The prisoner's dilemma
Published in: Daily Mail
So what should be done in Britain about foreign terrorist suspects and the European Court of Human Rights?
In the wake of the decision yesterday by Britain’s Special Immigration Appeals Commission to free the al Qaeda mastermind abu Qatada on bail (true to indefensible form, the BBC reportedly instructed its journalists not to make a ‘value judgement’ by calling ‘an extremist’ the man described by Home Secretary Theresa May as ‘a serious risk to our national security’ and a dangerous foreign national’), and with the prospect now looming that other notorious terrorist suspects may be similarly freed, virtually everyone from the Home Secretary downwards is outraged and declares that something must be done. But what?
The debacle was inevitable ever since the European Court of Human Rights moved the goalposts by ruling that Britain could not deport abu Qatada to Jordan to stand trial since some of the evidence in such a trial there might come from someone who might have been tortured.
Like everyone else (apart from the Justice Secretary Ken Clarke, who disingenuously says the decision by an English judge to free abu Qatada on bail had nothing to do with the ECHR), Mrs May thinks this is absurd, preposterous, outrageous. But as her critics have pointed out, such huffing and puffing merely underscores the fact that she is proposing nothing to remedy this situation – because she cannot. Her hands are tied because Britain is tied up with the ECHR.
The frustration behind the call for the British government to ignore the court’s ruling and immediately put abu Qatada on a plane to Jordan is entirely understandable. But the proper course of action is for Britain to remove itself altogether from the jurisdiction of the ECHR – and, if unavoidable, even derogate from the European Convention on Human Rights itself.
I have long argued that this should happen, and not just in respect of the issue of deporting foreign terrorist suspects. For the Convention embodies a paradox – a noble premise in defence of freedom which nevertheless rests upon another premise that damages freedom.
It holds that freedom can best be guaranteed through asserting a set of human rights which are universal and therefore unchallengeable, and must thus trump the laws of any one country. Yet in asserting its own universal authority it therefore destroys a country’s freedom to assert its own values through its own laws. And since these ‘universal’ rights are virtually all qualified by contrary rights, it hands the judges of the ECHR the wholly undemocratic power to make what are in effect political judgments about the balance of those rights.
The inevitable result, which is now causing such apoplexy in Britain, is that a court which has a highly politicised and ideological concept of its own role as the enforcer of a universal and secular value system makes rulings which are inimical to the democratic right of a signatory country to assert its own interests and values through its own laws. Yes, the UK Parliament remains sovereign in that it can decide to ignore the rulings of the ECHR; but to do that would bring it into collision with it and would be the wrong thing to do. If you sign a treaty, you stick to it. If you don’t like the treaty, you derogate from it.
And for the same reasons I have always opposed Britain’s own Human Rights Act, for although this supposedly ‘brings human rights home’ to the jurisdiction of the domestic courts it still renders domestic values and interests subservient to the supposedly superior ‘universal’ rights of the European Convention, arbitrated by the increasingly and necessarily politicised judges and so often in direct conflict with the beliefs and interests of the British public.
In any event, the idea that Britain needs a codified human rights law to guarantee freedom is absurd. Britain is the historic cradle of liberty; and its own concept of freedom to do what you want unless there’s a law against it, as opposed to the historic European belief that freedom is what some higher authority codifies and bestows upon you, was once the only true liberty. Was, because under the yoke of human rights law the concept of liberty which once characterised Britain has become a shadow of its former self. So for all these reasons, we should now bid farewell to the ECHR.
There is, however, an outstanding issue of how to reconcile the rights of a terrorist suspect under the rule of law with the right of a country to protect its citizens from the danger posed by that individual. The essential problem with the abu Qatadas of this world is the same problem which America tried to resolve through Guantanamo Bay. This is, in essence, that al Qaeda and similar organisations are in a novel category which currently has no legal status. This is because what they are involved in has the strategic aims and capacity for mass casualties which are associated not with terrorism but with war; yet because they are not conventional armies representing identifiable states, they are not legally recognised as waging war. So hovering between terrorism and war, they fall into a legal no-man’s land.
The difficulties into which America has got itself over Guantanamo, along with Britain’s difficulties over abu Qatada et al, are due to that legal lacuna. Terrorist suspects like abu Qatada or those held in Guantanamo cannot be tried in an ordinary criminal court because any evidence would compromise sensitive sources and put others’ lives at risk, of or because evidence that would be admissible in court is not available due to the circumstances of their capture, and so on. And yet the authorities have information about these people which suggests so strongly that they pose a serious threat to the state that it would be an act of reckless irresponsibility to release them.
To this dilemma I believe there is one persuasive solution: to set up special courts, under judicial oversight but where the rules of criminal cases do not apply -- for example, no jury, hearings in camera, specially vetted lawyers and so on. The crucial thing is the judicial oversight to ensure that such hearings comply with the rule of law; but they would nevertheless be constructed so that they themselves would not pose a threat to national security. Britain did something similar in Northern Ireland during the Troubles there when it set up ‘Diplock’ judge-only courts. Those courts were designed to meet a different security and legal challenge; but the same principle surely can be applied to today’s security and legal dilemma.
These are difficult issues, and we are in a muddle over them. The situation is far too dangerous for us to continue to faff around like this. It’s time for some bold and decisive statesmanship to make us safe as well as free within democracy and the rule of law.