The Home Secretary made a statement to Parliament on Abu Qatada saying that we are “we are resuming his deportation”. It is good news that Abu Qatada is back in custody and that the Home Secretary notes “the judgement (sic) of British courts that Qatada should be deported”.
Unfortunately, the Home Secretary will not just act on the judgment of the British courts so as to put Abu Qatada straight on a plane back to Jordan. Instead, even though deportation has been approved by our highest court, then the House of Lords and now the Supreme Court, she tells Parliament that the government would be “breaking the law” by doing so and that “The proper processes must be followed and the rule of law must take precedence”.
Why then does the Home Secretary set aside “the judgement of British courts that Qatada should be deported”? I cite fully below the section of her statement relating to this, as well as her replies to me and Dominic Raab when we pressed the point, but in essence the government position, which will reflect the advice of Attorney-General Dominic Grieve, is that it should act on the basis of what the European Court of Human Rights (ECtHR) says, rather than 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, as section 2 of the European Communities Act 1972 gives priority to EU law unless it is clearly disapplied by Parliament.
However, that is not the position with respect to the ECtHR. Parliament incorporated the European Convention on Human Rights (ECHR) into domestic law under the Human Rights Act 1998 so that UK courts could rule on it, as the House of Lords has done saying that Abu Qatada may be deported, but we have not made ECtHR decisions directly applicable in UK law.
So it makes no sense for Theresa May to say “As soon as we issued a deportation notice to Qatada, his lawyers would win an immediate injunction preventing us removing him … no Council of Europe member state now ignores Rule 39 injunctions, which Strasbourg issues to prevent deportations”.
A Rule 39 ECtHR injunction would have no effect in UK law to prevent deportation, while it is far from certain that Qatada’s lawyers would win an injunction to prevent deportation from a UK court. The House of Lords has ruled that Qatada may, or according to the Home Secretary should, be deported, and its judgments are binding on other UK courts.
Were a lower court to consider that circumstances had so changed in Abu Qatada’s favour since the House of Lords had ruled (rather than against given further Jordanian guarantees), 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.
Since the Civil War ministers of the crown have been accountable to Parliament and to our courts. The assertion that claimed inter-governmental custom in the Council of Europe, or the provisions of the ministerial code, represent higher authority as to what constitutes lawful action by UK public servants is as novel as the Attorney-General’s record as a QC.