"I sometimes wish I could put him on a plane and take him to Jordan myself," said David Cameron last week about Abu Qatada. Now that would be an odd-couple road movie that people would pay to see. But in those words, the Prime Minister encapsulated the paradox of human rights law. Qatada is not the sort of person we want to have around: he is not British, so why can't we just sling him out?
The short answer is: because we are signatories to the European Convention on Human Rights. But that is too simple and encourages people, including me, to think that there must be a simple way of deciding who we want in this country and who we don't.
Still, it is the right place to start. So let us look at the convention, which British lawyers helped to draft and of which the UK was a founding signatory when Clement Attlee was prime minister in 1950. It came into force three years later under Winston Churchill. Nothing wrong with it: fair trial, freedom of expression, no torture.
So it must be the European Court of Human Rights that is the problem. It has tended to extend its reach and to interpret the convention in ways that its drafters did not intend. There is no reason why British courts should not decide on cases such as Qatada's, especially now that the convention rights have been incorporated into British law in the Human Rights Act. Part of the point of the act, long ago when the right-thinking consensus was in favour of it, was to reduce the need to go to the Strasbourg court.
The response to cases such as Qatada's should be to try to constrain the court. By a remarkable coincidence, it is the UK's turn to chair the Council of Europe, the body (predating the European Union) that supervises the court. Our turn comes once every 23.5 years, because each of 47 countries has six months in the chair. We are the last in alphabetical order. When our turn ends next month, it's Albania, followed by Andorra, Armenia, Austria and Azerbaijan.
Cameron saw a chance to reform the court, and British plans to do so were drawn up, watered down and agreed at a grand conference in Brighton last week. The changes were both a diplomatic triumph, in that they were the most that could be achieved, and a political defeat, in that getting all 47 countries to agree to big changes is impossible.
All that the Prime Minister has achieved is that the court may now take up slightly fewer cases. A secondary effect of the conference may be that the court feels under greater pressure to avoid judgments that people think are a conspiracy against reason. When the court ruled last year that the British law denying the vote to prisoners was contrary to the convention, many MPs on both sides of the House of Commons were infuriated. Whatever you think about whether prisoners should have the vote – and I think that they should not – there is a powerful case that this is a question of public policy that should be decided by Parliament. I suspect that the next time that sort of question arises, the court might be a little wary of provoking such a backlash.
At the time of the ruling on prisoners' voting rights, I thought the answer might be for the UK to reject the authority of the Strasbourg court while remaining a signatory to the convention. After all, France and Italy seem to ignore rulings that they don't like and the sky has not fallen in on those countries.
I was disabused of this simplistic notion at a seminar last week organised by Policy Exchange, a think tank that is pursuing the radical idea of asking what, practically, can be done about British frustrations with the court.
First, I was told I needed to get my facts straight. France did not defy the court in sending two undesirables to Mali and Algeria earlier this month. French law is different from ours in that appeals against deportation are heard after removal. In practice, that means that, once someone is on a plane, that is usually the end of the matter. British law is more respectful of the principle of innocent until proved guilty – with guilt not proven until appeals are exhausted. There is something to be said for that.
Italy did defy the court in sending its undesirable, another alleged terrorist, to Tunisia; last month the court ruled that Italy should pay £12,500 in damages, which is the only penalty it can apply. But it does not seem right to sign up to the court and then to ignore its rulings.
Nor does it make sense to do what I wanted, which is to reject the court while adhering to the convention, because the convention enshrines the right to take one's case to the court. Rejecting the whole convention would be an odd and rather big decision for this country to take. In any case, all the rights of the convention have been written into European Union law since 1993, and are becoming enforceable at the EU court. Perhaps Britain should leave the EU, but that certainly does not feel like the sort of decision that should be taken just because we do not like a few of the rulings of a court that is separate from the EU.
So the short answer to why we can't throw out Qatada easily is that the European Court of Human Rights won't let us. The longer answer is: because we are British and we believe in the rule of law.Reuse content