UK Liberty

Here we go again

Posted in law and order, politicians on liberty by ukliberty on May 3, 2007

Prime Minister’s Questions, Wednesday 3 May 2007.

Photo of John Maples John Maples (Stratford-on-Avon, Conservative) | Hansard source

Recent court decisions [example – ukliberty] have left us in the extraordinary position that the Government can neither deport nor detain dangerous foreign terrorists.


With regard to deportation: we are prohibited from deporting people determined to be a risk to national security if the court determines they would be at risk of torture; we are not prohibited from deporting such people if the court determines they would not be at risk of torture.

A recent example of the latter is Abu Qatada v. the Secretary of State for the Home Department.

On 26 February 2007 the Special Immigration Appeals Commission (SIAC) dismissed Qatada’s appeal against deportation to Jordan, and one of the reasons was that the MOU with Jordan was likely to be adhered to.

Another example is Y v. the Secretary of State for the Home Department.

With regard to detention: we are prohibited from indefinitely detaining suspected terrorists without trial; we may of course detain people who have been convicted, and we may of course detain people for a reasonable time pending trial.

It is not at all difficult.

Perhaps Mr Maples is deliberately obtuse, perhaps he is unaware of Qatada, perhaps he supports detention without proof of guilt, I do not know.

These decisions flow directly from the Human Rights Act.

Incorrect. The HRA has nothing to do with it. Indeed, as SIAC said in the Libyan case,

This outcome is not a consequence of the enactment of the Human Rights Act in 1998. The UK was party to the ECHR, the judicial interpretation or extension of which was revealed in Chahal, long before that decision, and the UK would have been obliged in any event to give effect to that decision as part of the established jurisprudence of the Strasbourg Court.

Mr Maples went on to ask,

As it is within the power of this House to amend the Act and within the power of the Government to file a derogation from the European convention, why does the Prime Minister not introduce amending legislation so that this situation can be remedied?

It seems to me it would be highly controversial to derogate from Article 3 (the prohibition against torture), if that is indeed possible – apparently it is not (see below).

Let’s examine the Prime Minister’s response.

Photo of Tony Blair Tony Blair (Prime Minister) | Hansard source

Because it is not the problem. The problem is the European convention on human rights. The reason why there is a problem is the court case, I think in 1996, in relation to—I think I am right in saying this—those who were alleged to be engaged in terrorism in respect of India at the time. As a result of that case—I think it is called the Chahal case—this difficulty has been created.


Chahal had indefinite leave to remain in the UK. If I understand correctly, he was not alleged to have committed acts of terrorism in the UK. However, his activities as a Sikh separatist brought him to the attention of the Indian and UK authorities.

The UK Government decided his presence was not conducive to the public good and attempted to deport him. Chahal resisted deportation on the grounds that he would face a risk of torture in custody in India contrary to Article 3 of the Convention.

By twelve votes to seven, the European Court of Human Rights (decision summary) held that (my emphasis in bold),

79. Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct.

Unlike most of the substantive clauses of the convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation.

80. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion.

In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees.

It is worth noting that the minority view was that if there was “substantial doubt” as to the risk of torture, the threat to national security might justify the deportation.

Back to Blair:

 We are trying to get that decision overturned in respect of the European Court of Human Rights,

Correct. It is doing so by intervening, along with the Governments of Lithuania, Portugal and Slovakia, in the case of Ramzy v The Netherlands, concerning the proposed deportation of the applicant, Ramzy, from the Netherlands to Algeria, where it is alleged that he faces torture.

The Government supports the minority view in Chahal.

and it is essential that we do so [meaning, intervene in Ramzy – ukliberty], because where I completely agree with the hon. Gentleman is that we cannot have a situation in which people come to this country and engage in acts of terrorism, inciting terrorism or encouraging terrorism, and then we are told that we cannot deport them back to their own country, even with a memorandum of understanding with that country, when they simply say, “We may be mistreated when we go back there”,

I cannot interpret this in any other way than a deliberate inadvertant misrepresentation of the facts. In addition it seems an insult to the courts’ intelligence and ethics, and an all too casual dismissal of considered judgement – 433 paragraphs of it, in the Libyan case.

It is not the suspected terrorists who “simply say” they “may be mistreated”, and consequently ‘let off’ by the courts, and anyone who truly believes that should in my opinion immediately resign as Prime Minister.

It is the court that determines whether or not they would be at risk of torture. In the case of the MOU with Libya, the court determined there was a risk despite the MOU – despite the good intentions and assurances of the Government of Libya.

Indeed, if I understand correctly, the Government (or at least its witnesses) agreed there was some risk in that particular case; certainly without the MOU, there was a real risk of torture in the Governmen’s opinion.

So, there seems to be – in this specific case anyway – no dispute over the risk. The Government’s argument in these cases is that they should be able to deport despite the risk. However, it is established jurisprudence that Article 3 is absolute.

despite what they are doing here. [Interruption.] The hon. Gentleman asks what we are doing about it. What we are doing is trying to get that decision overturned.

It is not correct, however, that it comes about as a result of domestic legislation. It comes about as a result of that case, decided under the last Government and under the European convention on human rights.

Um… it seems dishonest to imply the previous UK Executive is to blame for a European judicial decision, does it not?

That aside, regardless of whether or not you believe we should be allowed to deport such people even though there is a risk of torture, I am certain that you would agree that the courts should apply the law as they find it, not as they would wish it to be.

Now, the Government accepts on the one hand the absolute nature of Article 3, the prohibition against torture, but on the other hand it insists this shouldn’t be absolute – that national security should be balanced against the risk.

This seems a difficult position to be in.

By the way, the UK is also a signatory to the United Nations Convention Against Torture.

If I understand correctly, this is equally absolute. Therefore any deportation would breach our international obligations in that context as well – I do not know what the consequences would be of that.


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  1. […] I have an older article on Blair’s dishonest whinging about this interpretation with regard to…, which may provide some useful context (also this one). […]

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