I disagreed with the ruling of the European Court of Human Rights in January that the UK had to keep Abu Qatada here because his trial in Jordan might use evidence obtained from torture. Nor did I agree with its ruling last year, affirmed on appeal earlier this month, that (some) prisoners in the UK should be entitled to vote. Nor with its ruling in 2008 that DNA samples of people who are not charged with an offence should be destroyed.
But what to do about the Court? How to curtail its pernicious doctrine that the Convention on Human Rights is a “living instrument” — in other words, that the Convention means whatever today’s judges say it means regardless of what its drafters intended it to mean?
My column for The Independent on Sunday today concludes that it is not worth the UK repudiating the Convention for the sake of a few rulings with which we disagree. Not least because those same rights are incorporated in European Union law and are increasingly enforceable at the EU’s European Court of Justice. I am told that human rights lawyers now advise their clients to bring their cases under EU law if possible rather than to go to the European Court of Human Rights in Strasbourg, which is, as any padawan-pedant knows, separate from the EU.
Allow me to set out a little more of my reasoning.
First, let us clear up Theresa May’s blunder over dates. She got it wrong, but it almost certainly makes no difference to Qatada’s case. My excellent colleague Brian Brady reports today that Qatada’s legal team intended to appeal against the Strasbourg Court’s January ruling in any case — they were not prompted to do so by the Home Secretary’s premature statement in the House of Commons on Tuesday.
Why did the Home Office get it wrong? Carl Gardner at the Head of Legal blog has the most plausible explanation: that its lawyers advised that Monday 16 April was the last day on which the Government should appeal against the Strasbourg ruling (which was partly in Qatada’s favour and partly in the Government’s). In choosing this date, the advice would have been that the deadline was unclear and that the Government should appeal in good time to avoid legal arguments about it. It was then presumably forgotten that 16 April was a cautious interpretation of the deadline, and that Qatada might be able to appeal 24 hours later. But, as I say, it almost certainly does not matter.
Why, then, did May say that it may take “many months” before Qatada is actually put on a plane? Because Qatada has not exhausted his rights of appeal at the Special Immigration Appeals Commission. It is there, rather than in Strasbourg, that he can try to cast doubt on the reliability of Jordanian guarantees about torture. She hoped to cut this short by announcing a “fast track” deportation, but cannot be sure that the courts will let her.
However, all the people who know anything about the law tell me that Qatada is most likely to be in Jordan later this year. Patient justice will be done.
Given that he has been here for 10 years already, though, how can human rights law be improved?
What was striking about the Policy Exchange seminar (with video) that I attended last week was that two new Conservative MPs on opposite sides of the ECHR argument, Dominic Raab and Jesse Norman, seemed to differ little over what to do in practice.
Raab is a lawyer and a critic of the European Court of Human Rights, while Norman is a historian and a supporter. Raab compared the Court to a boa constrictor, and said that, “if you struggle half-heartedly, it tightens its grip”. Norman, on the other hand, who co-authored Churchill’s Legacy: The Conservative Case for the Human Rights Act, said that the rulers of Russia (who let them into the ECHR?) and Belarus would celebrate if national parliaments could overrule the Court.
Yet Raab proposed little beyond taking further the weak reforms agreed at the Brighton conference last week. He did not advocate repudiating the Convention or leaving the EU. While Norman admitted that the Court was flawed.
Muddle on, then.
The idea of a British Bill of Rights to rewrite the Human Rights Act and to assert more forcefully the authority of the UK Supreme Court in human rights matters, which was once the great hope of Conservative Eurosceptics, is on hold. Michael Pinto-Duschinsky, who resigned last month from the Government commission to consider the Bill, was also at the seminar. He seems to think that rejecting the authority of the Strasbourg Court would be “worth a try” (in the words of Lord Hoffman). Pinto-Duschinsky criticised the rhetoric of “You’d be killing off widows in Chechnya if you repudiate the Court.”
But you cannot, as I learnt at the seminar, repudiate the Court without also repudiating the Convention. And in any case, as Austen Morgan, the fourth member of the Policy Exchange panel, put it, the same problems will then emerge through EU law.
Morgan, a barrister who was an independent member of David Cameron’s pre-election commission on a British Bill of Rights, was scathing about “the human rights community”, describing its lawyers and pressure groups as “a religious movement”. He quoted Baroness Deech, the crossbench peer:
Equality, human rights and freedom have become in themselves a religion or philosophical belief — almost organised, in fact, given the number of bodies that exist to enforce them. (House of Lords, 25 January 2010.)
The argument in Conservative circles seems already to have moved on to: what on earth should we put in our 2015 manifesto, assuming we can shake off the trammels of the Liberal Democrats then?
Even if they were free to draw up a British Bill of Rights without Helena Kennedy, Philippe Sands and other members of the religious movement jogging their elbow, such a Bill could do little to circumscribe Strasbourg judges, or the growing ambitions of those of the EU court at Luxembourg.
As I say, the British approach is probably best: muddle on.
(Thanks to Carl Gardner for discussing some of these points with me last week.)
PS. I suggested in my Independent on Sunday article that the European Court of Human Rights may be trimming its aggressive interpretation of the Convention for fear of provoking another uproar in Britain as over prisoners’ votes. Prof Helen Fenwick gives two examples on the UK Human Rights blog.