Tuesday, February 18, 2014 

The hope or possibility of release returns.

Say what you like about judges, and many, especially the tabloid press often do (as an aside, it's worth noting a certain Brian Leveson, in his role as President of the Queen's Bench division, was one of the presiding judges in this case), there are times when they are remarkably ingenious. Almost everyone thought the appeal court would accept the reasoning of the European Court of Human Rights' Grand Chamber, and duly find that those given whole life sentences must have some sort of body to which they could apply to have their sentence reviewed after a defined period of time. The Conservatives certainly did, floating the option of allowing judges to impose American style hundreds of years sentences, which could then be reviewed without release being any real possibility.  It seemed a great, typically Tory ploy: adhering to the ruling, if not the spirit of it, in much the same way as parliament has attempted to defy the court over giving the vote to some prisoners.

One indication that perhaps the government knew some sort of compromise was forthcoming, or had some faith in the case it was due to make to the appeal court, was that it suddenly seem to drop the above proposal, almost as quickly as it had raised it. The appeal court's rejection of the ECHR's ruling is based on what it says is a misinterpretation of the current laws: the grand chamber failed to take properly into account what section 30 of the 1997 Crime (Sentences) Act allows. Although previously it has only been used to release prisoners who are terminally ill, it can allow release in other circumstances on compassionate grounds also. The judges can't say what these circumstances might be, except that they will have to be exceptional given the fact a whole life term was considered necessary in the first place, but it still amounts to the "hope or the possibility of release" required, and to compatibility with Article 3.

Whether this is evidence of the perceived new attitude among some judges to the ECHR, no longer taking direction from Strasbourg as unquestionable, is more difficult to tell.  What it has done is both gotten ministers out of a problem, and given them a new one.  Had the appeal court agreed with the ECHR the easiest and best solution would have been to reintroduce the old system where whole life terms were reviewed after 25 years, only giving the power to the parole board or a judge rather than to a politician as was previously the case.  Instead the onus has been put back on the justice secretary, who now faces not just the likes of Ronnie Biggs applying for compassionate release on the grounds of ill-health, but the most notorious murderers and serial killers asking for the same, if that is they can point towards exceptional circumstances that have arisen since they were sentenced.  Nor will it be possible to simply dismiss such requests out of hand when the ECHR will be watching, even if it might well be a while before any such attempts to test out section 30 are made.

This itself depends on whether or not the ECHR accepts the appeal court's reasoning, should another appeal to Strasbourg be made.  It could for instance suggest that still more clarity is needed around section 30, precisely why it reached its decision in the first place, saying the appeal court hasn't in its view disproved its own analysis.  The other thing the ruling has done though, as Joshua Rozenberg notes, is to somewhat take the wind out of Chris Grayling's sails over the upcoming Tory manifesto plan for the reforming/dumping the convention.  No longer able to point to the court saying we can't lock up the worst of the worst for life, although it never said anything of the sort in the first place as both the appeal court and the QC for the government accepted, it leaves just the Abu Qatada palaver and votes for prisoners as the main grievances. A strong enough case for the Pavlovian anti-Europe Tories and tabloids certainly, but not for anyone who bothers to take an interest.  Judicial lawmaking or not, the appeal court's ruling could yet have far wider political consequences.

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2/18/2014 10:06:00 pm | |

Thursday, January 02, 2014 

Judging a year by its start.

One of the best pieces of obvious advice you can ever give or be given is not to judge a book by its cover.  Unless of course that book is a magazine called Readers' Wives, in which case you can be fairly certain it will contain photographs of amateur women in various states of undress.  Or a novel/biography by Katie Price.  Or Alex Ferguson's understated autobiography, I Was Always Right And Youse Should All Be Doing Obeisance Before Me.

You can however make a fairly informed judgement on the way a year is likely to pan out based on the themes of its opening days and the few that came before.  Last year was dominated by continuous attacks on those who dare to continue to subsist on benefits, and then attention turned to those other sponging bastards, the immigrants who come here purely to leech off the taxpayer.

