By Philip Johnston
It's not the Human Rights Act that stops us deporting terrorist suspects, but a flawed European treaty, says Philip Johnston.
Many readers of this newspaper must have looked at yesterday's front page and scratched their heads in bewilderment. There was Nick Clegg asking people to nominate the laws they would like to see repealed and right next door was a story that said we were unable to deport two suspected al-Qaeda terrorists because we were bound by human-rights legislation.
There's one for your list, Mr Clegg: scrap the Human Rights Act and chuck out the men who pose a threat to our life and limb. Only we can't; or at least, we won't. And it may come as a surprise to many, but the reason why we can't deport Abid Naseer and Ahmad Faraz Khan to Pakistan, where they come from, has nothing whatsoever to do with the Human Rights Act.
To find the real reason, we need to go back 15 years to the case of a Sikh nationalist called Karamjit Singh Chahal. He was an Indian citizen who had been living in Britain as a political refugee until his arrest in 1990 on suspicion of stirring up trouble in his homeland. His continued presence in the UK was deemed no longer to be conducive to national security and the government decided to deport him to India.
Chahal appealed. He said if he was returned to India he faced the real prospect of torture or death and that the British Government was bound by Article 3 of the European Convention on Human Rights. This states that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment". The fact that we were not going to administer the torture (and that, in all likelihood, neither were the Indians) was considered beside the point.
For six years Chahal was held in detention until his case came before the European Court of Human Rights in Strasbourg. The United Kingdom argued that the effect of Article 3 should be qualified in a case where a state sought to deport a non-national on grounds of national security. But the European court disagreed. The Chahal judgment meant the Government could not repatriate a Saudi dissident called Mohammed al Massari on national security grounds. An attempt was made to send him to a Caribbean island but this was blocked as well. He remains in the country. The men who hijacked an airliner from Afghanistan are also still here, despite a government promise 10 years ago when they arrived that they would all be sent packing.
Abu Qatada, allegedly Osama bin Laden's top European representative, has successfully fought off a whole succession of attempts to remove him to his native Jordan, again on Article 3 grounds. In his case, the Foreign Office tried to get around the human rights problem by striking a deal with the Jordanians who promised not to maltreat him.
The British courts even backed this approach three years ago. They said assurances received from Jordan about his treatment were enough to override human rights obstacles and his deportation would make "the lives and wellbeing of those resident here safer". It was necessary "as a measure of defence for the rights of those who live here". Yet he is still here, albeit in jail, pursuing an appeal. How come?
The reason is that when the European court revisited the Chahal judgment, at Britain's request, to see if it could be watered down in some way, it not only refused to do so but said any country-to-country agreements designed to get around Article 3 were not worth the paper they were written on. Article 3 is an absolute.
This, then, is the background to the decision by the Special Immigration Appeals Commission (Siac) not to allow the deportation of two men who, they acknowledged, were, in all likelihood, terrorists. UK courts have subsequently been guided by this ruling – and it predates the Human Rights Act, which merely gave the UK courts power to give effect to the convention. Scrapping the Act and replacing it with a British Bill of Rights would make no difference to the problem posed by the Chahal judgment.
How did a set of rights introduced with the best of intentions come to require a country to harbour in its midst foreign nationals who would do it harm? When it was written 50 years ago, the convention was a hugely enlightened document and an attempt to bind those countries most responsible for the atrocities of the Second World War to a code that limited state power in relationship to the individual.
The convention drew upon British concepts of liberty; and this country was among the first to sign up to its provisions in 1950, even though its principal protections were designed not for us, who already possessed them, but for the people of those countries that had never had them.
Gradually over the years, the jurisprudence built up through the European court in Strasbourg transformed these liberties into a corpus of immutable rights. The situation that we see now was never envisaged. In the early years, for instance, there was no barrier to returning Nazis who had fled to Germany for trial, even though that could result in their execution, which would now be seen as a breach of Article 3.
Many of the Islamist extremists who came here in recent years did so because they were wanted people in their own countries; they really are political refugees, but they regard us as the enemy, too. Yet the 1951 Geneva Refugees Convention, under which people like Chahal and Qatada were allowed into the UK 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". On this basis, they could be sent back if it were not for the ruling of the European court in the Chahal case.
Aside from not letting them in to start with, what can be done? Could we withdraw from the European convention? In theory, yes – but it might mean having to leave the European Union because observing the rights in the ECHR is now a condition of membership. One suggestion is to withdraw from the convention and rejoin the following day having entered a reservation to Article 3. This is possible under Article 57, which allows for a reservation to be entered when a country joins. It is not clear, however, whether this would be valid if a country left and rejoined or even if it would be allowed, since torture is prohibited by a fundamental rule of international law.
Another possibility is to draw a distinction between torture and "inhuman and degrading treatment" and deport suspects to countries that practise the latter, but not the former (or preferably that do neither). The last government tried this approach on the Strasbourg court, arguing that it was wholly unreasonable not to allow public safety considerations to be taken into account, even where there was a real risk of inhuman or degrading treatment, provided it stopped short of torture. The court was having none of it.
Why not put suspects on trial? Because in most cases there is no evidence that would stand up in court. There may be intelligence that they are up to no good, but that is not the same thing. The two Pakistanis would have been charged by now if there was enough to put before a jury, but clearly there isn't.
Could we just ignore the courts? We could. In 2002, Sweden sent home two Egyptians who had applied for asylum, a deportation that took place outside normal legal channels. The Swedish government claimed to have received assurances from Egypt that the deportees would receive a fair trial and would not be tortured but relatives of the men said these were broken as soon as they arrived in Cairo. There was a big political row and the Swedes were later ticked off by a variety of international bodies – but they had removed the suspects. However, this is what is called extraordinary rendition.
Some people don't care if suspected terrorists are sent home and tortured. But that is not the view adopted by any government in the civilised world. There might, however, be scope for a different approach – such as monitors – if it was allowed by the European court. But it isn't. So maybe it is the court, not the convention, that is at the root of the problem.
Set up by the Council of Europe (not the EU), it has no constitutional legitimacy. If all the signatory nations got together and insisted on its reform, that might make a difference. Someone would need to set the ball rolling by bringing together a coalition of countries who want to sort this out once and for all.
Over to you Mr Cameron. Or Mr Clegg.
Source: The Pioneer