15th December 2023
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Those criticising human rights law and lawyers often shy away from spelling out the substance of a particular right
You may or may not remember Abu Qatada and how he once featured in British politics.
About ten or so years ago, he was the Rwanda policy of his time.
The British government under both Labour and then the coalition of Conservatives and Liberal Democrats wanted to deport him to Jordan.
But the pesky human rights lawyers and pesky human rights judges and pesky human rights courts would not let this deportation happen.
And how the politicians and the media fumed.
The headlines seem somewhat familiar:
But what was missing from almost all the news coverage and political discussion was the actual reason why human rights law was preventing the deportation of Abu Qatada.
And that reason featured an ugly word, a word which politicians and the media of the United Kingdom like to avoid.
That word was torture.
In particular, in this case, whether it was open for a person to face legal proceedings where the evidence had been obtained by torture.
This meant that if you wanted to deport Abu Qatada by withdrawing from the European Convention on Human Rights (ECHR) what you were really saying was that it was fine for a person to face criminal charges based on evidence gained by torture.
Of course, that is not what was being said: what was being blamed were the pesky human rights lawyers and pesky human rights judges and pesky human rights courts.
But all the pesky human rights lawyers and pesky human rights judges and pesky human rights courts in the world can do little or nothing unless there is an actual right being infringed.
In the end the United Kingdom resolved the problem not by breaking human rights law or withdrawing from the ECHR, but by negotiating a treaty with Jordan where it was agreed that torture-gained evidence would not be used:
Abu Qatada was deported not because then Home Secretary Theresa May stood up to the pesky human rights law, but because she and the United Kingdom government complied with human rights law.
And what then happened?
Without being able to rely on torture-gained evidence, Abu Qatada was cleared in Jordan of the criminal charges he faced:
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Ten years or so later, we are repeating the same sort of story.
The pesky human rights lawyers and pesky human rights judges and pesky human rights courts are stopping the government implementing the Rwanda scheme.
But, as with Abu Qatada, most (if not all) of those upset by this non-implementation leave unsaid the actual substantial right at issue.
The principle of non-refoulement means that an asylum-seeker should not be returned (or otherwise removed) to a country where their human rights will be violated.
As the Supreme Court set out in the recent appeal judgment:
Those in favour of the Rwanda scheme do not say (aloud) that they actually want asylum-seekers to end up in places where their lives and freedoms will be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.
Just as those in favour of Abu Qatada’s deportation did not say (aloud) that they wanted a person to face charges based on torture-gained evidence.
But in both cases that is the necessary – inescapable – implication of their position.
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Sometimes, of course, when it suits, those opposed to human rights law will happily spell out the substance of their grievance: take prisoner votes, for example.
In that example, both the substance of the right and pesky human rights lawyers and judges and pesky human rights courts could be attacked, and were.
But even with prisoner votes, the underlying problem was resolved by political negotiation and case law rather than defiance:
Again: reform and compliance, rather than confrontation.
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Unlike the prisoner votes issue, however, those in favour of the Rwanda scheme do not want to spell out the underlying human rights issue.
And that omission is – or should be – a tell.
It tells us that those wanting to rid us of human rights law do not want to address why there is a human rights issue at stake.
They want to tell you the tale of pesky human rights lawyers and judges and of pesky human rights courts as being a political problem in and of itself.
No doubt many human rights lawyers and judges are irksome, but it is only possible for them to be obstructive when there is a fundamental right at stake in a concrete case.
And, as with Abu Qatada and prisoner votes, such obstructions can be resolved by, well, politics: reform, negotiation, compliance.
You know: the sort of things which politicians are supposed to do, when they are not blaming human rights law instead.
Using ugly situations as the means to attack human rights law indicates that there is something else going on.
It shows that what is really being clamoured for is for brute executive might to be allowed, despite the violations of rights in individual cases.
But that bit is usually left unsaid.
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Brilliant alternative approach to the issue. Wish some MPs would ask this in the House.
Mentioning Ken Clarke just makes you realise how low this country has fallen since he was in government.
Ken Clarke has somehow succeeded in maintaining an image of the acceptable face of the Conservative Party, when in reality he was an architect of a lot of the damage that was done to our legal system. His reputation is possibly how he got away with it.
It was during his time as Lord Chancellor at the start of Cameron’s government that a lot of the legislation that hollowed out our legal system was initiated, and he peddled myths to justify it. The book “The Secret Barrister”, (title and author confusingly the same), lifts the lid on this.
The present government is obsessed by the idea it should be able to do what it likes without hindrance. It thinks Brexit means unlimited sovereignty. The idea of complying with the law and getting your way by other means doesn’t appear to occur to ministers, or if it does it seems they prefer confrontation for political reasons.
Parliament is supposed to have unlimited sovereignty already, which means it can pass any law (except one binding a future Parliament, and there are de facto limits also). What it cannot do is create its own facts. So, in the case of things like the Rwanda policy, Parliament can pass a law which says that specific people can be depeorted to a specific country despite any level danger at the destination or any other reason which would normally prevent deportation. What it cannot do is claim that a destination is safe when it is not, as that is a matter of fact and not law. Just as no law can make pi be equal to three.
