Home Secretary Theresa May was thwarted again last week in her battle to deport the radical preacher Abu Qatada. This time, the court of appeal turned down her attempt to take the case to the supreme court.
The government's next move? "David Cameron is considering temporarily withdrawing from the European Convention of Human Rights so that Abu Qatada can finally be removed from Britain," proclaimed the Daily Telegraph.
A few years ago, that would have provoked incredulous laughter. Not so now. The possibility of leaving the Convention – whether temporarily, as the PM reportedly discussed with his home secretary, justice minister and attorney-general, or permanently – can no longer be dismissed as unthinkable or absurd.
Because of the government’s populist response to a troublesome cleric whom it cannot deport, we are at risk of losing the human rights framework painstakingly erected after the second world war to protect us from state oppression and illegality, unwarranted intrusion and arbitrary interference in freedoms fought for over centuries – a framework the justice ministry describes on its website as "fundamentally important in maintaining a fair and civilised society" (PDF).
The Eastleigh effect
Some of the Tories’ recent proposals are clearly a response to UKIP’s showing at the Eastleigh by-election in February on an explicitly anti-EU, anti-immigration platform.
Populist measures announced since then include removing prisoners’ ability (through legal aid) to challenge the conditions of their incarceration; checking the immigration status of children at school, stopping migrants getting social housing; and restricting access to benefits and the NHS for EU nationals, to stop ‘benefit tourism’ (targeting in particular the Romanians and Bulgarians who, Cameron claimed in March, are preparing to swarm in and sign on as soon as restrictions on their employment in the UK are lifted on 1 January 2014).
EU employment commissioner László Andor warned Cameron his claims were ‘unintelligent’ and risked pandering to "knee-jerk xenophobia", and Nils Muižnieks, Europe’s human rights commissioner, accused him of "shameful rhetoric" which was "fuelling stereotypes and hostility towards migrants". But in the context of the increasingly naked attacks on the rights and living standards of demonised groups – a category which seems to be ever expanding to include all poor people – the possibility of leaving Europe’s human rights system no longer seems so remote.
Greece under the colonels
The Convention allows signatory states to withdraw on six months’ notice, but the only precedent is Greece, which withdrew from the Convention and from the Council of Europe (the 47-state group of states which oversees human rights in Europe) from 1970 to 1974, under the dictatorship of the colonels.
The UK would probably have to withdraw from the Council of Europe too, as all members are expected to comply with the human rights standards set out in the Convention. When justice minister Chris Grayling advocated repeal of the Human Rights Act and a radical reduction in the influence of the European Court, the attorney-general warned him that Britain could become a pariah state like Belarus, the only European country currently outside the Convention and the Council of Europe.
But the implications go further. Senior lawyers and judges have pointed out that deporting Abu Qatada would put into question Britain’s membership of the European Union, which requires adherence to its values by member states (some Eurosceptics would welcome leaving the EU, having pushed Cameron into pledging a referendum on the issue in a majority Tory government), and of the United Nations, whose Covenant on Civil and Political Rights and Convention Against Torture both prohibit exposing someone to a trial tainted by torture evidence. And of course, the Human Rights Act, which requires Britain’s laws and decisions to be compatible with the human rights set out in the Convention, would have to go.
Attack on universality
Abu Qatada represents the hard case, the most demonised demon in the Right’s campaign against the universality of human rights, but not the only one. In January 2013, human rights commissioner Muižnieks singled out the UK for special criticism over its continuing refusal to comply with the court’s 2005 ruling on votes for prisoners, "openly challenging the essence of the European human rights system" of which it was a founding member. (See Hirst v. the United Kingdom (no. 2) (74025/01), 6.10.05.)
The only other states singled out in the Commissioner’s survey of the state of human rights protection in Europe were Azerbaijan, Hungary, Russia and Greece.
Cameron said in November 2012 that the thought of prisoners voting made him "physically sick", a stance in keeping with a divisive, punitive polity which is content to cast prisoners – along with foreign offenders, asylum seekers, Muslims, Romanians, Bulgarians and welfare ‘scroungers’ – as outcasts and non-persons.
So although a new bill on prisoner voting presented to parliament later that month offered MPs three options: a voting ban for prisoners serving four years or more; for those serving six months or more; or for all serving prisoners (ie, maintaining the status quo, which the European Court has said is illegal), Grayling and Cameron made no bones about their preference, which is the third option. (The bill has gone to a parliamentary committee; MPs will vote on it later. Meanwhile over 2,500 complaints by prisoners are awaiting hearing at the European Court, which has adjourned them until September to see what the British government will do.)
Foreign offenders’ ability to avoid deportation by the invocation of rights to family life is another issue that ignites the Right’s fury. Last year, May and justice minister Ken Clarke (since removed as too liberal) sought to renegotiate the European human rights system to reduce the Human Rights Court’s scrutiny of deportation decisions, and their Brighton Declaration, adopted in April 2012, promised to make complaints to the Court more difficult to initiate and harder to win.
But without waiting for these changes to be implemented, May brought in new immigration rules in July 2012, seeking to limit British judges’ ability to take family life into account in deportation appeals. The judges (who are not soft touches when it comes to the human rights of foreign national offenders) rebuked her. The Convention, not her new rules, determined what would and would not violate deportees’ family life rights under the Convention, they reminded her, and moreover her rules ignored children’s rights, in breach of the UK’s obligations under the UN Children’s Rights Convention. (See MF (Nigeria) v SSHD  UKUT 393 (IAC), 31.10.12, and Ogundimu v SSHD  UKUT 60 (IAC), 18.2.13).
Despite the drop both in crime and in the proportion of offenders who are foreign, May now proposes primary legislation further limiting foreign deportees’ family life rights. But as long as Britain subscribes to the European human rights court, anyone facing deportation can go there to complain that British law penalises them disproportionately. That is why, in March, she rejected as counter-productive Dominic Raab’s legislative proposal to effectively abolish family life rights for those facing deportation, incurring the wrath of right-wingers in her own party. (See "The strange case of the Raab amendment", The Justice Gap, and Mark Reckless's blog "Home secretary falls at first hurdle").
Cameron notoriously described the Court as a "small claims court" when it stopped Abu Qatada’s deportation, but it is this individual right of petition direct to the Strasbourg court which has made Europe’s system so (relatively) effective in human rights protection.
The commissioner’s and the judges’ intervention in the debate are an indication of just how worrying is the government’s assertion of a nineteenth-century view of British sovereignty and its rhetorical denunciation of the universality of human rights and the institutions designed to protect them, in its frantic pursuit of the right-wing vote.