British courts regain power to deport terrorist suspects
British courts yesterday won back the power to deport terrorist suspects, criminals and failed asylum seekers after European judges were told to stop interfering.
By Tom Whitehead, Home Affairs Editor, Daily Telegraph, 11:52PM BST 27 Apr 2011
A declaration from all the countries signed up to the European Court of Human Rights said it should only rule on asylum and immigration cases in "exceptional circumstances".
Kenneth Clarke, the Justice Secretary, who had been one of the principal figures behind the declaration, said it was an "important first step" in the wider reform of European human rights laws.
It means, in most cases, that the final decision on who should be removed from a country will rest once again with domestic courts. The move will help to allay concerns that Britain is powerless to eject extremists and terrorist suspects who pose a risk to the public.
Suspects have been able to resist deportation by taking their cases to Europe after exhausting all appeals in the domestic courts. It has meant that firebrand preachers, such as Abu Qatada, have been able to stay in the country on state handouts.
But the influence of the European court in deportation cases will be severely curtailed as a result of yesterday's declaration.
The statement was signed by the 47 members of the Council of Europe, which set up and oversees the Strasbourg court, after a conference on the future of the court held in Turkey. The declaration said the conference "invites the court, when examining cases related to asylum and immigration, to assess and take full account of the effectiveness of domestic procedures and, where these procedures are seen to operate fairly and with respect for human rights, to avoid intervening except in the most exceptional circumstances".
For Britain, that would mean the Supreme Court, in most cases, would become the last point of appeal for those fighting deportation.
It will also ease any indirect pressure on domestic judges who may be concerned their rulings will be dragged off to Europe to be scrutinised.
Mr Clarke said yesterday: "I believe that it is for national parliaments and courts to protect the rights in the Convention [European Convention of Human Rights].
"Strasbourg should not be used as a court of appeal from our own Supreme Court – and it shouldn't step in where cases have already been properly considered by independent, reputable national courts."
Comment:
I am aware that journalists don't always write the headlines and sub-headings to go with their stories. This "British courts regain power to deport terrorist suspects" and this "British courts yesterday won back the power to deport terrorist suspects, criminals and failed asylum seekers after European judges were told to stop interfering" bear very little if any truth at all to the facts.
I was not aware that British courts had lost this power in the first place. In making their decisions the courts have to take into account the terrorist suspects, criminals and failed asylum seekers human rights under the Convention. The ECtHR is an independent body therefore the judges were not told anything of the sort to stop interfering. The straw of truth in all the bullshit becomes clearer later. I would question why a Home Affairs editor is writing about a subject it would appear he knows nothing about whatsoever? For example, under Rule 39 'interim measure' the ECtHR has the jurisdiction to prevent deportation until such time as the Court has had the opportunity to fully consider an application.
Even if Tom Whitehead cannot be blamed for writing the headline and sub-heading, he is guilty of writing this "A declaration from all the countries signed up to the European Court of Human Rights said it should only rule on asylum and immigration cases in "exceptional circumstances"." Following the Izir Conference the representatives of the 47 Council of Europe Member States did make the Izir Declaration which contains 15 points, in addition to 9 proposals and a 36 point follow up plan. Out of 60 points, Tom Whitehead ignores 59 of them and only focuses upon 1 of them. And, even then he misinterprets it to suit his own or the newspaper's agenda. Notice how Tom Whitehead uses the word "should" which in legal terms is a mandatory requirement? Whereas later on he uses the actual word from the document which is "invites", and this has a totally different connotation and is only a request for the Court to consider the issue.
Tom Whitehead is obviously getting paid under false pretences with this "Kenneth Clarke, the Justice Secretary, who had been one of the principal figures behind the declaration, said it was an "important first step" in the wider reform of European human rights laws". There are no principal figures as all 47 Member States are equally represented, and Kenneth Clarke is but 1/47th of the total. The ECtHR has been undergoing reform for 10 years now. Therefore, in my view, the important first step is now a decade old. Wake up at the back there Kenneth!
"It means, in most cases, that the final decision on who should be removed from a country will rest once again with domestic courts. The move will help to allay concerns that Britain is powerless to eject extremists and terrorist suspects who pose a risk to the public". Given that 9/10 applications are declared inadmissable by the ECtHR, and that deportation cases form only a small part of the areas covered by the Court, it follows that in most cases the final decision does already rest with the domestic courts, so no change there then. As for helping to allay fears, if the media and politicians did not create the fear in the first place it would not need to be allayed!
"Suspects have been able to resist deportation by taking their cases to Europe after exhausting all appeals in the domestic courts. It has meant that firebrand preachers, such as Abu Qatada, have been able to stay in the country on state handouts". It is only right that an independent body makes the final decision given that the Executive drafts rules to favour its policy of deporting suspects. Those who have successfully been allowed to stay would most likely suffer torture and or death if deported, and Articles 3 and 2 of the Convention would have been violated.
"But the influence of the European court in deportation cases will be severely curtailed as a result of yesterday's declaration". This has no truth to it whatsoever and is only wishful thinking on the part of Tom Whitehead. As I pointed out earlier it was only an invitation and not an order. Besides, the invite only formed part of the action plan for the future and did not form part of the actual 15 points in the Declaration itself.
"The statement was signed by the 47 members of the Council of Europe, which set up and oversees the Strasbourg court, after a conference on the future of the court held in Turkey. The declaration said the conference "invites the court, when examining cases related to asylum and immigration, to assess and take full account of the effectiveness of domestic procedures and, where these procedures are seen to operate fairly and with respect for human rights, to avoid intervening except in the most exceptional circumstances"". Whilst the Council of Europe set up the Court it does not oversee the Court, it is a separate body. The Court only intervenes when necessary. It would appear that the UK is particularly sensitive to criticisms. I suspect that this is because being an island there is a tendency to be inward looking.
"For Britain, that would mean the Supreme Court, in most cases, would become the last point of appeal for those fighting deportation.
It will also ease any indirect pressure on domestic judges who may be concerned their rulings will be dragged off to Europe to be scrutinised.
Mr Clarke said yesterday: "I believe that it is for national parliaments and courts to protect the rights in the Convention [European Convention of Human Rights]".
As I have already said, the UKSC is in most cases the final point of appeal. I don't think that the judges will be under any indirect pressure. Recently, the UK huffed and puffed and were unable to blow the ECtHR down. Judges are made of sterner stuff than politicians and do not get swayed by populist knee-jerking. Does Ken Clarke also believe in fairies? If Parliament and the courts did not abdicate responsibility in the first place then Strasborug would not have to step in to fill the gap left by a failure to deliver justice.
"Strasbourg should not be used as a court of appeal from our own Supreme Court – and it shouldn't step in where cases have already been properly considered by independent, reputable national courts."
Of course Strasbourg should be used as the final court of appeal in relation to human rights. The UKSC does not have the jurisdiction to strike down offending primary legislation, so it's Supreme only over lower courts. Too frequently, the ECtHR has ruled that judicial review fails to provide an effective remedy. There is nothing reputable about a national court where you have to ask permission to take a case, and where most of the judges act as goalkeepers for the Secretary of State.
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