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Thursday, February 09, 2012

Politics: Cameron cannot escape a verdict on Strasbourg

Politics: Cameron cannot escape a verdict on Strasbourg

James Forsyth,The Spectator

‘I don’t really worry about David and the European Court of Human Rights,’ one right-wing member of the then shadow cabinet told me months before the last election. After a fortifying mouthful of steak, he continued: ‘The truth is that, whatever the policy is now, as soon as the court tells him he can’t deport some terrorist and the papers start giving it to him in the neck, he’ll go absolutely mental and insist on reform.’

The moment has arrived. Abu Qatada — believed to have been the intellectual inspiration for several terrorist groups and, at one point, Osama bin Laden’s ambassador in Europe — is to be freed on bail because of a ruling by the court in Strasbourg. The government is trying to appeal against the verdict.

And Cameron is indeed exasperated. He protested to the Council of Europe ahead of Qatada’s release that ‘the problem today is that you can end up with someone who has no right to live in your country, who you are convinced — and have good reason to be convinced — means to do your country harm. And yet there are circumstances in which you cannot try them, you cannot detain them and you cannot deport them.’

Britain currently chairs the Council of Europe, the international organisation behind the court, and the Prime Minister has tried to broker an agreement among its 47 members to grant national governments more flexibility in such cases. But almost no one in No. 10 thinks there is much chance of it being achieved before our chairmanship ends in May. Anything that requires 47 countries to agree is, in the words of one Downing Street aide, ‘just not going to happen’.

Why, then, is Cameron is pursuing this approach? There are two possible explanations. The first is that it’s a way to appease critics of the Strasbourg court in his parliamentary party and the press. Whenever a controversial case comes along, he can present himself as the leader who is trying to change the unfair system. The second, more interesting theory is that the negotiations are a prelude to more radical action, and are designed to mollify those who instinctively favour sticking with Strasbourg — among them the Liberal Democrats, Justice Secretary Ken Clarke and, crucially, the Attorney General, Dominic Grieve. If Cameron wishes to retain the support of this group, he must show that he has exhausted every other option before he tries to seize back the court’s powers.

But he will find it almost impossible to keep both sides happy. A growing number of his backbenchers — and of his voters — will only be happy when Britain is free from the Strasbourg court’s jurisdiction. By contrast, the court’s supporters view Britain’s membership of it as an international badge of honour. If we ever did leave, the letters pages of the Times and the Guardian would be full of the liberals declaring that Britain was now worse than Belarus.

In Whitehall, officials are increasingly confident that they can make the Abu Qatada case go away. They believe they can strike a quick deal with Jordan that makes his extradition acceptable to Strasbourg. All it would take, they believe, is a guarantee from the Jordanians that evidence obtained by torture would not be used in the trial. The only obstacle is Amman’s irritation at the aspersions cast on its legal system by this demand.

But this will not solve Cameron’s Strasbourg problem, because the European Court of Human Rights has also given him another, much greater headache. In its wisdom, it decided that prisoners should be able to vote. That can only happen if Parliament changes British law, and the House of Commons has made it abundantly clear that it won’t vote to do so. After a backbench debate a year ago, MPs divided 234 to 22 against accommodating the court’s decision.

In response, the government — which had planned to accept the verdict — has appealed against it. Eventually, however, the legal routes will be exhausted. Cameron will have to choose between four unappetising options: trying to ram a Bill through Parliament against the settled will of his own party; accepting fines from the court and orders to pay compensation to disenfranchised prisoners; flouting the court’s ruling; or leaving the court’s jurisdiction.

The last two scenarios are politically the least worst. But those in the Cameron circle wonder nervously about what the Attorney General would do if the Prime Minister pursued either of them. Grieve is a lawyer’s lawyer. He has a reverence for the European Convention on Human Rights that few Conservatives share; his maiden speech applauded the idea of incorporating it into British law. Early in Cameron’s leadership, Grieve saw off an attempt to make it Conservative policy to try to pull out of Strasbourg’s jurisdiction. He persuaded colleagues that all that was needed was a British bill of rights that would make the court take particular account of Britain’s concerns — what lawyers call a ‘margin of appreciation’. The coalition then agreed to let a commission decide on this bill of rights. But it has been stillborn. The Liberal Democrats insisted that its membership be split evenly between the two parties and then proceeded to pack it with ideological supporters of the status quo.

Grieve poses a particular problem for Cameron because there is no chance of the Prime Minister convincing the Liberal Democrats to support something if his own attorney general won’t. The Lib Dems cannot afford to be outflanked on human rights by a Tory. When I asked one Conservative close to Cameron what the solution was, he shot back: ‘Deport Dominic Grieve.’

That’s not an option, but there is some chatter that in the cabinet reshuffle widely expected to occur this summer, Grieve could be moved on from his current position. He is increasingly regarded as a ‘roadblock to reform’, not just on this issue but in a whole host of areas. Colleagues complain that the legal advice from his office is overly cautious and exacerbates the problems caused by the Equalities Act and the Human Rights Act.

What is certain is that Cameron’s hope that the Strasbourg question could be kicked into the long grass until the next election has been thwarted. The Prime Minister, who had a picture of Harold Macmillan above his desk in opposition, is finding out that a government’s biggest problem really is ‘events’.


Given that the UK granted Abu Qatada asylum, Cameron is wrong to say he has no right to be here. Personally, I would not be convinced of the truth of information obtained by torture because a torture victim is likely to say anything to stop the pain. We cannot try him because there is no evidence to support a prosecution where the accusation has to be proved in an open court, and any evidence has to be disclosed to the defence by the prosecution. He has been detained for over 6 years, awaiting deportation to Jordan. There are limits to removing someone's liberty. The whole idea of deportation bothers me because it is a penalty only invoked upon foreigners.

As the UK never had the powers in the first place, I fail to see how we can seize back the Court’s powers. We surrendered sovereignty when we signed up to the Council of Europe.

It is disturbing that Tory backbenchers and Cameron's voters seek to be free from the ECtHR's jurisdiction. The purpose of the Court is to rule whether Member States are abusing the human rights of citizens. Those opposed to this must surely support abuse of human rights. It was precisely because of this that the Council of Europe was formed and the Convention drafted.

The legal route was exhausted 6 years ago when Hirst v UK (No2) was decided. According to the ECHR the decision is final. Therefore, the UK has been acting illegally for that period by ignoring the decision.

I don't agree that flouting the court’s ruling; or leaving the Court’s jurisdiction are politically the least worst options. The former is an attack upon human rights, democracy and the rule of law. Leaving the Court's jurisdiction means leaving the EU, and means that there will be no check upon State abuse of human rights and that's a frightening prospect for the ordinary citizen in the UK. I also don't believe that adopting a British Bill of Rights will solve the problem.

Do the Equalities Act and the Human Rights Act cause problems or is it that those who wish to ignore them find doing so causes problems? Reforms which seek to diminish rights are not to be welcomed, because this is going backwards and not forwards.

Labour's mistake was kicking the Strasbourg question into the long grass, and it was the Tories and LibDems mistake for not challenging this when in opposition. Strasbourg simply cut the long grass.

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