Eleventh Hour Reform - Qatada and the Issue Of Human Rights

Henry Norman

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Wrangling between the UK government and the ECHR leaves the fate of Abu Qatada in a state of limbo.  Matt Dunham.

Background

Back in February 2009, the then Law Lords judged that Abu Qatada, the radical Islamic cleric, could be deported back to Jordan under the agreement that Qatada evidence obtained by torture would not be used in any trial against him. The European Court of Human Rights (ECHR) then stepped in and in January of this year ruled that returning Qatada to Jordan, in spite of the potential of such evidence, would be a ‘flagrant denial of justice.’ Such a move would contravene Qatada’s protection under Article 6 of the European Convention on Human Rights which dictates one’s right to a free and fair trial. This is an unalienable right that extends even to a man widely seen as a security threat and Bin Laden’s ‘ambassador in Europe.’

The Home Secretary, however grudgingly, has played to the letter of the law. Diplomatic missions have been despatched to Jordan to gain further assurances that evidence obtained by torture will not play any role in a trial against Qatada. This is perhaps in light of recent events that have seen the former Foreign Secretary, Jack Straw, threatened with litigation surrounding his alleged collusion with the CIA and the illegal rendition of Abdel Hakim Belhadj to Gadhafi’s Libya.

The Eleventh Hour  

Just as it seemed that Qatada’s one way return to Jordan had  all but been booked, an eleventh hour appeal was submitted to the Grand Chamber of the ECHR by Qatada’s legal team. Confusion between what the Home Office thought was the appeal deadline and what the ECHR thought has resulted in utter disarray. 

What is really troubling about this affair is that it will fuel the resentment of many within the Conservative half of the coalition towards the ECHR. This may result in further eleventh hour reforms driven by populist sentiment. This threatens to have dire consequences for our role in upholding human rights within the international community.

To combat the perceived erosion of state sovereignty by foreign judges, reform of the ECHR has been made a key priority for the UK chairmanship of the Council of Europe. At the opening of the Brighton Conference, Justice Secretary Ken Clarke announced, ‘Our shared priority is to show that it is possible to bring sensible and meaningful reform to the Court without weakening human rights, giving up on the Convention, or undermining decent standards across Europe.’

The much maligned European Court of Human Rights dispensing justice since 1959. Vincent Kessler.

These proposed reforms will really be in the eleventh hour as UK chairmanship of the Council expires on the 14th May 2012. However, what seems to be most worrying is the wish to allow ‘greater margins of appreciation’ in interpreting the ECHR rulings. In other words, member countries can decide how far (if at all) they wish to implement the judgments of the court. For a liberal democracy such as the UK, this worry is far less profound. Amnesty International, on the other hand, has concerns for the countries such as Russia from which the ECHR ‘provides the only means of redress for millions of people.’ 

Comparative versus Absolute

As such, these reforms, spearheaded by the UK government, threaten to treat human rights as an issue of comparative advantage rather than of absolute gain. In other words, the UK government gain comparatively in their ability to keep many popular policies such as deporting hate clerics and stripping prisoners of the right to vote. In absolute terms however, as members of an international community, they neglect their universal obligations to uphold human rights. Such disregard of universal human rights also threatens to put too much power in the hands of governments that don’t always act in the interests of its citizens. As a policy advisor for Amnesty International reminds us, ‘UK courts don’t always get it right. It was this self-same European Court of Human Rights that reprimanded the UK government when it wanted to indefinitely retain the DNA of innocent people.’ As such, the ECHR is pivotal in providing a system of checks and balances for what could be unruly governments. 

Road Ahead

This is not to say that the ECHR is not in need of reform; there are obvious problems surrounding the enormous bottleneck of over 150,000 cases currently clogged up in the backchannels of the ECHR. However, such reform cannot be achieved by what appears to be eleventh hour dealings at the end of the UK chairmanship. As the President of the Parliamentary Assembly of the Council of Europe, Jean Claude Mignon reminds us, ‘for every indigestible adverse ruling, there are dozens that are quietly progressive and have come to be regarded as profoundly sensible.’ As such, we should not allow cases such as that of Qatada to cloud our obligations towards international institutions such as the ECHR. 

Furthermore, if we want more quantitative data on the matter, then look to the ECHR’s Annual Report of 2011. Going by headlines in the popular press, anyone would think that the ECHR had ruled against the UK on countless and far too many occasions, but the actual figure is only 8. Compare this with France and the number is 23, and compared with Russia the total number of violations comes to 123. 

Obviously there is no question that the UK will leave the ECHR (despite the wishes of a few backbenchers). To do so would cause a cataclysmic dent in the soft power apparatus of the UK. However, the UK must remain vigilant in not appearing at all isolationistic when it comes to issues such as human rights. The government’s proposed reforms still have a hint of self-interest more than a concerted effort to actually effectuate substantial change within the ECHR. The outgoing President of the ECHR, Sir Nicholas Bratza has commented that, ‘reducing or even eliminating the backlog [of 150,000 cases] will require additional resources.’ Such a view will not go down well with law makers across Europe, but perhaps it is the tangible evidence needed in order to demonstrate member states’ deep commitment to human rights across Europe- at least that is the populist, easy to say, hard to deliver rhetoric we have all grown so used to.