January the 1st has duly come and gone, and despite the alarmist even by their standards shrieks from the outer reaches of the right-wing press, those dastardly Romanians and Bulgarians have yet to flood into the country, instead making the journey in their tens, if that. There probably will be thousands overall who decide to come here over the year as a whole, so it's more than slightly premature to start the crowing and mockery now, but if it turns out to be the tens of thousands predicted by the more egregious scaremongers I'll be surprised as anyone.

Immigration will then remain a theme, as ever, regardless of the reality, just hopefully with less hysteria than of late. The bullshit quotient will though be amply filled by the Tories telling us the plan is working, as evidenced by David Cameron's ever informative new year message. It doesn't matter that the plan was for the deficit to have been eliminated by the end of this year in time for some election giveaways, with the Tories now promising to achieve a surplus by 2018/19, a mere 5 years later, and that there's evidence to suggest it was the very forced loosening of the plan that prompted the recovery we're now experiencing, just know you'll be told repeatedly that it's working. For the umpteenth year in a row Cameron has said the economy is the be all and end all, so who are we to disagree?

We will though also be treated to excerpts from what is being called the Tories' "pre-election manifesto" or to call it by its proper name, the Lynton Crosby whistle and see who answers strategy. As a preview of what seems certain to be the most right-wing party manifesto since Thatcher's heyday, the Tories look set to either espouse full withdrawal from the European Convention on Human Rights or at the least attempt some sort of fudge giving the supreme court rather than the ECHR final say. How this will work without leaving the convention isn't clear, and even if legal it will almost certainly be challenged, so the chances of it happening are fairly remote.

What they most certainly can do, or at least threaten to is interpret the ECHR's rulings in the most asinine way possible.  Whereas it's taken two governments 8 years now to not implement the ECHR's verdict that some prisoners must have the right to vote, the ruling of last year that those given whole life terms must have access to a review system at some point has become rather more urgent as some judges, in line with the ruling, have declined to impose whole life tariffs, although it hasn't stopped others.  Most notable is that Mr Justice Sweeney delayed sentencing the two men found guilty of the murder of Lee Rigby until after an appeal court ruling this month on the issue, one the government clearly expects to lose.  Hence one of the options we're told is being considered is American-style tariffs of hundreds of years imprisonment, which could then be reviewed and shortened to something more sensible like say, three score years and ten.

Despite the court being at pains in its ruling to make clear it was not saying no one could be given a whole life term, merely that in line with other European countries it believed those given such a sentence must be able to have it reviewed after say, 25 years, the Tories unsurprisingly have presented it as yet another outrageous imposition from those loco unelected idiots in Strasbourg.  It doesn't matter that it's only very recently that such a system has been introduced, and then only in England and Wales as both Scotland and Northern Ireland have different systems, Scotland not having full life terms at all, life David Cameron declared must mean life.  Except it doesn't for the vast majority of those given a life term, rather only to the now 50 or so considered the worst of the worst.  The slightest change to the current system would suffice, say giving a prisoner the opportunity to apply for their sentence to be reconsidered after 30 or 40 years by either a judge or the parole board, but apparently this would be too obvious and too soft.  Better to go overblown and make a mockery of the ruling, especially when there's an election in the not too distant future and making clear how determined Cameron is to reform everything European ahead of the promised referendum is hardly going to be a voter loser.

Here's then to another year of posturing, blaming the victims and the most reprehensible cynicism.  And there might be some of that at Westminster and in the media as well.

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1/02/2014 09:32:00 pm | |

Wednesday, July 10, 2013 

The usual posturing on the ECHR.

If nothing else, the ruling by the European Court of Human Rights' grand chamber that those sentenced to whole life terms must have at the least a slight hope of one day being freed, has thrown up an somewhat heartening statistical comparison.  We might lock up far more people than most of the rest of Europe, with 83,902 in prison or immigration centres last week (a figure that doesn't include those in either maximum, medium, or low secure mental health wards) but only 49 of those will definitively never be released.  Obviously, some of those given life terms with a minimum period they must serve before being able to apply for parole will also never be released, while others will die in prison, but it can't be said that judges lightly pass sentences that deny the convicted any chance of reform and rehabilitation.

