Wednesday, February 18, 2009 

Abu Qutata?

The somewhat surprising decision by the House of Lords to overturn Abu Qatada's successful appeal against his deportation to Jordan is a faintly disturbing one. Qatada's appeal, although based on what he claims would be breaches of various articles of the European Convention on Human Rights, was only upheld on article 6, the right to a fair trial. The Special Immigration Appeals Committee, which hears evidence in secret and where the appellants are represented by special advocates, had already held that despite Jordan's undoubted deficiencies in its legal system, Qatada's deportation could only be thrown out if there was likely to be a "flagrant" breach of his right to a fair trial under article 6.

The law lords, in turn, have agreed with the initial decision and threw out the appeal court's ruling that SIAC had erred in not putting enough weight on the possibility that the evidence against Qatada was the result of torture. Lord Phillips, in the ruling, argues (paragraph 153):

I do not accept, however, the conclusion that he has derived from this, namely that it required a high degree of assurance that evidence obtained by torture would not be used in the proceedings in Jordan before it would be lawful to deport Mr Othman to face those proceedings. As Buxton LJ observed, the prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair. Rather it is because “the state must stand firm against the conduct that has produced the evidence". That principle applies to the state in which an attempt is made to adduce such evidence. It does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect unless it has a high degree of assurance that evidence obtained by torture will not be adduced against him in Jordan. What is relevant in this appeal is the degree of risk that Mr Othman will suffer a flagrant denial of justice if he is deported to Jordan. As my noble and learned friend Lord Hoffmann said in Montgomery v H M Advocate [2003] 1 AC 641, 649

“…an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article 6(1) lies not in the use of torture (which is, separately, a breach of article 3) but in the reception of the evidence by the court for the purposes of determining the charge".


The reason why this decision is so troubling is obvious: the Lords have not only ruled that they accept that the trial Qatada is likely to face in Jordan would not reach the standards we would demand under article 6, but also that it's additionally likely that the evidence against him is the product of torture, as he himself claims. This however does not still add up to what the Lords would consider to be a "flagrant" breach of article 6, which is the threshold at which deporting Qatada to Jordan would be unlawful.

Qatada is quite understandably taking his case to his last port of call, the European Court itself, where the ruling could quite possibly turn out to be another landmark, similar to Chalal vs United Kingdom. Nothing should as yet be ruled out, as the House of Lords ruling is in itself something of a surprise, and one which has been criticised by all the main human rights groups.

It has to be said that it is a horrifically difficult decision to have to make, one which Lord Hope authoratitavely comments on at the beginning of his own argument, something well worth quoting in full:

209. Most people in Britain, I suspect, would be astonished at the amount of care, time and trouble that has been devoted to the question whether it will be safe for the aliens to be returned to their own countries. In each case the Secretary of State has issued a certificate under section 33 of the Anti-terrorism, Crime and Immigration Act 2001 that the aliens’ removal from the United Kingdom would be conducive to the public good. The measured language of the statute scarcely matches the harm that they would wish to inflict upon our way of life, if they were at liberty to do so. Why hesitate, people may ask. Surely the sooner they are got rid of the better. On their own heads be it if their extremist views expose them to the risk of ill-treatment when they get home.

210. That however is not the way the rule of law works. The lesson of history is that depriving people of its protection because of their beliefs or behaviour, however obnoxious, leads to the disintegration of society. A democracy cannot survive in such an atmosphere, as events in Europe in the 1930s so powerfully demonstrated. It was to eradicate this evil that the European Convention on Human Rights, following the example of the Universal Declaration of Human Rights by the General Assembly of the United Nations on 10 December 1948, was prepared for the Governments of European countries to enter into. The most important word in this document appears in article 1, and it is repeated time and time again in the following articles. It is the word “everyone". The rights and fundamental freedoms that the Convention guarantees are not just for some people. They are for everyone. No one, however dangerous, however disgusting, however despicable, is excluded. Those who have no respect for the rule of law - even those who would seek to destroy it - are in the same position as everyone else.

211. The paradox that this system produces is that, from time to time, much time and effort has to be given to the protection of those who may seem to be the least deserving. Indeed it is just because their cases are so unattractive that the law must be especially vigilant to ensure that the standards to which everyone is entitled are adhered to. The rights that the aliens invoke in this case were designed to enshrine values that are essential components of any modern democratic society: the right not to be tortured or subjected to inhuman or degrading treatment, the right to liberty and the right to a fair trial. There is no room for discrimination here. Their protection must be given to everyone. It would be so easy, if it were otherwise, for minority groups of all kinds to be persecuted by the majority. We must not allow this to happen. Feelings of the kind that the aliens’ beliefs and conduct give rise to must be resisted for however long it takes to ensure that they have this protection.


That's around as detailed and sound an argument against the tabloid case for kicking them out immediately that could possibly be made. It's therefore a shame that Lords have effectively ruled that both unfair trials and evidence obtained by torture, as long as both occur outside the countries which have signed up to the ECHR and as long as the breach is not deemed to be "flagrant" are in some way acceptable. It's true that this is not their argument, which is as legally sound as it could possibly be, but that is in effect what they have decided. It comes, as we have seen, at a time when our own connivance with torture is being exposed as never before, when questions are being raised about how deeply involved we have been during the initial stage of the so-called war on terror with almost routine breaches of international law. It gives the impression, however undeserved, that our own values concerning such practices are becoming more jaded and diluted just when the opposite should be the case.

