I stuck to legal analysis in my last post on Abu Qatada, because I think that’s more interesting than writing about how wicked he is and/or how wicked torture is. But reading this extraordinary piece by Victoria Brittain at Comment is Free, I feel a duty to respond.

It’s fair enough for people to be concerned about our government and courts potentially turning a blind eye to torture abroad. But Victoria Brittain is saying something else here: that no evidence has ever been produced justifying Abu Qatada’s deportation on grounds of national security, that he has been unable to know and meet the case against him, and that racism is the underlying reason for the Lords judgment.

She says this:

Othman has never been charged or tried for any crime in this country. The evidence on which the law lords made their decision was heard in secret, and neither Othman nor his lawyers have the right to know what it is so that it could be challenged. This system of secret evidence against Muslims accused of terrorism is manifestly unjust…

The first sentence is quite true, but Brittain is implying that you need to have committed an offence in order to be deported: you don’t. The question isn’t whether he’s committed any offence, but whether his deportation would be conducive to the public good because he’s a risk to national security; and whether there’s a real risk he’ll be tortured in Jordan.

The second sentence is misleading, though. Brittain’s clear implication, speaking about secret evidence directly after her reference to Abu Qatada’s never having been charged, is that the allegation he’s a risk to national security is based on secret evidence heard by the Lords. But it isn’t. For a start, the Lords heard no secret evidence: see para. 3 of Lord Phillips’s speech. The conclusion that he’s a risk to national security is that of SIAC, which set out the government’s case against him (see para. 18 of its judgment) and went on to say (see para. 19):

[The Home Secretary’s] statement then provided nineteen pages supporting and detailing those allegations. We make that point lest it be thought that the Appellant was generally unaware of the case against him; and though there was closed material as well, he had a great deal of open material which he could have answered, if answer he had. We now turn to the detail, drawn largely from the [Home Secretary’s] statement …

SIAC then openly details, over 38 paragraphs and 3,500 words, the particulars of the government’s case supporting the contention that Abu Qatada is a key Islamist ideologue. So much for Brittain’s contention that the evidence is secret and that Abu Qatada has been unable to challenge it. SIAC says at paras. 70-71 and 88-89 that

We accept the summary and detail of the [Home Secretary’s] case against the Appellant … In the light of the Appellant’s stance, that is scarcely surprising. He had plenty of opportunity to refute that evidence and has declined to try to do so. … the open allegations against him are sufficiently extensive for his failure to answer them on the grounds that there is closed material to be no more than a convenient excuse. The simple fact is that he has provided no answer and we believe that he has provided no answer because in essence he has none.

The national security basis for the deportation is well proved… We have reached that conclusion on the basis of the material which we have set out above. There is however also closed evidence which materially supports those conclusions.

So the “national security” case is not primarily based on secret evidence, as Victoria Brittain implies. It is based on well-known, publicly disclosed allegations which Abu Qatada has apparently never seriously contested.

Brittain also says:

The British security services and the media have successfully demonised these men, and in particular mythologised Othman as posing a super-danger to our society. No proof of any of the damning things repeatedly said and written about him has ever been produced. The fact that he condemned both 9/11 and the London 7/7 bombings has been conveniently forgotten.

I think I’ve dealt with her accusation that Abu Qatada has been “demonised” and “mythologised”. And shown that evidence of the damning things said about him has been produced, contrary to what she says, and not contested. If you want any more, well, Jamal Al-Fadl testified in a New York court before 9/11 that Abu Qatada was a member of Al Qaeda’s “fatwa committee”. See page 53 of the transcript, marked with page number 210 at the top. It is wrong to suggest that no evidence has ever been produced to show Abu Qatada’s links to terrorism.

It’s also wrong to suggest that what he said about 9/11 and 7/7 have been “conveniently forgotten”: in fact, SIAC refers to them at paras 67 and 82 of its judgment respectively. SIAC simply did not believe his condemnations of the attacks were sincere, in the light of the other public evidence of his views. That’s what Victoria Brittain has conveniently forgotten.

The House of Lords case was about torture, and whether deporting Abu Qatada would breach his human rights either by leading to him being tortured or imprisoned on the basis of evidence obtained by torture. It was not about whether Abu Qatada is a risk to national security: that was not an issue in the appeal (see para. 61 of Lord Phillips’s speech).

To be concerned about the torture and fair trial issues, and to argue that the courts have been too ready to accept Jordanian assurances, seems to me legitimate and reasonable. But to suggest no evidence that Abu Qatada represents a threat has ever been put forward, that his human rights have simply been ignored or dismissed by judges, and that the Lords ruling is motivated by racism against a wholly traduced, harmless man, is not only laughable – to drag human rights concern down to the level of smears, to demonise the courts and to mythologise Abu Qatada in this way is a disgrace.

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.