It's understandable then that some have been angered by the ECHR ruling, unusual in that the grand chamber disagreed with the judgement handed down by the court itself, which found against Douglas Vinter, Jeremy Bamber and Peter Moore.  Politicians and commentators alike have made the point that in abolishing capital punishment, the compromise was that life sentences that meant life for the most serious offences would be the replacement.  In actuality though, it was only back in 2003 that all discretion was removed with the passing of that year's Criminal Justice Act, when the power to increase the minimum term of life sentences was rightly taken out of the hands of politicians.  With it also went the appeal after 25 years that those sentenced to whole life terms could make.  Oddly however, those who are considered terminally ill or incapacitated still make their appeal for release on compassionate grounds to the justice secretary, hence the controversy over the release of both Ronnie Biggs (still alive, although definitely incapacitated) and al-Megrahi (dead).  The system is also different across the UK: Scotland doesn't have whole life tariffs, while Northern Ireland still has the 25-year system.

The very existence of the whole life sentence poses problems which have never been fundamentally answered.  When there is no hope of release, there is little reason for the prisoner to cooperate with the system except to make what life they have slightly easier for themselves, and in turn, the prison officers.  We saw this just last month with Ian Brady's appeal to the mental health tribunal: whether he genuinely wants to return to prison in order to starve himself to death only he really knows.  What he definitely likes doing is challenging the system, which is what his "hunger strike" protest has long been about.  It's also possible it can have even grimmer side-effects: we can't know whether Dale Cregan's motivation for killing two police officers having already murdered two members of a local crime family was, as he said when he gave himself up, for the hassle the police had caused his family, or that he knew full well the net was closing in and he was likely to spend the rest of his life in prison anyway.

As Joshua Rozenberg points out, it wouldn't take much for the government to meet the court's ruling, whether it amended the 1997 act that provides for compassionate release, or established a system through which whole life terms could be reviewed either by the parole board or a judge after 25 years. It seems extremely unlikely that any of those currently on a whole life tariff would be deemed suitable for release, precisely because they have been used so sparingly. The real issues are two-fold: that a whole life term doesn't seem like one if there is the possibility of release, however remote, the same problem there is with the life sentence which really means life on licence rather than actual life in prison; and that this is in the view of some, another example of the ECHR interfering in laws that should be left to the discretion of member states.

However much it does go against decent liberal sensibilities, that there is always the possibility of redemption and reform, there are some cases where life has to mean life.  That doesn't mean there shouldn't be a system where even the hardest cases should be reviewed, but getting the message across that this won't mean the most depraved criminals could still walk free after 25 years is going to be incredibly difficult if not impossible.  This said, the idea this is going to be legislated on swiftly is laughable: it's now 8 years since the ECHR first ruled that some prisoners should get the vote, and as yet there still hasn't been an act facilitating it.

Instead we will get plenty of posturing.  Chris Grayling we're told wants further reform of the ECHR rather than the exit, while Theresa May apparently wants us out.  It doesn't matter that however often scrapping the human rights act is discussed or leaving the ECHR is proposed, we never hear specifically what it is about the convention that makes it beyond the pale.  We hear complaints about the right to a family life preventing the deportation of criminals as well as the whole Abu Qatada fandango, when the reality is that the objection is to the way judges, both British and at the ECHR interpret the law.  Getting rid of the HRA and replacing it with a "British" bill of rights which will almost certainly contain the exact same protections is not going to change things without the legislation being so specific as to be discriminatory itself.  Unless the Tories win a majority in 2015, and they're certainly not on course for one at the moment, we might eventually get round to putting back in place a system that until very recently wasn't regarded as beyond the pale.

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7/10/2013 11:05:00 pm | |

Friday, January 27, 2012 

We must stay bound by the "shackles of the human rights court".

Despite the briefing it received in advance, David Cameron's speech to the Council of Europe on reforming the European Court of Human Rights was fairly tame stuff. With the exception of his promotion of a "sunset clause", which it has been rightly pointed out could result in a denial of justice, the exact thing the ECHR is meant to prevent, it certainly wasn't the "savaging" the Sun described it as, nor did the elite seethe. The real problem we have is the "lively debate" Cameron referred to over human rights in this country, which translated means the insistence of the tabloids that we should have the right to send anyone back to wherever they came from if they're considered a threat - even if that means depositing them in a country in the middle of a civil war, or in the case of Abu Qatada, to face a trial where the evidence against him was in the ECHR's opinion overwhelmingly the product of torture.

