Last week the UK failed in its attempts to reopen and change the approach of the European Court of Human Rights to the deportation of terror suspects: in the case of Saadi v Italy, in which the UK intervened, the Grand Chamber strongly and unanimously endorsed the Court’s approach in Chahal v UK, reaffirming that deportation is in breach of article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment, where there are substantial grounds for believing the person in question is at real risk of being subjected to such treatment in their home country.
The UK government has long been frustrated about this: ultimately, this block on deportation of terror suspects to North African and Middle Eastern Countries (together with a lack of admissible evidence with which to charge them with any offence here) is what led the government to detain foreign terrorists without trial in the UK, and now to subject them to control orders. Tony Blair mentioned the case, and the need to test the legal point again, in this statement in 2005; and the government has been looking for a chance to take its argument to Strasbourg since then. It looked as though it would get its opportunity in a Dutch case, Ramzy – but the Saadi case came up for hearing first.
I always thought this was a hopeless windmill-tilt, and so it’s proved, in what’s a complete and pretty humiliating defeat for this strand of the government’s strategy. The UK argued (see paras. 117-123 of the judgment) that the risk of torture should be balanced against the danger to the community of the suspect’s continued presence, and that where there is evidence he represents a danger, this should affect the standard of proof he has to adduce of the likelihood of his being tortured, so that he should have to prove it is likelier than not. The court says (paras. 137-149) that the UK’s approach is incompatible with the absolute nature of article 3, and that its argument for balancing the risk of torture against the risk of harm to the community is misconceived. It gives short shrift to the argument about the standard of proof, too.
The Slovenian Judge Zupancic is scathing about the UK’s argument for balance, in his concurring opinion: he says it represents “police logic” which “does not hold water”, and he goes on to call the argument about the standard of proof “intellectually dishonest”. Strong stuff. Judges Myjers and Zagrebelsky also give a concurring opinion which is my view is marred by a lurch into policy discussion, when they agree with the view of the former French Justice Minister Robert Badinter that restricting liberty in pursuit of security against terror is counter-productive. It seems to me this is a question for politicians and citizens, not for judges. But they’re right that only one answer is possible in this case, legally: and the court has given that answer in a way that shows any belief British ministers had that they might change its approach was hopelessly unrealistic.
Tony Blair, in that statement I linked to earlier, suggested the government might amend the Human Rights Act to deal with this if it couldn’t win in Strasbourg – another hopeless idea, as it’s the ECHR itself that needs to be amended if the UK is to deport without breaching international law. I doubt Gordon Brown and Jacqui Smith are silly enough to go down that route.
I really cannot share your faith in the Smith/Brown combo. In my view they are both (and individually) quite ‘silly enough’ to go down that route. Precedents aplenty have been set. After all, since when has realism been any part of Government thinking?
I tend to agree with Unsworth, I’m afraid….
Pardon my ignorance but aren’t the ECHR judges from such diverse countries as Albania, Slovenia etc? Not exactly places with a good human rights background surely. Why on earth we signed over our rights to these people is amazing.
Yeah, the cheek of those pesky Albanians & Slovenians – they’ve all got luxury torture chambers at home for their domestics yet they presume to tell us who we can and can’t send off to the rack.
You see John, the nationality of the judges isn’t all that important, as they’re simply coming to the only logical conclusion looking at the text of the convention itself. Britain campaigned heavily for the ECHR, virtually wrote the thing, got everyone else to sign up, and now throws its hands in the air when it doesn’t let us do whatever we want.
You’ve reminded me of this excellent post from this excellent but sweary blog.
The Saadi case appears to contain a potential sting in the tail since the court did not prevent governments entering into “diplomatic assurances” though it added that the effect of such assurances would depend on the circumstances at the time. This is woolly language! The convention is either absolute or not.
The British government’s argument before the court was just about the most morally bankrupt argument ever presented to a court of law. Would the person who knowingly took the victim to the murderer escape criminal liability? Our domestic law would be seriously defective if he did and yet that is precisely what the UK argued for before the court.
Mr Hargreaves, the courts do appear to judge each deportation attempt on its own merits. For example, in Abu Qatada v Home Secretary SIAC dismissed Qatada’s appeal, one of the reasons being that the MOU with Jordan was likely to be adhered to, while in DD v Home Secretary the court found there was a real risk of torture despite the well-intentioned diplomatic assurances from the Libyan government.
Of course dear old Tony Blair wondered why we needed any such assurances at all (see Youssef v Home Office) from countries known to practice torture, and indeed infringe other rights, such as the right to a fair trial.