in the trial of one man” can be hardly heralded as a victory for the rule of law. What about the thousands of other people for whom evidence obtained under torture is still admissible in criminal trials? What about the fact of Qatada’s original trial? The claim you make is one based on a hope, and an assertion from the Jordanian authorities, who have no doubt profited quite nicely from their cooperation with the British Government on this matter. A law designed to create a rule for one single individual is the precise opposite of what the Rule of Law requires. Yes, the British courts went some way to putting some human rights hurdles in front of the Government, and if Abu Qatada wants to travel to Jordan by his own choice then no one ought to be able to stop him. No doubt he knows the risks of doing so. But let’s not pretend that the outcome is in any sense a “victory” for human rights or the Rule of Law.

Incidentally, what happens if Qatada’s trial does include evidence obtained by torture? What happens if Qatada is tortured himself? What happens if the Jordanian authorities openly flout the bilateral treaty they signed? Will Theresa May and David Cameron charter another flight to bring him back? Will our celebrated courts bring Theresa May before the courts for contempt of court?

2 Andy J July 8, 2013 at 20:29

While I follow your argument in the case of Abu Qatada, I don’t believe that should therefore mean that Britain has to continue to subject itself to the ECtHR – a body with many flaws – every time a resident in the UK feels he or she has a gripe about something.
Signing up to the ECHR and reflecting it domestically in the HRA is one thing, but why shouldn’t the Supreme Court be the final forum for HR matters within the UK, instead of the ECtHR?
We are signatories to the Universal Declaration of Human Rights and many other similar treaties with a broad moral imperative, but that doesn’t mean that we have to subject ourselves to a specific supra-national court in order to gain whatever moral kudos this may provide, other than the wonderfully nebulous stricture of customary international law.
Perhaps the Council of Europe could direct the ECtHR to concentrate on providing more generalised interpetation of the Convention – much as the CJEU does with European Union legislation – and rather less on specific individual cases.

3 John B July 9, 2013 at 15:37

I agree with Matthew’s comment above. What this case has highlighted is how far the interests of foreign judges far removed from reality have come to prevail over the national interest. “Human rights” are not British; we had a system of civil liberties where rights were not writ in stone and judges had the power to curtail them in appropriate cases. In this particular case, the risk of torture in Jordan is outweighed by the risk to the British public of his presence in this country.

It’s high time that this charade came to an end and if the Qatada and Hamza cases have served any useful purpose it will be the repeal of the HRA and the revocation of the right to petition the ECtHR. If need be, add the question to the forthcoming EU referendum.

4 Carl Gardner July 10, 2013 at 01:16

Matthew,

The British government can’t be expected to be legally accountable for the use of torture in Jordan generally. And there’s nothing anyone can do about Qatada’s original trial.

If he is tortured, or torture evidence is used against him, of course he couldn’t be got back – but anyway, I see no reason why Britain should be held responsible. There is always some level of risk an extradited person (or in this case a deportee) will be tortured in the country he’s sent to. There’s a very low level of risk if he’s sent to Denmark, and another level of risk if he’s sent to Jordan. Risk can never be entirely eliminated, or rather it can be eliminated, but only by banning all extraditions and deportations. What is reasonable to expect is that Britain takes appropriate and proportionate action to ensure as far as it can that the risk is removed. I think that’s what’s been done here.

5 Carl Gardner July 10, 2013 at 01:25

Andy,

I think you’re forgetting the important consideration that we want other countries to be held to account by international courts, rather than just their own. It’s in our interest to promote strong international enforcement mechanisms like the ECtHR. It would be a foreign policy mistake, defeating our own strategy, if we argued for Britain only to answer to British courts, Russia only to answer to Russian courts and China only to answer to Chinese courts. That sort of world would suit those two countries’ current governments very well.

On your final point, actually I think the ECtHR does best if it focuses on the detail of individual cases rather than looking at things on a very broad general level. Yesterday’s “whole life orders” judgment is I think an example of the court going a bit astray precisely because it indulged in an abstract audit of whole life orders, rather than ask whether any of Vinter, Bamber or Moore had actually been punished in an inhuman way by being imprisoned for too long or denied a reasonably arguable review.

6 Carl Gardner July 10, 2013 at 01:31

John,

I wouldn’t call that referendum “forthcoming” myself. I very much doubt there’ll be one. If there is, I think it’ll be because Ed Miliband commits himself to one – which I think would be a huge blunder.

7 Jennifer July 21, 2013 at 21:33

It’s good to see a positive result without the need to with draw from the convention, withdrawing from it would have been a disaster.

8 Riaz Tayob July 31, 2013 at 11:08

It is good that the rule of law was followed. But the issue is that there is a problem both with the State (teleology) and the law – the legal position of derivatives that caused the crisis should given legalists some pause – it was all legal, and even the economist specialists were flatfooted. And coupled with a political slant that cannot be wished away by pragmatism makes this worrying. While I love your posts and views, on this I have to disagree. The ‘Deep State’ British is complicit in renditions and other actions in keeping with the ‘path dependence’ of the War on Terror/Iraq/Civil Liberties/Privacy/Prohibition of torture, as is the ECHR in the recent judgement of extraditions of 5 other muslims to the US in a case where those justices refused to hear UN Special Rapporteur evidence on likelihood of their torture in the US (because the US is a democracy – which makes Holder’s note to Putin on Snowden rather ironic). What should be clear is the consistency of the different legal institutions in Europe going after (alleged) terrorists who happen to share some affiliation with countries that Britain legall or illegally invades and bombs – what in colonial periods has been called “othering” – a practice so repetitive one would be blind not to see it unfortunately. The need for pragmatism and proportionate action should not be sacrificed at the altar of keeping perspective (that justice should be blind/equality before the law) of what is at stake as a matter of law/precedent. Now you may say that I am conflating issues here, of how the government gets what it needs to do done… vs a moral or ethical perspective… and to some extent that is correct. Be that as it may, if it is ok to do this to muslims, then in the future it will be ok to do it to Brits… (recall Japanese internment camps in the US or Boer Concentration Camps) as ordinary Americans are finding out after the Snowden affair and the Signature strikes on American citizens (including minors). There were very few White Roses in Nazi Germany… and there may be even less now … I think it is time for the reasonable people to stand up and be counted… The ECJ and May have gotten what they wanted, but at what cost… and is this the British Ethic? I would like to think not. But then again, tolerance of bastards as long as they are ‘our bastards’ is as old as the hills…

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