Leading article: Abu Qatada's hard case is making for good law

Theresa May has been wise not to defy the judgment of the European Court
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The Independent Online

It is desirable, and right, that Abu Qatada, a man once described by a judge as Osama bin Laden's right-hand man in Europe, should be expelled from Britain as soon as possible. But the Government has been wise not to appeal against the judgment of the European Court of Human Rights that blocked his deportation to stand trial for terrorism in Jordan.

The grounds the court gave for its ruling in January were that returning Mr Qatada would breach his right to a fair trial under Article 6 of the European Convention on Human Rights, because evidence obtained by torture might be used against him. It was the first time the Strasbourg court had ruled that someone cannot be removed not because he is at risk of torture, but because others may have been so treated. That was a correct decision. Defendants must be protected from allegations based on unreliable evidence – even when that does not suit British political interests.

Prompted, it appears, by the wording of the court's judgment, the Home Secretary, Theresa May, asked the Jordanian government for guarantees that torture evidence would not be used if Mr Qatada were put on trial. These, it appears, have now been given and even written into the Jordanian constitution. An undertaking has also been given that the trial will be held in a civilian, not a military, court. And two leading witnesses have been released from prison with pardons, which means they cannot be rearrested even if they incriminate themselves in testifying against Mr Qatada. On the face of it these measures sound substantial, though human-rights lawyers will want to scour the details when they are made public –not least to determine whether the facts correspond with Jordan's claim that it has banned torture.

Due process and the rule of law are paramount here – which is why Ms May was right to resist the siren voices from the Tory backbenches which called for her to ignore the European Court and act unilaterally. Governments, of all institutions, as she said, must be seen to obey the law.

That does not mean that the law cannot be improved. Representatives of the Council of Europe's 47 members meet today in Brighton to consider changes to the operations of the European Court of Human Rights. As the court's backlog of 150,000 cases shows, change is needed. But revisions to its principles of subsidiarity – the idea that as many decisions as possible should be left to national courts – and "margin of appreciation" – the scope that domestic courts have for interpreting the European Convention on Human Rights – must proceed with great care. They must not be driven by Eurosceptic hysteria about the court's supposed bias. Its decision last week to approve the extradition of Abu Hamza and four other alleged terrorists to face trial in the United States should give the lie to such silliness.

Yet reforms are needed to deal with the fact that more than a quarter of the backlog is down to petitions to the court from one country, Russia. Applications to the court should not be considered if they are substantially the same as matters previously considered by the court. Better measures are clearly needed for screening out cases at lower levels.

Lawyers for Mr Qatada may well succeed in their application – likely to be heard at an expedited hearing of the Special Immigration Appeals Commission – that their client should be granted bail, under the 22-hour curfew which was maintained until his rearrest yesterday. But the course the Home Secretary set out yesterday represents significant progress, and she is to be commended for going to such lengths as she has to ensure that the Government upholds the law.