The government was pursuing a “twin strategy” in its efforts to deport Abu Qatada, Theresa May told the Commons on April 24. That sounded encouraging. But although one of the Home Secretary’s two options was blindingly obvious, the other was doomed to failure. She also has a third way, it emerged, which is clearly off the wall.
Of course, that was not quite how May saw it. She reminded MPs that successive governments had tried to send “this dangerous man” back to his native Jordan ever since 2001. But the European Court of Human Rights had blocked his deportation in January 2012 because it found a “real risk” that Qatada — already convicted in his absence of major terrorist conspiracies — would be retried there on evidence that had been obtained through torturing his co-defendants. That, said the Strasbourg judges, “would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome”.
So if Qatada was going to face trial in Jordan, it would obviously have to be on evidence that was not obtained by torture. If there was no such evidence, he could be deported only if the Jordanians abandoned their efforts to put him on trial.
That conclusion has now been accepted by the government of Jordan. On March 24, its ambassador in London signed a 16-page treaty with the UK providing for mutual legal assistance in the “investigation, prosecution and suppression of criminal offences”.
Most of this is pretty routine. It will allow witnesses to be interviewed and evidence to be secured in one country on behalf of the other. But then the treaty changes direction and deals with individuals who are sent from one state to the other in order to stand trial.
If the individual may be tried on the strength of a statement allegedly obtained through torture, the treaty prevents any use of the statement unless prosecutors can satisfy the court “to a high standard” that it was not obtained through torture after all.
The next provision is even more specific. If a court in the sending state has already found a real risk that the authorities in the receiving state have obtained a statement through torture, the statement must not be used at the trial or retrial of that individual unless prosecutors can satisfy the court “beyond any doubt” that the statement was freely made.
As May said, that ought to persuade both the UK and the European courts that Qatada will not face trial on tainted evidence. It would not, of course, prevent him from being detained in Jordan under other provisions or stop him being from charged on different evidence.
The UK-Jordan treaty will require ratification by the parliaments of both countries, which is not expected much before the end of June. Meanwhile, May was doggedly pursuing the second track of her twin-track approach: an appeal against a ruling blocking Qatada’s deportation, made last November by the Special Immigration Appeals Commission (Siac).
Such appeals can be granted only if Siac gets the law wrong, so it is not surprising that the Court of Appeal dismissed May’s challenge in March and, a month later, refused her permission to take her case to the Supreme Court. That court could grant the necessary permission itself. But Qatada’s announcement on May 10 that he would return voluntarily once the Jordanian parliament had ratified the treaty made it even less likely that her appeal would be heard, let alone granted. That left bail as the only issue in dispute: Qatada argued that his decision to return home meant he was no longer a flight risk.
The Home Secretary’s third way is to “fix” the UK’s relationship with the European Court of Human Rights. Downing Street was apparently briefing reporters that the Prime Minister was thinking of withdrawing temporarily from the convention in order to facilitate Qatada’s deportation.
There are many reasons why this would have been absurd. Although article 58 of the convention allows a state to “denounce” it on six months’ notice, that would not release the UK from compliance with the convention before the withdrawal took effect. There would be no guarantee that the UK would be allowed to rejoin the convention in future on its own terms. The denunciation itself could be challenged before the human rights court. And the government would still be required to comply with the Human Rights Act unless that, too, is repealed or amended by parliament.
But there was never any need for that. Once the Jordanians promised not to try Qatada on tainted evidence, he knew another human rights challenge would fail. However irritated ministers may be with him, his case provides no justification for abandoning fundamental legal principles to which the UK has long been committed.