Deporting to torture

The government is trying out a new procedure for deporting non-British subjects suspected of involvement in terrorism, not convicted of any offence, but not hitherto able to be deported to their countries of origin because of the likelihood that they would be tortured, or worse, on arrival.  For a long time people in this category couldn’t be deported but couldn’t be locked up in this country either, unless there was evidence against them of an offence against the law on which they could be convicted and jailed: so they were effectively free to stay in Britain with no constraints on their activities apart from being, presumably, under surveillance by the security authorities.  Detention in prison was legally possible only for a limited period while the suspect awaited deportation:  he or she could not be detained if there was no realistic prospect that deportation would become possible.

 This was an obviously unsatisfactory situation, especially after 9/11 as the terrorist threat became more real.  The government accordingly took powers to detain indefinitely and without trial foreigners suspected of being terrorists, with a right of appeal to the Special Immigration Appeals Commission (SIAC) on the issue of whether the home secretary’s detention order was reasonably justified — something well short of a criminal trial for specified offences.  To exercise this power of detention without trial, the government had to declare a State of Emergency under which it registered a derogation or exemption from the relevant provisions of the European Convention of Human Rights forbidding detention without trial.  But last December the Law Lords, in a historic decision, struck down and quashed the derogation as being disproportionate to the threat with which it sought to deal, and declared the power to detain without trial incompatible with the Convention.  The government’s response to this unwelcome defeat by England’s highest court was to introduce, after a prolonged battle with a sizeable minority of MPs and a sizeable majority in the House of Lords, a new provision under which unconvicted terrorist suspects, whether British or foreign, could be subjected to Control Orders limiting their freedom of action, amounting virtually to house arrest.  In order to get this draconian measure through the Lords, the government had to promise that it would be independently reviewed during its first year and that there would be an opportunity to renew, amend or repeal it when yet another anti-terrorism Bill is published in the autumn of this year (2005) and put before parliament next spring.  Many of us who regarded the Control Orders régime as unacceptably illiberal, amounting as it does to harsh punishment over an indefinite period of time of people who have not been charged with, still less convicted of, any crime, have been arguing that the Act should not be renewed next year but that there should be new provisions enabling anyone reasonably suspected of involvement in terrorism to be charged with a specific offence, or offences, and tried in a proper criminal court.  This would restore the essential position that no-one should be imprisoned or otherwise punished except by a court after conviction and sentence by a judge and jury — not on the say-so and suspicion of a politician. 

The government’s new ploy is to get from the countries which routinely practise torture, and to which it has therefore been impossible to deport suspects, solemn promises that deportees received from Britain would not be tortured, and that the honouring of these promises would be monitored by a new independent body with members nominated by both governments.  An agreement on these lines has already been secured from Jordan.  More are said to be imminent, including with Algeria and Egypt.  Meanwhile ten foreign nationals have been arrested and detained pending deportation to their countries of citizenship as soon as the relevant agreements have been signed and the monitoring bodies appointed.

A battle royal between the government and the British judiciary now looms, as ministers have explicitly foreseen.  The ban on the deportation of aliens to countries where they are at risk of torture stems from the European Convention on Human Rights and the way it has been interpreted by the European Court of Human Rights, whose decisions are binding on the British courts.  Inconveniently for the government, the European Court (which, like the Convention, has nothing at all to do with the EU) has already declared in the ‘Chahal’ case that even when the receiving country has made a formal promise not to torture a deportee, such deportation would be contrary to the Convention if the receiving country could be shown regularly to practise torture.  A full account of this case and its implications for the government’s hopes is, fortunately, available on Tony Hatfield’s magisterial blog, to which anyone interested is strongly recommended to refer.  Tony concludes his posting by saying:  "The letter by Human Rights Watch to the Prime Minister of Jordan says it all."  The Human Rights Watch letter should also be required reading.

We can assume that the ten men now back in jail ‘awaiting deportation’ will exercise their right of appeal, initially to SIAC.  Whichever side loses in SIAC can then probably appeal further to the Court of Appeal and thence to the Law Lords.  If the suspect whom the government has ordered to be deported loses in the House of Lords, he can in principle then appeal to the European Court of Human Rights.  Each of these judicial bodies will then have to decide whether the suspect "would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State" (Article 3 requires that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment"), given (or despite) the assurances by the receiving country that the deportee will not be ill-treated.  The Chahal ruling makes it unlikely, anyway at first sight, that the courts will allow these deportations to go ahead.

