Lords judgment: Abu Qatada and others can be deported

The Lords today have ruled today, unanimously, in RB (Algeria) and OO (Jordan) v Home Secretary that Algerian terror suspects and the Jordanian Abu Qatada can lawfully be deported to their home countries; to do so would not breach the Article 3 Convention right not to be tortured because the UK can properly rely on the assurances made by Algeria and Jordan that they will not be mistreated. Nor will deportation breach Abu Qatada’s right to liberty or to a fair trial: the Court of Appeal, say the Lords, applied the wrong test in considering Article 6. Abu Qatada will not be totally denied justice.

Jacqui Smith will be delighted. The most important aspect of the case is that the Algerian and Jordanian assurances can be relied on: this means that the second strand of the government’s strategy in this area has succeeded, and it will in practice be able to use assurances from foreign governments as a way of overcoming the human rights obstacles to deportation. This was the chink of light left after the first, hopeless strand of its strategy (to change the courts’ approach to Convention rights) failed in Saadi.

The legal point that interests me more, though, is the extremely geeky one: is whether Abu Qatada is at real risk of being tortured a question of fact, or a question of law? All their Lordships discuss this, some at length, and all decide it is a question of fact – which means in their view that appellate courts cannot make up their own minds and substitute their own view for that of the Special Immigration Appeals Commission, but should only depart from SIAC’s conclusion if it is unreasonable. All their Lordships considered SIAC’s view a reasonable one, and Lord Hoffman, in response to submissions made by Richard Drabble QC for one of the Algerians, that

the question of whether a Convention right had been or would be violated was always a question of law, even when it involved what would ordinarily be a question of fact. The reasoning was that SIAC is a public body required by section 6(1) of the Human Rights Act 1998 to act in accordance with Convention rights and therefore if it gave a decision contrary to a Convention right it made an error of law. (para. 189)

replied (para. 190) that

There is nothing in the Convention which prevents the United Kingdom from according only a limited right of appeal, even if the issue involves a Convention right. There is no Convention obligation to have a right of appeal at all. If there is a right of appeal, then of course it must offer a fair hearing before an independent and impartial tribunal in accordance with article 6. But there is no obligation to provide an appeal against the determination of a Convention right.

I think Richard Drabble’s right about this, and the Lords wrong. It’s quite right that there’s nothing in the Convention that requires an appeal court to reach its own view on the risk of torture, but I think the Human Rights Act probably does have that effect. Under section 6, any court must act compatibly with Abu Qatada’s Convention rights, which obviously include his right not to be tortured. A judgment either of SIAC or of the House of Lords would be incompatible with the article 3 right if it permitted his deportation in circumstances where there were substantial grounds for believing there was a real risk he’d be tortured. Therefore, it’d be a judicial act subject to appeal under section 9(1)(a). And once appealed under that provision, the question whether permitting deportation would breach article 3 is surely within the appeal court’s jurisdiction, regardless of whether you characterise it as a question of fact or law. Finally, that court cannot answer the question – was the lower court’s judgment compatible with the article 3 right – by asking whether or not it was reasonable to think there was no real risk of torture. The lower court’s judgment was only compatible with Convention rights if there is not a real risk of torture. I don’t really see how the Lords can avoid the need to answer this question.