Just in Time: The Future of the Rule of Law in England

This week sees the unfolding in England of two long-running legal sagas upon whose outcomes the future of the rule of law there could depend. And not just there, its  future could be affected throughout Europe and even beyond.

The first legal saga is the resumption of the British Government’s ten-year long battle to deport the radical Muslim cleric Abu Qatada back to Jordan, where he awaits trial on terror related charges.

To date, Abu Qatada, whom England  granted refugee status after he moved there from Jordan his wife and children, has successfully resisted all government efforts to deport him. He has done so by invoking his human right not to suffer torture or trial using evidence gained by its means.

During the long period in which he has been fighting this legal battle through the English and Strasbourg Courts, Qatada, along with more than a dozen other foreign terror suspects domiciled in Britain, have also been able to secure their release from custody by invoking their human right not to suffer (more than briefest period of) detention without trial.

After Britain’s Home Secretary Theresa May had obtained from Jordan all the assurances she needed to render his deportation to it lawful in her eyes, Abu Qatada was arrested in the early hours last Tuesday morning, after his arresting officers  had informed him that the deportation process against him had been resumed.

So confident was the Home Secretary that her department had finally closed all legal loopholes that had earlier enabled Qatada’s lawyers to prevent his deportation, she felt able, later that same day, to stand at the despatch box in the House of Commons from where government ministers traditionally deliver important statements, to announce, much to the general relief of all those present and much of the rest of the country, that by, the end of the month, Qatada would be on his way back to Jordan.

She had not counted on the ingenuity of Qatada’s lawyers quickly to spot and exploit a small loop-hole that had evaded both her eye and those of her legal advisors at her Department, or else that his lawyers had craftily opened up literally at the eleventh hour.

With less than an hour to go to mid-night on Tuesday, after which time which he would have forfeited all possible legal right to do so, Qatada’s lawyers submitted to the European Court of Human Rights in Strasbourg an appeal against the ruling that it had made exactly three months earlier over the legality of his deportation. It was that ruling which had formed the legal basis on which the Home Secretary had been acting in resuming his deportation.  

In its January ruling, the European Court ruling had found against the legality of Qatada’s deportation to Jordan should it expose him to risk of trial using evidence obtained through torture. At the same time, in a separate ruling, the Court found in favour of the British Government’s claim, that, in returning Qatada to Jordan to face trial, he would not be exposed to any risk of undergoing torture.

Having already obtained assurances from Jordan that Qatada would not suffer torture should he be returned there, the Home Office decided not to appeal against the European Court’s January ruling against it. Instead, during the three month period in which parties involved in European Court cases may appeal against rulings by it, the Home Office sought and obtained from Jordan further enough additional assurances, to satisfy it that no evidence obtained through torture would be used against Qatada at any trial that he might undergo upon his return there.

Armed with those additional assurances, and safe in the apparent knowledge that Qatada had lodged no appeal against the Court’s January ruling during the three month period in which he could, the Home Office felt able and was ready to resume his deportation the moment that the three month appeal ended which, the Home Office believed, lapsed at midnight on Monday evening. It was therefore only a quarter of an hour later, at the very start of Tuesday that Qatada was rearrested with a view to his deportation.

It turns out, however, that the Home Secretary’s confidence was misplaced in the legality of the resumption of his deportation then.

Because of some still as yet unresolved uncertainty as to when the period of appeal against January’s Court ruling ended — at mid-night on Monday the 16th, as Theresa May and her team believed, or at midnight of the following day, as Qatada’s lawyers claim, they have been able to lodge an appeal with the Strasbourg Court against its January ruling against him. They did so on Tuesday minutes before midnight. By so doing, they have been able to delay Qatada’s deportation, while the Court decides whether his appeal was in time, and, if it was, until it is heard by the Court,

Either way, there will be considerable further delay, much to the embarrassment and consternation of the government. For such a delay risks Abu Qatada’s absconding, should, as in the past,  his lawyers succeed in invoking his right to freedom from detention without trial so as to secure his release from custody pending the outcome of his appeal.

Worse still, should his appeal be heard, it risks reopening the whole matter and so the Home Office losing such progress that it has recently made in establishing the legal basis on which it might lawfully deport foreign terror suspects. Should the Court find in favour of Abu Qatada in his new appeal, no fewer than fifteen other terror-suspects whom the British authorities are currently seeking to deport might also be able to avoid deportation. The legal stakes at issue, therefore, could not possibly be higher.