There is a further objection to the Rwanda scheme which applies even if Rwanda is the most desireable destination in the world, which is that it is our duty to assist our fair share of refugees. This objection would apply equally to Rwanda trying to send its refugees to the UK.
Well said.
In theory yes, but in practice Parliament should avoid passing laws which breach treaties, international law, etc. The Brexteers think they can do whatever they like regardless. That was the whole purpose of Brexit.
In fact, Sunak’s malignant little Bill doesn’t simply declare Rwanda to be safe. It says the Rwanda Treaty assures Parliament that Rwanda is a safe place. A small figleaf to avoid complete absurdity.
I think the opposite is true: the government’s obsessed with creating hindrances to disguise the fact that it can’t do anything. Tilting at windmills is a distraction from the fact that the Brexit referendum, designed solely to help resolve internal Tory politics which made the party ungovernable, has not only made the Tory party even more ungovernable, but shafted everyone else in the process.
So true.
The reason they can’t do anything is that they are obsessed with Brexit and making it work. There is in fact plenty they could do with the majority they have, but they waste their time on performative politics and culture wars.
The Rwanda policy was designed to be a distraction, but it’s taken on a life of its own and has ended up as a millstone around their own necks.
I’m not sure that prisoner voting is such a good example of compliance. As best as I can tell, what happened there is that the UK threw a tantrum and the other ECHR countries agreed, after a suitable period of delay, to let it go because prisoner voting is unpopular everywhere. So today, in 2023, prisoners still can’t vote in the UK.
I wouldn’t say prisoner voting was unpopular in ECHR countries. Many European countries do not ban it, including Croatia, Czech Republic, Denmark, Finland, Ireland, Latvia, Lithuania, Macedonia, Serbia, Slovenia, Spain, Sweden, and Switzerland. The Council of Europe didn’t just let it go either. The UK had to make a proposal to comply, which amounted to allowing prisoners on temporary licence to vote. That was enough to convince the court there was not a blanket ban on prisoners voting and the case was closed. I don’t know if this proposal ever came into force.
I don’t know why the UK made such a huge fuss about this on principle which wasn’t worth making a stand over. A prison sentence is a denial of liberty, not of all rights.
Absolutely – and that is why I typed what I did in the post.
The substantive argument against prisoners’ votes is the idea that a large prison can swing the election in a given constituency – it is “distorting” and uncoupled from the experience of locals. This is no more irksome, however, than students voting at university – and solved more easily. Unlike students, prisoners don’t participate in and aren’t affected by the fabric of constituency life. Therefore while they need representation, it’s not clear that this should be on the basis of where they currently reside, unwillingly, rather than their address-at-liberty. Let prisoners vote by post or proxy in the constituency covering their former address on the electoral roll.
The law doesn’t cope very well with trolley problems. And trolley problems are hard to campaign on, because by definition in a trolley problem there is no ideal solution. So campaigners prefer to gloss over the fact that it is a trolley problem, and pretend instead that there is a solution that everyone ought to be able to agree on.
Legal rules, applied to individual cases, often lead to dumb or even perverse results. So what? The alternative is no legal rules. I’ll take the occasional unpleasant application of rules over lawlessness.
Absolutely right (as usual!)…
To paraphrase Douglas Adams; “Those that seek power should be prevented from ever getting it. Those that seek absolute power should be prevented, well – absolutely!”
I quote: “Those in favour of the Rwanda scheme do not say (aloud) that they actually want asylum-seekers to end up in places where their lives and freedoms will be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.”
I suppose sexuality is covered by “membership of a particular social group”, but it’s worth spelling it out.
I was quoting the judgment’s list of attributes, if you see.
I sometimes wonder at what level in the justice system do these attempts to do the job ‘on the cheap’ take place. Something of the ‘look the other way guv, we’ll have this sorted’ flavour. When that does not work there is some fluttering in the hen coop until the ‘problem’ gets pushed upstairs. Cooler heads there? or a recognition of being in a corner.
I was shocked by the Abu Qatada case at the time. Leading politicians seemed to be essentially announcing his guilt. Normally that’s the court’s job, and such public discourse on his apparently self-evident guilt would be utterly illegal. I assume they could get away with it because it was Jordanian, not British, charges they were talking about. It was if they believed the inadmissible Jordanian “evidence”.
One irony was, they were trying to deport him because he couldn’t be prosecuted in Britain. He had done nothing here, and the Jordanian charges were not prosecutable here. The radical jihadi proselytising he carried out in Britain was not actually illegal. But that is the real reason they made such a fuss about it. But if someone is not breaking the law, you have to put up with it, much as you hate it.
The other irony was that the final outcome was actually just. He was a refugee only because the Jordanians tortured him. By preventing the Jordanians from torturing him, we got him a fair trial in Jordan. Since there was no admissible evidence against him, he was acquitted. So he was able to continue his life in Jordan. That was a just outcome. We restored the world to the condition it should have been in, in the first place.
Stopping foreign countries from torturing people is actually a good thing to do. But we spent a huge amount of government and legal effort stopping Jordan from torturing only those who are deported from Britain to Jordan, unlikely ever to amount to more than a handful of people. We did not prevent Jordan from torturing people in general.