Interestingly and unusually, the prime minister himself has explicitly and publicly acknowledged the likelihood of obstruction under Chahal by the courts.  In his [in]famous 12-point plan statement on 5 August 2005, Tony Blair made tthe following extraordinary threat:

However, the circumstances of our national security have now self-evidently changed and we believe we can get the necessary assurances from the countries to which we will return the deportees, against their being subject to torture or ill-treatment contrary to article 3. We have concluded a Memorandum of Understanding with Jordan and are close to getting necessary assurances from other relevant countries. For example, just yesterday, I have had very constructive conversations with the leaders of Algeria and Lebanon. There are around 10 such countries with whom we are seeking such assurances.

France and Spain, to name just two other European countries, do deport by administrative decision. The effect is often immediate and in some cases the appeal is non-suspensive in other words it takes place outside the country. The assurances given by the receiving nation are adequate for their courts and these countries are also subject to the ECHR and apply it directly.

So it is important to test this anew now, in view of the changed conditions in Britain. Should legal obstacles arise, we will legislate further, including, if necessary amending the Human Rights Act, in respect of the interpretation of the ECHR. In any event, we will consult on legislating specifically for a non-suspensive appeal process in respect of deportations.  [My emphasis — BLB]

Mr Blair, a barrister (however inexperienced in the law), knows and implicitly admits that legislation by the British parliament can’t  amend the Human Rights Convention or relieve Britain of its obligations under the Convention in international law:  and there is no loophole for derogation in an emergency in this case.  So his warning to the courts, unless they uphold the system of deportation with assurances, is that the government will invite parliament to pass a new law requiring the domestic courts to interpret the Convention in ways that will be convenient for the government.  It’s barely credible that the head of a government in a democracy could utter such a threat of unconscionable interference with the absolute right of the judiciary to interpret the law, a primary and essential function of the judiciary.  It ought to be almost equally incredible that any government could expect to get such legislation through either House of Parliament, although in these dog days of a supine back bench and an elected chamber in thrall to the party whips, I suppose anything’s possible:  it’s ominously significant that similar threats against the judges have been uttered in recent days not only by Mr Blair but also by the inimitable Mr Blunkett, and, in a striking return to form, Michael Howard (in a newspaper article headed "Judges must bow to the will of Parliament”), thereby casting doubt on the willingness of the official Opposition which he leads to stand up for the rule of law when the time to be counted arrives in parliament.  It would however surely be necessary to use the Parliament Act to get such a brazenly unconstitutional measure past the House of Lords.  And even after a prolonged process of that kind, the deportations would still be open to challenge in the European Human Rights Court, itself unlikely to accept instructions from Mr Blair on how it should interpret the Convention.  All this may well take many months, perhaps even years, to work through the system.  Meanwhile the suspects remain in prison, uncharged, untried, unconvicted.

But our prime minister has an answer to that, too.  Even if our courts and the European Court uphold the government’s plan for deporting to torturer countries which have promised not to torture our deportees, notwithstanding Chahal, Mr Blair has pledged to introduce another new law under which suspects will be deported first, and only allowed to appeal against their deportation afterwards — from the country to which they have been consigned, by definition one that habitually practises torture.  Even if the deportee enjoyed sufficient freedom on arrival to launch an appeal in the British courts at long distance, it’s very difficult to imagine how he could assemble witnesses and other evidence in support of his challenge;  and a British lawyer acting on his behalf in Britain would be impossibly hampered by the difficulty of communicating frequently and in detail with his client.  Is our parliament really persuadable to enact such a blatant denial of due process and the rule of law?

The prime minister asserts, no doubt correctly, that in going down these shameful paths Britain will be following in the footsteps of France and Spain, both also signatories of the European Convention.  I hope that either these alleged precedents can be shown to be invalid, or parliament and the courts will address the government’s proposals on their merits, or lack of them, and consign them to the dustbin of the history of arrogant and illiberal government where they belong.

Postscript (15 August 2005):  Since the entry above was written, Tony Hatfield has published on his blog a further article which deals (in my view definitively) with the question, raised by the prime minister:  if France can deport terrorist suspects to countries where torture is often practised without apparently any breach of its obligations under the Convention, why can’t we?  Tony Hatfield’s explanation, backed up by chapter and verse from past decisions of the Law Lords, is that France adopts an interpretation of the Human Rights Convention under which the ban on deportation to torturing countries applies only where the torturing is done by the state (the government or its agencies).  (The same thing applies similarly, but not necessarily in detail, to Germany, and presumably to Spain.)  This interpretation has been repeatedly rejected both by successive home secretaries and by the English courts, on grounds which look pretty impregnable, although they rely in part on provisions of existing UK laws that could in principle be amended by parliament if MPs and the Upper House could be persuaded to stoop that low. 

Tony Hatfield’s post on this should be read in conjunction with his earlier piece about the directly relevant Chahal case and its implications, recommended above.  Both postings provide invaluable information and arguments for those who will need to decide, in the end, whether the government’s proposals are a sensible way of getting round an awkward obligation under international law, or whether they constitute a betrayal of British traditions and principles of long standing.

Brian