The real danger of the Sun wanting to free us from the "shackles of the human rights court", a ironic sentence if there ever was one, is that if it were to come to that we would be doing the biggest disservice to those in the less free nations in eastern Europe. Figures compiled today show that comparatively, the decisions that go against the UK at the ECHR are relatively few. Indeed, more were dismissed than allowed. Turkey, by contrast, had 159 out of 174 decisions go against her, while Russia had 121 out of 133. Both France and Germany also had far more cases heard and go against them than the UK did, with the courting finding there had been a violation in 23 and 31 of the applications respectively. If those on the right got their way and we withdrew from the convention, then it can be guaranteed that Russia would do the same and point towards our decision in justification.

As right as Sir Nicolas Bratza was in criticising politicians for using "emotion and exaggeration" when taking on the ECHR, it also bears pointing out how they ignore cases which don't fit into the standard tabloid "'uman rights madness" archetype. It was only after the family of Christopher Alder went to the court that the government admitted they had been initially denied a proper independent investigation into his death, as well as accepting that the neglect he suffered at the hands of the police was so serious that it amounted to inhuman or degrading treatment, breaching article three of the convention. By all means reform the court so the backlog it currently has can be swiftly dealt with - what must not be allowed to happen is any dilution of its right to intervene in cases which "have been dealt with properly in the national courts", something liable to be highly subjective.

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1/27/2012 05:28:00 pm | |

Friday, November 26, 2010 

In which I admit getting it wrong twice in two days.

Among the more puzzling seeming attacks on Elwyn Watkins featured in Phil Woolas's election literature was the one featured on the page containing his personal address to Oldham East and Saddleworth's voters. In what I foolishly imagined to be something approaching a joke, Woolas's pseudo newspaper promised that next week they could read Watkins' plans "to scrap the Geneva convention".

It says something about the battle being joined in the constituency that rather than being an attempt at a light-hearted jibe at their opponent, Watkins in fact did respond when asked that he'd rip up not only the Geneva convention, but also the European Convention on Human Rights if it would mean that he'd be able to deport asylum seekers back to "their oppressive country" if they'd broken the law here. Asked by members of his own party to clarify his views, he finally got around to responding to them today:


Clearly there are other considerations in the case of people who have been granted asylum because it is likely their lives would be seriously endangered if they return to their home country.

Nonetheless, the position of the minority who abuse asylum is a genuine concern for local people, many of whom have raised it repeatedly with politicians of all parties.

It is not good enough to sweep these concerns under the carpet as Labour have done for 13 years. To not discuss these issues openly when they are of genuine concern to many local people allows extremist parties to get a foot in the door, and that’s something none of us want.

I welcome the coalition government’s commitment to a Commission to investigate a British Bill of Rights, with the express intention of clarifying how our commitment to the European Convention on Human Rights, the Geneva Convention and other international agreements best operate within British law and to ‘promote a better understanding of the scope of these obligations and liberties’.

Which, as many will note, is almost exactly what Woolas himself has argued. By not saying that we'll deport asylum seekers back to their home country if they break the law, regardless of concerns for their safety, we'll allow the British National Party to take advantage. Or put another way: unless we adopt the British National Party's policies, we'll lose votes to them.

Watkins' attempt at outdoing Woolas from the right seems sadly to have been unsuccessful first time round, as the Liberal Democrat vote in the constituency fell by almost 300 ballots on their 2005 performance (doubtless they would claim as a result of Labour's dirty tricks), with the Tories and UKIP the main beneficiaries. The BNP share of the vote increased by 0.8%, but it was still way down on what they achieved in 2001, the year of the riots. Quite whether Liberal Democrats will come out and support someone who hasn't retracted his views when (or if) the by-election eventually takes place should be fascinating.

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11/26/2010 10:03:00 pm | |

Thursday, October 22, 2009 

A very much precendented case of newspaper hyperbole.

Last night Keir Starmer, the head of the Crown Prosecution Service, gave his usual annual lecture to the public prosecution service. It was a typical lawyerly sermon, touching on both human rights and the independence of the prosecutors. Those who were there and awake probably didn't give it a second thought; Starmer gave a decent defence of the Human Rights Act, but hardly the strongest and most detailed one ever. The Telegraph however thought that this was somehow worthy of a splash. "An unprecedented attack", it bellowed, and since then the usual Tory suspects, the two Davies', have added their voices at this apparent broadside at Conservative policy.

Starmer, as it happened, didn't so much as mention the Conservatives, probably because he wasn't just attacking the Tories but also Labour. Here is what he did say:

However, one cannot escape, particularly in recent months, the debate that has emerged around the extent to which it is appropriate - and these are my words here - to repatriate the Human Rights Act and make it "more British."

While the Tories have promised to repeal the HRA and introduce a "British" Bill of Rights in its place, without of course providing any detail whatsoever as to what these rights would be and which might be different to those enshrined in the HRA, Labour has also continued to talk about a bill of Rights and Responsibilities, even though it has been shelved for now. These Rights and Responsibilities, Jack Straw hoped, would give a British feel to the HRA. It doesn't matter that, as Starmer points out, the European Convention of Human Rights, on which the HRA is based, was mainly drafted by us Britishers, because it's "European" in origin this somehow infers that it's a foreign creation imposed on us. The Sun, the main campaigner for a repeal of the HRA, has so often mistakenly referred to the ECHR as being a construct of the European Union when it is not and is entirely separate from it that it's difficult to believe it isn't being done deliberately.

The main flaw with any plan to repeal the HRA, something which Starmer doesn't mention, is that it's difficult to believe that we would also then leave the ECHR in its entirety, something we would have to do to make sure that the "criminals' charter" doesn't interfere with our law in any way, shape or form. All repealing the HRA will do is mean that breaches of the ECHR will not be able to heard in our own courts; instead those seeking redress will have to go to Strasbourg, and wait potentially years for their case to be heard, such is the backlog which has built up there and continues to mount. As Starmer argues, it's absurd that rights which the rest of Europe has never had any problem with should "stop in the English Channel". After all, even Russia is signed up to ECHR, even if it isn't as proactive in falling into line with its rulings as the more democratic nation states of Europe are. The closest Starmer gets to really attacking those who wish to do away with the HRA is this line:

And it would be to this country's shame if we lost the clear and basic statement of our citizens' human rights provided by the Human Rights Act on the basis of a fundamentally flawed analysis of their origin and relevance to our society.

It doesn't really help the Tories' cause that Starmer is entirely right. The main reason why the Conservatives want to get rid of the HRA is not because it's a criminals' charter or any of the other things which its critics say it is, but because from the very beginning the press, and especially the Sun and the Daily Mail, have been worried about its implications for their business model. Article 8, the right to privacy, has meant that the tabloids can no longer be certain that their celebrity stories and sex scandals will get into the papers unmolested, or if they do, that they won't then be brought up before the beak afterwards. There is, it must be noted, potential for abuse of Article 8, but this is slight when compared to the overall benefits which the legislation as a whole brings. In any case, the real threat to press freedom is not Article 8 but our libel laws and the tenacity of the libel firms and their pursuit of "super-injunctions", as last week's assault by Carter-Fuck on behalf of Trafigura showed. The supposed "madness" which the HRA has brought is partially dealt with by Starmer, although not fully:

A police force unable to circulate a photo of a wanted, dangerous and violent criminal because it might breach his Article 8 rights to privacy? My advice - go ahead - it is essential to protect the public.

Unelected judges can now tell Parliament that their laws need not be enforced? No - judges cannot strike down legislation.

Human Rights mean that school teachers cannot enforce discipline at school? No - it is domestic legislation - section 548 of the Education Act 1996 - passed 2 years before the Human Rights Act - that banned corporal punishment in schools. Interestingly enough, it is section 93 of the Education and Inspections Act 2006 - passed 8 years after the Human Rights Act - that now allows school teachers to use reasonable force to prevent a pupil from committing an offence.

