Abu Qatada - Image: Wikimedia/UK Home Office
The Conservatives’ venomous campaign against the European Court of Human Rights gained new strength with the deportation of Abu Qatada at the end of a major political narrative, initiated by New Labour politicians and magnified by raging tabloids, to damn the Court and our domestic courts for their undemocratic obstruction of the will of the people – i.e., of successive Home Secretaries and their governments. The Court’s ruling against whole life tariffs for infamous murderers will intensify the Tories’ plans to scrap the Human Rights Act and the UK's withdrawal from the Court.
For nearly ten years, vocal and powerful members of the political class, Labour and Tory politicians, tabloid editors and journalists and security officials conspired to invent and demonise “Abu Qatada”, who was born Omar Othman, as a uniquely dangerous terrorist without ever seeking to bring him to justice. Not only that, this unprecedented campaign also demonised his lawyers, the British courts and the European Court for their part in upholding the basic human rights injunction that the state should not torture citizens nor collude in their torture, and nor should it subject them to trials, here or abroad, in which evidence against them is tainted by torture.
New Labour Home Secretaries David Blunkett, John Reid and their ministerial colleagues began the campaign, trumpeting their rage and frustration when the courts demanded that they respect the rule of law and human rights of Qatada and other “terrorist suspects”. Now in Mrs May’s moment of triumph, a veritable Boudicca who has at last slain Britain’s continental oppressors, Labour politicians such as Reid, Keith Vaz and Hazel Blears heap garlands upon her. The Tories and their press cannot forbear repetition of the calumnies that they have hurled into the public arena: David Cameron (whose “blood boils” at the very thought of the man being in the UK, albeit in gaol) stigmatised the “cavalcade of lawyers” who had worked to secure justice for him; the Express derided the “grinning hate cleric”; the Mail complained that “for almost a decade, Abu Qatada made fools of our seemingly impotent political class” and crowed that at last he and “his army of well-padded legal aid lawyers had no option but to concede that their expensive, cynical game was up.”
Actually it was not that hard for May, who in fact made grotesque mistakes before finally bowing to the law, to cut the Gordian knot and do a deal with Jordan (that alas only protects Abu Qatada and no others). She deserves some small credit for acknowledging reality. But for the nation as a whole, and for the cause of human rights around the world, it is Edward Fitzgerald and his legal team and the judges here and at Strasbourg who deserve recognition and respect for having braved the media storm of “expensive, cynical” outrage and having assured the rule of law.
I do not know whether or not Omar Othman is guilty of the crimes for which Jordan means to put him on trial or deserves the epithet of “Osama bin Laden’s right-hand man in Europe”. It seems that our judges took whatever evidence they saw seriously. Yet in the Guardian the respected journalist Victoria Brittain who knows Omar Othman and his family rejects the accusations against him. But I do know that he deserves a fair trial, untainted by evidence secured in torture, and it was Britain’s duty to ensure that.
Mrs May asserts that Qatada would have been deported “long ago” had not the European Court “moved the goalposts by establishing new unprecedented legal grounds on which it blocked his deportation.” The Court did indeed block the UK’s efforts to deport him to Jordan, where he faces trial for terrorist offences, finding that there was a “real risk” that the Jordanian courts would rely on evidence obtained by torture, which falls foul of Article 6 of the European Convention guaranteeing the right to a fair trial. That ruling was consistent with the practice in British courts outlawing torture evidence on the basis it is immoral and inherently unreliable.
As for the Strasbourg's Court’s ruling on whole life tariffs, lawyer Roger Sahota in the Huffington Post has pointed out that “Britain is almost unique in Europe in sentencing some serious criminals to whole life terms.” The Court is not ordering the release of Jeremy Bamber and the other appellants, nor does its intervention make it likely they will ever be released. It simply requires the government to review their detention after they have served 25 years in prison and periodically thereafter. This was the position under the old law before David Blunkett changed the law in 2003 “so that life really meant life . . . Whatever the technical justification the Strasbourg court may have, it is the right of the British Parliament to determine the sentence of those who have committed such crimes.”
The whole saga illustrates an alarming aspect of our current politics - the coalition’s programme for legal aid reform and general approach to, for example, welfare benefits, both of which are predicated upon blaming their victims. Cameron anathematises the “cavalcades of lawyers” who stood up for Othman. Does he really mean that Othman and other unpopular defendants do not deserve legal representation? His allies in the press continually stress the cost of “well-padded legal aid lawyers” which (a) is not true of legal aid practitioners and (b) is besides the point. Yet these are the strains of thinking – defendants are probably guilty anyway, their lawyers are too expensive, claimants are work shy scroungers - that underlie Grayling’s assault on legal aid and Duncan Smith’s welfare policies.
The other problem is the growing assertion of populist majoritarian politics. The Tories are outraged that they cannot pursue their rightful policies in Europe and on human rights, notwithstanding that they failed to win a majority in 2010. Were they not born to rule? But Labour politicians like Blunkett and Reid in a government that actually won a majority also have no right to insist they “speak for the country” on the basis of their electoral victory and then to go on to vilify the judiciary for obstructing their assault on individual liberties.
A modern democracy worthy of the name is rule-based and holds executive policy-making and minority rights and civil liberties in balance; politicians should respect the division of responsibilities between executive and parliament in making and implementing policy, on the one hand, and the judiciary’s duty to protect human rights and enforce due process, on the other. Moreover, basing a government’s justification for overturning human rights, due process and basic decency on an electoral victory won on a minority popular vote under a disproportionate electoral system and a deficient and biased electoral register amounts to hubris on a gigantic scale. But we will see more of that; and it may not only be Mrs May and her Tory chums that we need fear.