At lunchtime today the Home Affairs Select Committee will question Theresa May about Abu Qatada. We can clarify issues through detailed and sustained questioning in a way which is not possible in the more partisan Chamber where each member is limited to one question.
We will in particular challenge her claim that the government would be “breaking the law” were it to deport Qatada. How can this be true when Parliament has incorporated the European Convention on Human Rights (ECHR) into domestic law under the Human Rights Act 1998, and the highest UK court ruled it allows Qatada to be deported?
Theresa May says that “The proper processes must be followed and the rule of law must take precedence”. However, the reality is that the government is ignoring the judgment of our highest court based on the law as passed by Parliament, and incorporating the ECHR international law by which the government sets such store.
Instead the government prefers to defer to a European court in Strasbourg, whose judgments are not binding in UK law, even if it conflicts with the judgment of our own highest court, which is binding.
Since the Civil War ministers of the crown have been accountable to Parliament and to our courts. The refusal of ministers to deport Qatada therefore not only places British citizens in danger, but challenges the constitutional basis of our democracy.
The Home Secretary, one can only assume on the basis of advice from the Attorney-General Dominic Grieve, wants us to accept that inter-governmental custom in the Council of Europe, or the provisions of the Ministerial Code, are somehow higher authority than law as passed by the UK Parliament and interpreted by the UK’s highest court.
Were we considering the EU’s European Court of Justice (ECJ) such a position would be legally unobjectionable, however much I might wish to reverse the position politically, since section 2 of the European Communities Act 1972 gives priority to EU law unless it is clearly disapplied by Parliament.
However, Parliament has never given such primacy to the ECHR, or provided for judgments of the European Court of Human Rights (ECtHR) to have direct effect in UK law, in the way that it has for the EU and ECJ.
The Rule 39 ECtHR injunction which the Home Secretary cites therefore has no effect in UK law to prevent deportation. Further, it is far from certain that Qatada’s lawyers would win the domestic injunction from a UK court that they need to make any deportation illegal, since our highest court has ruled that Qatada may be deported, and its judgments bind other UK courts.
Were a lower court to consider that circumstances had so changed in Qatada’s favour (rather than against him given further Jordanian guarantees) as to allow a different decision, then “proper process” and “the rule of law” surely imply reconsideration by the Supreme Court, not assertion by ministers of a higher ECtHR law contrary to parliamentary and domestic judicial authority.
The final refuge of ministers who prefer to put the ECtHR before the law as determined by our Parliament and highest court is that “it would be contrary to the Ministerial Code to deport Qatada”, presumably on the basis of paragraph 1.2 of the Ministerial Code which states:
“The Ministerial Code should be read alongside the Coalition agreement and the background of the overarching duty on Ministers to comply with the law including international law and treaty obligations”
The Home Secretary and, particularly, the Attorney-General make this point rather smugly, as if it were a knock-down argument against deporting Qatada. They ignore the fact that the relevant international law, the ECHR, is now part of our domestic law and therefore ultimately judiciable by our Supreme Court. They should also consider that the Ministerial Code:
a) merely states that it should be read against the background of any duty to comply with international law, and does not itself impose such a duty;
b) suggests that international law is in that context a similar level of constraint as the Coalition agreement
c) is issued by the Prime Minister who judges whether its contents and the conduct of his ministers are appropriate;
d) has not under any previous Conservative Prime Minister referred to a need to comply with international law; and has no statutory force and is “neither comprehensive nor absolute. Ministers are accountable to Parliament, not a piece of paper” (ex-Cabinet Secretary, Lord Butler)
Originally posted on Conservative Home