Fundamentally, the extended legal drama concerning Qatada should not have ever even began. If Qatada is as dangerous as the government claims he is, and if he is indeed guilty of inciting racial hatred and radicalising Muslims as he is accused of doing, the question remains why he cannot be tried here. Similarly, we still don't know just how involved Qatada was with our security services, when there are claims in the public domain that he was a double agent, albeit one it seems who is still reasonably well respected within takfirist jihadist circles. If the evidence against him cannot currently be considered outside of closed sessions, then intercept evidence needs to be introduced, although it needs to be in any event urgently. Both of these things should have been considered and potentially implemented before we resorted to simply getting rid of him, back to a country with a poor human rights record that by our own courts' admission would not reach our own standards regarding a fair trial. Instead we seem to be making compromises regarding torture that we need not be. That is an indictment of our politicians, rather than our courts of law.

Labels: , , , , , , , , , , ,

Share |

Thursday, January 29, 2009 

Lording it over us all.

The old cliché regarding political scandals was that Conservatives gave in to temptation over sex, the Profumo affair probably the most notorious, although Cecil Parkinson and David Mellor, not to mention Alan Clark, down the years gave it a run for its money, while Labour MPs sold their souls for money. Perhaps it could be put down to the narrowing of difference between the Tories and Labour that Robin Cook, Ron Davies and David Blunkett all became known for their own sexual dalliances, but few will now forget the loans for peerages affair.

With that in mind, it's no real surprise that the Lords themselves have at long last come under scrutiny. They are the last real target for scandal-mongering: we've had the expenses probes, the immigration and foreign criminal affairs, the hysteria over paedophiles in schools and the already mentioned cash for coronets. Like with the expenses fiddles and the nods and winks in exchange for donations or otherwise leading to peerages and honours, this has also been going on for years. For the most part we've been concerned with the gravy train whereby ministers who find themselves out in the cold suddenly discover that the companies which had an interest in their policy area are prepared to pay for their advice: most notably David Blunkett, having began the ID card process, has been advising the companies bidding for the contract, while at the same time writing newspaper articles and letters without bothering to inform his readers of his own interests; Patricia Hewitt, who did such a wonderful job as health secretary, soon joined Boots and Cinven, involved with BUPA, while also finding time to work for BT, having additionally formerly been a trade minister; then there was Alan Milburn, another former health secretary, who became an advisor to... Pepsico. There are dozens of other examples.

Part of the reason why anyone could have seen this eventually coming is that this government has been more dependent on unelected ministers than any other in the past. The Department for Business, Enterprise & Regulatory Reform has only three elected ministers; the rest are all Lords, including the prince of darkness himself. Combined with the removal of hereditaries, who often had their own (inherited) fortunes, and the fact that the Lords has now been stuffed even further with first Blair's and now Brown's cronies, as well as those who have retired from their constituency so that young blood can take over their seat in exchange for a seat in the Lords, it's small wonder that the entrapment practised by the Sunday Times hadn't been tried before.

Less easy to propose is just how the Lords should be reformed to reduce the chances of this happening to a minimum. Of course, that the Lords should be elected is apparent, and that the second chamber is still appointed with all that entails is a continuing black mark on our democracy. The saddest thing is that by in effect abolishing the Lords as it currently exists, the end result will almost certainly mean that the second chamber will become just as party political as the Commons is, and with it will go the resistance to which much of Labour's worst legalisation has quite rightly come under. The solution, in turn to that, would be proportional representation, ensuring that no party could ever have as large a majority as Labour had between 97 and 05, and unable to rail-road through so many bad laws as they managed, but Westminster is resistant at the best of times to such sharp, shocking democratic reform, and to do two things at once would almost certainly be an affront too far.

Even with an elected second chamber, we would still have the problem of whether or not the new Lords would be paid, which they would almost certainly have to be to reduce the conflict of interests which are now becoming ever more apparent. Already there is massive resistance to paying politicians anything extra at all, which even when taking into account the generous expenses, MPs are certainly not overpaid for what is a job with long hours (if additionally long holidays) and a heavy workload for little public gratitude in return; paying the Lords, who do far less even if it's still an essential role, would be asking for trouble.

We could just write this off as an anomaly, a case of grasping peers who have already long got fat off the public trough by whoring themselves out to the private one, as Lord Taylor and Lord Truscott are the epitome of. While undoubtedly it still remains the case that we are one of the least corrupt democracies in the world, at the least there has to a mechanism by which peers can be expelled, just as they can currently be denied from taking on the ermine. When Labour tried to introduce something along these lines so that Archer could be prevented from taking to the red benches after his prison sentence, the Conservatives moved to block it, resulting in its dropping. Perhaps Blair already at that time had an inkling of what else was yet to be uncovered and so was happy to oblige; perhaps Labour was just, as usual, moving between cowardice and ruthlessness.

Labels: , , , , , , , ,

Share |

About

  • This is septicisle
profile

Links

Powered by Blogger
and Blogger Templates