It is often in the interests of those who want to debase a principle to chip away at it by citing examples of its occasional misapplication. We should all take care to examine critically the so-called restrictions brought about by the Human Rights Act and consider where the misunderstanding truly lies before condemning a constitutional instrument that has provided legitimate comfort to so many.


Some of these I've touched on before, but it's indicative of the misinformation which surrounds the HRA that the Telegraph in its report repeats the myth that Learco Chindamo, murderer of headteacher Philip Lawrence, couldn't be deported back to Italy when he finished his sentence because of the HRA. It was in fact because of the EU's 2004 directive on citizenship, but as usual the initial myth has become fact.

Has Starmer though strayed into politics with his pronouncements, something that the head of the CPS shouldn't be doing? Despite the Telegraph's suggestion, the previous head of the CPS, Ken Macdonald, did something rather similar in a speech to the Criminal Bar Association, where he made clear his view that terrorists should always be treated as criminals, and that there was no such thing as a "war on terror", something uncontroversial now, but rather more heated back in 2007 when the attempt to ram through 90 days without charge was fresh in the memory. Macdonald also made clear on a number of occasions that he felt 28 days detention without charge for terrorist suspects was sufficient, something which was hardly popular with the government, and which was definitely straying into politics. Few now object when the police demand new powers, although they should; why shouldn't the head of CPS express his view that the Human Rights Act shouldn't be abolished? Is it that it's only when it's the government that it's critiquing that it's OK, when if it's (perhaps) the opposition that it isn't?

The Tory plan to repeal the HRA has always struck me as something which they're likely to forget about once they actually do get in power. Labour has thrashed around hopelessly with the Rights and Responsibilities idea, and if you really believe that the Tories are more suited to constitutional change for the better, I don't think you've been paying enough attention. It's true, as Henry Porter has argued repeatedly, that the HRA has not prevented this government from its attacks on civil liberties, but the key to that is not more legislation, but better governance in general. It seems just as unlikely we will get that from the Tories.

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10/22/2009 08:50:00 pm | |

Wednesday, February 18, 2009 

Abu Qutata?

The somewhat surprising decision by the House of Lords to overturn Abu Qatada's successful appeal against his deportation to Jordan is a faintly disturbing one. Qatada's appeal, although based on what he claims would be breaches of various articles of the European Convention on Human Rights, was only upheld on article 6, the right to a fair trial. The Special Immigration Appeals Committee, which hears evidence in secret and where the appellants are represented by special advocates, had already held that despite Jordan's undoubted deficiencies in its legal system, Qatada's deportation could only be thrown out if there was likely to be a "flagrant" breach of his right to a fair trial under article 6.

The law lords, in turn, have agreed with the initial decision and threw out the appeal court's ruling that SIAC had erred in not putting enough weight on the possibility that the evidence against Qatada was the result of torture. Lord Phillips, in the ruling, argues (paragraph 153):

I do not accept, however, the conclusion that he has derived from this, namely that it required a high degree of assurance that evidence obtained by torture would not be used in the proceedings in Jordan before it would be lawful to deport Mr Othman to face those proceedings. As Buxton LJ observed, the prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair. Rather it is because “the state must stand firm against the conduct that has produced the evidence". That principle applies to the state in which an attempt is made to adduce such evidence. It does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect unless it has a high degree of assurance that evidence obtained by torture will not be adduced against him in Jordan. What is relevant in this appeal is the degree of risk that Mr Othman will suffer a flagrant denial of justice if he is deported to Jordan. As my noble and learned friend Lord Hoffmann said in Montgomery v H M Advocate [2003] 1 AC 641, 649

“…an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article 6(1) lies not in the use of torture (which is, separately, a breach of article 3) but in the reception of the evidence by the court for the purposes of determining the charge".


The reason why this decision is so troubling is obvious: the Lords have not only ruled that they accept that the trial Qatada is likely to face in Jordan would not reach the standards we would demand under article 6, but also that it's additionally likely that the evidence against him is the product of torture, as he himself claims. This however does not still add up to what the Lords would consider to be a "flagrant" breach of article 6, which is the threshold at which deporting Qatada to Jordan would be unlawful.

