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Omar Othman is a resident of this country – guilty of no crime and up to now facing no charges – whose home country wants to put him on trial in a case where the key evidence against him will in all likelihood have been procured by torture. The only reason he probably won’t be tortured is because the state concerned has reluctantly promised (as an inducement to get him back) not to follow its usual routine.
If this person’s name were MacKinnon or Giles or Gary and the country Syria or Sudan, we’d have outraged Daily Mail editorials and a civil libertarian Home Secretary. But it is Abu Qatada and the state is Jordan.
In politics universal values (the rule of law; the protection of human rights; the prohibition on torture) are fine – but only so long as they don’t get in the way of our diplomatic or political interests, the career ambitions of our leading politicians, or the propensity of our allies to do evil.
The law doesn’t work like this.
It deals in legal commitments. No bit of the Human Rights Act or of the European Convention on Human Rights or the Convention Against Torture has a proviso ruling out their protection for foreigners with ‘funny’ names or for those with the ‘wrong’ ethnic or religious backgrounds. The three senior judges who have just reminded the government of this yet again in the latest ruling on Abu Qatada are not necessarily liberal, or progressive, or devotees of some kind of judicial cult worshipping at the shrine of Shami Chakrabarti. They are just doing in a dull old-fashioned kind of way what is made inevitable by their training, their culture, and the unequivocal democratic laws that it is their job to apply.
The facts of this case are surely by now well-known. It concerns the refusal by the Secretary of State to revoke the deportation order against Abu Qatada notwithstanding the ruling of the European Court of Human Rights that to send him to Jordan for trial would in the circumstances amount to a flagrant denial of his article 6 right (under the European Convention) to a fair trial. The Special Immigration Appeals Commission having made the decision to uphold the application, it was always a long shot that the Court of Appeal – with oversight only on issues of law – would overrule its specialist subordinate, and so it turned out. Here was a ‘detailed and careful judgment by an experienced tribunal’ (para 42) on the nature of the burden of proof and on what is entailed by the ‘flagrant denial of justice’ test that applied to cases such as the one before the court.
The subject matter also mattered.
As the Master of the Rolls, speaking for the Court of Appeal, put it:
‘Torture is universally abhorred as an evil. A state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture. That principle is accepted by the Secretary of State and is not in doubt. That is the principle which SIAC had to apply in the present case in the light of all the evidence that it heard and read. This included evidence as to what had happened and what there was a real risk would happen if Mr Othman faced a retrial on the very serious charges that he faces. SIAC found that there was a real risk that evidence obtained by torture would be admitted at the retrial and that, as a consequence, there was a real risk that he would be subject to a flagrant denial of justice’ (para 58)
Successive governments and the Tories in particular have long had a problem with the rule of law. It seriously inhibits the security services in their desire to take national security wholly back – Cold War style – into the realm of the executive. It also inconveniently stands against the populist manoeuvring favoured by the dark side of both main Parties.
The rule of law is what Conservatives in particular were brought up to believe in, a bit of the imperial history (Magna Carta, Blackstone, Dicey; etc) that Michael Gove will soon be making all little Englanders learn by rote. In the good old days the judges saved embarrassment by looking the other way when radicals were shafted, shocking bail conditions imposed, foreigners unceremoniously thrown out. This went on right into the 1980s (Spycatcher; the Birmingham Six; the miners’ strike). But things have changed. The Hales, Neubergers, Dysons of today are not the ex-servicemen, rabid anti-Communists and Tory placemen of yesteryear. And there is now the European Court of Human Rights to keep them honest, as it did in the Abu Qatada case itself last year when overruling our judges’ effort to be relaxed about torture evidence as long as it was being allowed in Amman and not the Old Bailey.
This is how the Court of Appeal dealt with the politics, what in cricket might be called the straightest of straight bats:
‘Mr Othman is considered to be a dangerous and controversial person. That is why this case has attracted so much media attention. It is entirely understandable that there is a general feeling that his deportation to Jordan to face trial is long overdue. But the principles that we have to apply do not distinguish between extremely dangerous persons and others who may not constitute any danger in the United Kingdom and whom the Secretary of State wishes to deport to face trial in another country. The fact that Mr Othman is considered to be a dangerous terrorist is not relevant to the issues that are raised on this appeal. It would be equally irrelevant if we were deciding the question whether there was a real risk that he would be tortured if he were returned to Jordan.‘ (para 56).
What will the government do?
In the short term it has enough legal devices to hand to continue to make the life of Abu Qatada and his family hell without exposing their hand against him in any kind of fair prosecution for a serious offence. If they get the chance they might even press charges if they can be assured of the secret justice for which they have been fighting so hard in recent weeks.
In the longer term the Conservatives only get away with supporting universal values like the rule of law and human rights while also condemning non-white foreigners, deadbeat immigrants and benefit scroungers because they are always silently whistling that none of the values we supposedly uphold really in truth applies to these reprobates. Nigel Farage has thrown the Party into a panic precisely because he is talking about this, not covertly whistling.
Short of abolishing the rule of law and universal human rights the party is left with the poor consolation of being able only to shout insults at the judges –like a political version of the limbless black knight in Monty Python and the Holy Grail who roars at his adversary ‘Come back and I’ll bite your legs off.’
Conor Gearty is Professor of Human Rights Law, LSE, and a Barrister at Matrix Chambers.
Suggested citation: C. Gearty ‘The Important Inconvenience of the Rule of Law’ UK Const. L. Blog (30th March 2013) (available at http://ukconstitutionallaw.org)
An earlier version of this post appeared in The Guardian.