It is for precisely this reason that the other train of events also being played out this week in England have great legal import. Today sees the opening in the Sussex sea-side resort of Brighton of a two-day conference of the European Council convened to review the work of the Strasbourg Court with a view to recommending ways in which the manner in which it conducts it business might be improved.

As far as it sees itself, the European Court is the bastion of human rights in Europe, especially those of its most vulnerable minorities. It is proud of its track-record and sees no reason or need to undergo any significant reforms.

Many others in Europe, not least Britain’s Prime Minister David Cameron and his fellow Conservatives, see the matter far otherwise. They believe that the Court has been guilty of excessive activism. In so having been, they claim, not only has it over-stepped the mark by unduly hamstringing national governments and overruling national courts,  it has also compromised the national security of several countries like Britain by its rulings having unduly exposed their nationals to threats of terror from foreign terror suspects in them awaiting deportation.

It was precisely to free Britain from the excesses of such activism that, in their 2010 General Election Manifesto, the Conservatives undertook, upon gaining office, ‘to replace the Human Rights Act with a UK Bill of Rights’.

The Human Rights Act, introduced by Labour shortly after it gained power in 1998, incorporated the European Convention directly into UK law, thereby making appeal to the Strasbourg court much easier for individuals there.

At the time of the 2010 general election, the common belief of many in Britain was that, if returned to office, the Conservatives would seek to repatriate legal powers to Britain the Human Rights Act had surrendered to the Strasbourg Court by replacing the Human Rights Act with a new Bill of Rights that would restore more sovereignty to Britain’s Parliament and its courts.

The hung Parliament, and resultant coalition into which the Conservatives entered with the Liberal Democrats, obliged the former to moderate their ambitions in respect of reforming the way in which human rights issues are handled in British courts. The price of obtaining support of the Lib Dems, who are far more Europhile than the Conservatives, has obliged the Conservatives to relinquish all hope and prospect during the lifetime of this Parliament of repealing the Human Rights Act. Instead, what the coalition partners undertook to do by way of human rights reform was far less ambitious and consequential. What the Agreement stated about this was

‘We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and extends British liberties.’

A nine-man Commission has indeed duly been formed, due to publish its recommendations later this year. However, if, as seems clear, those recommendations will have to fall within the constraints of the existing Convention and Human Rights Act, there seems little way in which whatever the Commission recommends by way of a Bill of Rights will be able to reverse the direction in which the judicial balance of power has for a long time been steadily tilting in Europe. This has been away from national courts and governments, towards the Strasbourg Court.

That is why the two day European Council conference beginning in Brighton today is so important for the future direction of the rule of law in Britain and Europe more generally. While European Court judges might well be in the main content with their track-record, many others in Europe besides Britain’s Conservatives are not. With David Cameron currently holding the rotating Presidency of the European Council, he has been presented in the form of today’s conference with a golden, once in a life-time, opportunity to secure agreement to significant reforms to the European Court, even to the Convention itself, if only he can secure the needed unanimous agreement to them of all 47 countries party to it.

There are several changes for the better in the workings of the Court the conference could agree that it should begin to make. First, the Court could become or be made more discriminating and selective in which cases it hears. At the moment, there is an accumulated backlog of 150,000 unheard cases. With each new month, it receives an additional 5,000 new appeals.  Second, the Court could be asked or made to allow more cases to be settled at national level.

Sadly, the prospect of securing any agreement to either change seems already badly compromised. According to the Times newspaper, drafts leaked to it of the final communique to be signed at the end of the conference tomorrow show that ‘key British proposals have been dropped or watered down, meaning the court is unlikely to see new powers to reject cases and curb its backlog.’

Britain had reportedly proposed for agreement several longer-term objectives for reform of the Court. These included several new mechanisms for resolving certain applications to it, and a proposal that the Court only be allowed to consider cases not covered under existing case law. According to the newspaper report, all these proposals have been replaced by much vaguer suggested changes.

The price of the squandered opportunity will be continued long delays in the resolution of cases like that of Qatada’s. The security risks that the unreformed European Court is posing by these delays are not confined to Britain, nor even just the other signatories of the European Convention.

Given how lax British border controls are, it is worth recalling that several terrorists have been aboard US-bound flights from Britain when attempting to blow up midair the aircraft on which they had been travelling. Even those across the Pond, therefore, have cause to be greatly concerned about how well or badly the European Court is going about its business in cases such as that of Abu Qatada’s and what the outcome of today’s conference in Brighton will be.