Qatada is quite understandably taking his case to his last port of call, the European Court itself, where the ruling could quite possibly turn out to be another landmark, similar to Chalal vs United Kingdom. Nothing should as yet be ruled out, as the House of Lords ruling is in itself something of a surprise, and one which has been criticised by all the main human rights groups.

It has to be said that it is a horrifically difficult decision to have to make, one which Lord Hope authoratitavely comments on at the beginning of his own argument, something well worth quoting in full:

209. Most people in Britain, I suspect, would be astonished at the amount of care, time and trouble that has been devoted to the question whether it will be safe for the aliens to be returned to their own countries. In each case the Secretary of State has issued a certificate under section 33 of the Anti-terrorism, Crime and Immigration Act 2001 that the aliens’ removal from the United Kingdom would be conducive to the public good. The measured language of the statute scarcely matches the harm that they would wish to inflict upon our way of life, if they were at liberty to do so. Why hesitate, people may ask. Surely the sooner they are got rid of the better. On their own heads be it if their extremist views expose them to the risk of ill-treatment when they get home.

210. That however is not the way the rule of law works. The lesson of history is that depriving people of its protection because of their beliefs or behaviour, however obnoxious, leads to the disintegration of society. A democracy cannot survive in such an atmosphere, as events in Europe in the 1930s so powerfully demonstrated. It was to eradicate this evil that the European Convention on Human Rights, following the example of the Universal Declaration of Human Rights by the General Assembly of the United Nations on 10 December 1948, was prepared for the Governments of European countries to enter into. The most important word in this document appears in article 1, and it is repeated time and time again in the following articles. It is the word “everyone". The rights and fundamental freedoms that the Convention guarantees are not just for some people. They are for everyone. No one, however dangerous, however disgusting, however despicable, is excluded. Those who have no respect for the rule of law - even those who would seek to destroy it - are in the same position as everyone else.

211. The paradox that this system produces is that, from time to time, much time and effort has to be given to the protection of those who may seem to be the least deserving. Indeed it is just because their cases are so unattractive that the law must be especially vigilant to ensure that the standards to which everyone is entitled are adhered to. The rights that the aliens invoke in this case were designed to enshrine values that are essential components of any modern democratic society: the right not to be tortured or subjected to inhuman or degrading treatment, the right to liberty and the right to a fair trial. There is no room for discrimination here. Their protection must be given to everyone. It would be so easy, if it were otherwise, for minority groups of all kinds to be persecuted by the majority. We must not allow this to happen. Feelings of the kind that the aliens’ beliefs and conduct give rise to must be resisted for however long it takes to ensure that they have this protection.


That's around as detailed and sound an argument against the tabloid case for kicking them out immediately that could possibly be made. It's therefore a shame that Lords have effectively ruled that both unfair trials and evidence obtained by torture, as long as both occur outside the countries which have signed up to the ECHR and as long as the breach is not deemed to be "flagrant" are in some way acceptable. It's true that this is not their argument, which is as legally sound as it could possibly be, but that is in effect what they have decided. It comes, as we have seen, at a time when our own connivance with torture is being exposed as never before, when questions are being raised about how deeply involved we have been during the initial stage of the so-called war on terror with almost routine breaches of international law. It gives the impression, however undeserved, that our own values concerning such practices are becoming more jaded and diluted just when the opposite should be the case.

Fundamentally, the extended legal drama concerning Qatada should not have ever even began. If Qatada is as dangerous as the government claims he is, and if he is indeed guilty of inciting racial hatred and radicalising Muslims as he is accused of doing, the question remains why he cannot be tried here. Similarly, we still don't know just how involved Qatada was with our security services, when there are claims in the public domain that he was a double agent, albeit one it seems who is still reasonably well respected within takfirist jihadist circles. If the evidence against him cannot currently be considered outside of closed sessions, then intercept evidence needs to be introduced, although it needs to be in any event urgently. Both of these things should have been considered and potentially implemented before we resorted to simply getting rid of him, back to a country with a poor human rights record that by our own courts' admission would not reach our own standards regarding a fair trial. Instead we seem to be making compromises regarding torture that we need not be. That is an indictment of our politicians, rather than our courts of law.

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2/18/2009 11:34:00 pm | |

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