When it comes to errors of law in Westminster politics, you live by the sword and you die by the sword. Teresa May, the UK home Secretary, made huge capital at her last Conservative Party Conference in 2011 by trashing the human rights judgment that, as she described it, prevented an illegal immigrant from being deported “because – and I am not making this up – he had a pet cat”. As Adam Wagner of the UK Human Rights Blog pointed out, the decision had nothing to do with the individual in question having a cat, and everything to do with the Home Office’s failure to follow its own guidance on the deportation of foreign national offenders with a settled partner in the UK. But it was served its purpose as a banner under which to unite the Tory right in loathing towards the Human Rights Act 1998. When the UK Justice Secretary Ken Clarke pointed out the error in May’s example, he was crushed beneath a band wagon of right-wing indignation.

So Mr Clarke must have been particularly pleased with himself yesterday when Ms May once again played fast and loose with the law, this time to the cost of her credibility. The Home Secretary played fast and loose with the deadlines for Abu Qatada (an extremist cleric who after 9/11 praised Osama bin Laden, pictured above left) to seek to “appeal” the January 2012 decision of the European Court of Human Rights to the Court’s Grand Chamber, and lost out in spectacular fashion. A matter of hours after Qatada was arrested pending deportation to Jordan on Tuesday, his legal team launched their appeal bid, throwing the process into disarray. The ever-affable Mr Clarke helped out his flailing colleague by telling the BBC that “I’m not quite sure what the big deal is …”.

Amid the bluster surrounding Qatada’s case, and the European Court’s decision last week that a group of individuals including Qatada’s fellow extremist cleric Abu Hamza al-Masri could be extradited from the UK to face charges in the US, it is not easy to follow these stories or the position of the European Court. This post aims to explain the main talking points which emerge from these decisions and to debunk some of the myths which have so rapidly emerged.

Firstly, there is nothing inconsistent with the Court’s treatment of the two cases. The Daily Mail has portrayed the Abu Hamza decision as a sop to UK interests, declaring the judges “must have sensed that – had they left the UK saddled with an evil terrorist fanatic like Hamza – they would have been effectively declaring war on the British establishment”. But such pragmatism, had it been in play, would have extended equally to Abu Qatada’s case, no less emotive for the UK. In reality, although both cases involve the transfer of a suspected terrorist propagandist to a third country, and both individuals sought to resist transfer on the basis of allegations that they would face inhuman and degrading treatment, the legal issues involved in the decisions are substantively different.

Abu Qatada’s application to the European Court (Othman v United Kingdom (App. No. 8139/09) (17 January 2012)) was not successful on the basis of his claim that he would suffer inhuman and degrading treatment if he was returned to Jordan (under Article 3 ECHR). The Court fully accepted that the Diplomatic Assurance that the UK negotiated with Jordan would protect him against such treatment. The Court was satisfied (at [204]) that a Jordanian organisation, the Adaleh Centre for Human Rights Studies, “would be capable of verifying that the assurances were respected”.

Instead, the European Court identified that Qatada’s right to a fair hearing (Article 6 EHCR) would be threatened if he was deported as he word face a court hearing in Jordan likely to be tainted by the use of torture evidence (at [285]):             

His is not [a] general and unspecific complaint … instead, it is a sustained and well-founded attack on a State Security Court system that will try him in breach of one of the most fundamental norms of international criminal justice, the prohibition on the use of evidence obtained by torture. In those circumstances … the present applicant has met the burden of proof required to demonstrate a real risk of a flagrant denial of justice if he were deported to Jordan.

This paragraph sums up the divide between the UK Government and the European Court. The UK government, in its efforts to deport Qatada, were concerned with the security risk he posed as an individual. By seeking diplomatic assurances regarding his treatment, the UK accepted that torture was prevalent within Jordan and sought to deal with Jordan nonetheless. The European Court, by contrast, focused on torture as “one of the most fundamental norms of international criminal justice”. Its judgment was predicated on the fact that, if Convention states were allowed to deport individuals in the knowledge that they would face a trial based on “evidence” tortured from others, they would effectively be condoning such practices in Jordan.

Abu Hamza’s case (Ahmad v United Kingdom [2012] ECHR 609) saw the claimants contend that the regime in place in “SuperMax” (highest level of security) prisons in the United States was in itself comparable to inhuman and degrading treatment. The regime in prisons like ADX Florence, the likely destination of Abu Hamza, is certainly highly restrictive, but as the UK Government pointed out, Abu Hamza was already subject to maximum security conditions in the UK (at [221]):

[A]s the applicants’ current detention in high security facilities in the United Kingdom demonstrates, the  United  States’ authorities would be justified in considering the applicants, if they are convicted, as posing a significant security risk and justifying strict limitations on their ability to communicate with the outside world. There is nothing to indicate that the United States’ authorities would not continually review their assessment of the security risk which they considered the applicants to pose.

The final sentence is particularly important – the European Court was confident that the US justice system, unlike that in Jordan, would adequately assess the threat posed by individuals like Abu Hamza and consider their conditions of detention accordingly.

When Teresa May rushed to the House of Common’s on Tuesday it was to inform MPs that she felt adequate safeguards had been extracted from Jordan to meet the demands of the European Court. In other words, for all the furore over the Qatada judgment (and on the timing of Qatada’s appeal – on which see Carl Gardner’s illuminating post on the UK Human Rights Blog), the UK had ultimately been prepared to abide by its terms. This acceptance was no doubt grudging, based on an assessment that compliance presented the fastest way to deal with the case. This is because, for all the Courts concern as to the degree that torture evidence tainted Jordan’s special courts, as Alan Travis pointed out in The Guardian on Tuesday the Court’s January ruling had not challenged the concept that the right diplomatic assurance could constitute an adequate protection:

The decision not to appeal is believed to be based on the fact that the ruling upheld the general right of the British government to try to deport international terror suspects with diplomatic assurances about their future treatment. Home Office officials feared that this important principle could be lost if an appeal to the Strasbourg court’s grand chamber was defeated.

Abu Qatada’s lawyers could see this feature of the European Court’s decision as clearly as the Home Secretary. If they could challenge the ruling on an Article 3 basis, and get the Grand Chamber to accept that diplomatic assurances were not an acceptable means of rights protection, they would completely undermine the UK’s deportation strategy in counter-terrorism cases involving foreign nationals. So ignore claims that Qatada’s legal team is simply time-wasting – they are hunting a prize that they regard as entirely worth a further appeal. The surprising factor is that the Home Office lawyers did not predict such a strategy and urge caution on Tuesday’s announcement, or equally likely, that May herself chose to ignore such advice and throw caution to the wind to once again cheer her supporters in Parliament.

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Written by Colin Murray

Colin Murray is a senior lecturer at Newcastle Law School where he specialises in national security law, legal history and public law. Alongside Roger Masterman (Durham University) he is the author of “Exploring Constitutional and Administrative Law”, a textbook on UK public law. You can contact him at colin.murray[at]ncl.co.uk or (+44) 191 2225805