Pete_London
Inactive User
Yesterday’s European Court ruling against the deportation of the cleric Abu Qatada piles further insult on to a decade-long legal battle that has tied British courts in knots.
Three years ago this week, a British man, Edwin Dyer, was kidnapped by nomads in north-west Africa, where he was working, and handed over to al-Qaeda militants based in Mali. They threatened to kill him if the British government refused to release the radical Muslim cleric Abu Qatada from prison, where he was awaiting deportation.
A few months later, Mr Dyer was murdered in what Gordon Brown, then prime minister, called “an appalling and barbaric act of terrorism”. We cannot be sure that releasing Qatada would have spared Mr Dyer, since the extremists were also demanding a ransom. In any case, it is the British government’s long-stated policy not to deal with terrorists.
But the question that arose then, and still applies, is this: why was Abu Qatada even in the country to be included in a potential bargain with extremists? Since he was identified as Osama bin Laden’s “ambassador in Europe” after the 9/11 attacks on America, British authorities have been trying to deport him to his native Jordan.
Yet for more than 10 years, every effort to do so has been thwarted by human rights laws. In 2009, it looked as though he would be sent packing when the highest court in the land ruled that his deportation would be lawful, the government having gone to considerable efforts to extract a guarantee from Jordan that Qatada would not be ill‑treated if he was returned. But he appealed to the European Court of Human Rights, whose judges yesterday said that in their opinion he could still face an unfair trial, since evidence against him might have been extracted under torture. He could not, therefore, be removed.
In doing this, the European Court moved the legal goalposts: it accepted that he would not be tortured personally – which would prevent his deportation under Article 3 of the convention – but ruled instead that his removal would be a breach of Article 6, the right to a fair trial. At every turn, Britain has found itself hamstrung trying to get rid of a foreign national considered to be a risk to public safety. How has this come about?
Principally, it is to do with the warped application of the European Convention on Human Rights (ECHR), which was drawn up after the Second World War as a response to the atrocities in Europe. The Abu Qatada saga is an affront to the enlightened attitudes that inspired the convention; it was never envisaged by its architects, many of them British, that it would end up making it impossible for democracies to defend themselves from those who would wish them harm.
This story began in 1993 when Abu Qatada, a Palestinian wanted for terrorist crimes in Jordan, arrived in Britain on a forged United Arab Emirates passport. He was allowed to settle in Britain as a political refugee precisely because this country has a record of offering sanctuary to the persecuted. This generosity also turned London in the 1990s into a haven for Islamists who had no love for the West, nor for what they regarded as its decadent politics.
By the time the threat was catastrophically apparent in 2001, the capital was derisively being referred to as “Londonistan”, with Abu Qatada as fundamentalist-in-chief. According to security documents, he was responsible for “facilitating the recruitment of young Muslims for jihad”. One file stated: “He has been linked to support of terrorist and extremist activity, including support for anti-US terrorist planning in Jordan during the millennium [celebrations]. He has been a focal point for extremist fund-raising, recruitment and propaganda.”
Another added: “As soon as Abu Qatada had arrived in London and had applied for asylum, he started supporting jihad by recruiting for al-Qaeda. Abu Qatada was considered a major figure for al-Qaeda.”
He went on the run after 9/11 but was arrested in 2002 and held in Belmarsh top-security prison, along with other Islamists the Government wanted to remove but who could not be tried in this country, not least because the security service feared jeopardising its intelligence sources. In any case, Britain did not want to try them but to get rid of them.
There then began an extraordinary legal and political battle that has tied our courts in knots and undermined the rights of Parliament to decide who should be allowed to stay in the country. Qatada’s detention was ruled unlawful on the grounds that since his deportation was blocked under Article 3 of the ECHR, he faced indefinite incarceration. He was even awarded £2,500 compensation for unlawful imprisonment.
In response, the last Labour government introduced a system of control orders to keep Qatada and other Islamists under house arrest. However, this was ruled unlawful by the courts here; it amounted to imprisonment without trial, so the restrictions had to be loosened.
Undaunted, the Home Office tried another tack. Officials opened talks with Jordan to obtain assurances that he would not be tortured if sent back. When these were forthcoming, the Law Lords in 2009 agreed his deportation should proceed.
Yet, three years on, that judgment has now been overturned by the European Court. The Government has three months to appeal but the chances of success are fanciful. In the meantime, Qatada will remain in jail. And here is the most bizarre aspect of this affair. The reason he is in prison is because he breached the conditions of his control order. His offence was that he was suspected of trying to leave the country – the very thing we have wanted him to do for 10 years.
This, then, is the topsy-turvy world that the ECHR has produced – and the latest ruling goes much further than before, when the ban on deportation was effected under Article 3, where someone might face “inhuman or degrading treatment or punishment”. As the Tory MP Dominic Raab observed yesterday: “The Strasbourg court has imposed a new category of restrictions on our ability to deport serious criminals and suspected terrorists. Placing the burden on Britain to ensure foreign criminals and terrorist suspects are tried according to UK standards in their home countries will impede our capacity to deport those who pose a risk in this country.
“This is a classic example of mission creep, with judicial legislation from Strasbourg riding roughshod over decisions that should be determined by UK courts.”
In fact, this form of judicial expansionism was something explicitly rejected by Lord Phillips, the head of the Supreme Court, who said that evidence of torture in another country “does not require the United Kingdom to retain in this country, to the detriment of national security, a terrorist suspect”.
But what he says does not count, it seems. The judgments of our courts are trumped by a 47-member body set up under the Council of Europe (not the EU), whose president, Sir Nicolas Bratza, is a British lawyer who has never held a senior judge’s job in this country.
Indeed, some of his eminent colleagues in Britain think the problem lies not so much with the European Convention on Human Rights as with the way it is applied by the Strasbourg body. Lord Hoffman, a former Law Lord, said the European Court had been unable to resist the temptation to “aggrandise its jurisdiction” by laying down a “federal law of Europe”. The court should not be allowed to intervene in the detail of domestic law, he added.
But this is exactly what has happened under the ECHR. What began as an attempt to limit the power of the state in relationship to the individual by drawing upon British concepts of liberty has been transformed into a corpus of immutable rights that defy rational expectation. Even the 1951 Refugee Convention, under which Qatada was allowed into Britain in the first place, specifically states that asylum “cannot be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is”.
After all, if you invite someone into your home to protect them from harm, only to find they threaten your well-being, are you not entitled to make them leave? Moreover, paying for them to stay – Qatada and his large family live on benefits – simply adds insult to injury.
Successive prime ministers have voiced indignation about this state of affairs but have merely highlighted their impotence in doing so. Theoretically, the European Court has no power to enforce its judgments; but over the years, politicians have agreed to accept them and the Human Rights Act now makes the rulings justiciable by our own courts.
While some reforms are being negotiated through the Council of Europe, which Britain currently chairs, these are designed to reduce the workload by preventing trivial matters being referred. The case of Abu Qatada is by no means trivial. And those human rights activists who question whether his presence in this country poses a threat should remember the fate of Edwin Dyer.
Source Abu Qatada: once again, he has made fools of us - Telegraph
By Philip Johnston
8:00PM GMT 17 Jan 2012
Last edited:
