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David Mellor, former Home Office Minister, says we are under no legal obligation to obey the Strasbourg Court’s ruling on Abu Qatada. Is he right? No one’s denied it

If he is, let’s have this poisonous man on the next plane back to Amman

By on Wednesday, 15 February 2012

Home Secretary Theresa May has said 'we are doing everything we can within the existing legal regime to deport [Abu] Qatada' (Photo: PA)

Home Secretary Theresa May has said 'we are doing everything we can within the existing legal regime to deport [Abu] Qatada' (Photo: PA)

David Mellor, who used to be a rather good Heritage Secretary (jocularly known at the time as the “minister for fun”) and was before that, among other things, a Home Office Minister, has just sounded off on the subject of the supposed powerlessness of the Government to deport the “hate preacher” Abu Qatada back to Jordan, because of a ruling by the European Court of Human Rights.

It’s all wrong, he says: we are under no legal obligation at all to obey this body, which – if he is right – we would be justified in referring to as the European so-called “Court” (because it actually has no jurisdiction we need obey). Have a look at this:

Abu Qatada could be deported to Jordan if the Government chose to reject a European Court ruling, a former Home Office minister said today.

David Mellor said Home Secretary Theresa May should simply ignore the ruling in Strasbourg that prevents Britain throwing out the hate preacher because he could stand trial for terrorism offences involving evidence gathered through torture.

Speaking after Qatada was released from prison, he said: ‘The ruling in Strasbourg is a gnat-bite that the British Government is totally free in law to ignore [my emphasis]. ‘There is clearance up to the level of the Supreme Court here to deport him to Jordan, which is a friendly state with a civilised government.

‘If the Home Secretary chose, as she should, to put him on a plane this morning and send him back, she would have broken no laws.

He blamed ‘paralysis’ within the coalition for Mrs May’s failure to act.

He said: ‘A combination of [Justice Secretary] Ken Clarke and the Liberal Democrats makes this a political fight she feels she cannot win so she is funking it.’

Is he right? If he’s wrong, I haven’t yet heard anyone in Government (or anyone else) denying what he has said. But if he’s right, it changes everything. Everyone has so far assumed that the Government has no option but to do what it has so far done in the Abu Qatada case: that is, try to get an assurance from the Jordanian government, not only that they won’t torture him (apparently the “court” accepts this) but also that it won’t, at his trial in Jordan, rely on the evidence of anyone else who may have been tortured. So we are now trying to get the Jordanian government to say they won’t do it. Then we will go back to this wretched body in Strasbourg, armed with this second piece of paper, and hope that the “court” will also accept that, and reverse its judgment saying we can’t deport this man. Was there ever such a nonsensical procedure? Apart from anything else, no government ever admits to torturing people: they just lie about it. But if Mellor is right, we don’t have to go through this absurd rigmarole. We can have him on a plane tonight and have him out of our hair for good.

Job done.

Or would it be? The supposed jurisdiction of this wretched body will continue to be a thundering nuisance. It will continue to interfere in our national life, as though “human rights” were unknown to British law. The fact is that our own courts and legal system (for good or ill) are absolutely under the sway of the Human Rights Act, which supersedes all other laws. So what on earth are we doing, on top of all that, accepting the jurisdiction of Strasbourg?

Interestingly, the idea that we should simply withdraw from the court is already gaining ground. The think tank Policy Exchange has just published a report, by the distinguished jurist Michael Pinto-Duschinsky, entitled “Bringing Rights Back Home: Making human rights compatible with parliamentary democracy in the UK”, which says that we should immediately enter into negotiations with the court “in order to find agreed ways to ensure that the judges at Strasbourg give greater discretion to the domestic judges of each member state”: in other words, get them to agree to stop interfering with our democracy and our courts. If not, says the report,

the UK should consider withdrawing from the jurisdiction of the European Court of Human Rights in Strasbourg and establishing the Supreme Court in London as the final appellate court for human rights law. In that case, the UK would continue to incorporate the European Convention on Human Rights into its domestic law.

Contrary to what has been stated by some opponents of such a reform, it is our conclusion that there is strong evidence to suggest that the UK’s membership of the European Union and of the Council of Europe does not require continued adherence to the judgments of the European Court of Human Rights should the UK opt for such a withdrawal.

It’s all very measured and (yawn) responsible. Me, I would just unilaterally and without further ado declare our legal independence of foreign judges who know nothing about our history, our culture or our legal system, and who are therefore simply not competent to determine what we do about anything at all. Or have I missed something? Meanwhile, nobody has contradicted David Mellor: could he just have genuinely spotted that this particular emperor has no clothes? If so, what next?

  • Charles Martel

    Nice one, Bill. 

  • BTyler

    If Abu Qatada has done something against the law then he should be arrested, charged and given a fair trial. If found guilty, he should be imprisoned or given the appropriate punishment. If found innocent, he should walk free. 
    It’s that simple, surely?

  • Anonymous

    If the British minister proposed acting against the law as laid down by the Human Rights court I have no doubt that the preacher’s advisers would seek a declaration in our courts that the government could not do so.  The government could put legislation through parliament to override the judgment of the Human rights court but we would then lay ourselves open to international sanctions.  But that is trivial compared to the gratuitous damage we would have done to the rule of law.  If we disregard the law then we can hardly expect other countries to obey the law.  Luckily we both come from a state where the rule of law is very important.  We would try and change the procedures by treaty rather than act unilaterally.  Ultimately the rule of law is based on respect.  No court anywhere enforces law against governments: they obey because that is the law.

  • South Saxon

    I believe that Abu Qatada is also wanted by the jurisdictions of France, Germany, Belgium, Italy and Spain. Why cannot he sent to one of those nations to face trial?

  • W Oddie

    Th whole point of my article is that according to Mellor, IT ISN’T THE LAW: The “court” has no legal authority over us. Do you really know any different?

  • W Oddie

    No, it isn’t, because there is evidence against him which cannot be disclosed in open court without endangering national security. That’s the reason generally given for not prosecuting him. Offences for which he might be prosecuted (to do with his preaching hatred against the rest of us) would attract only a short sentence, leaving him free thereafter to continue living freely on benefits paid for by us and  carrying on his  highly dangerous activities. Of course he CANNOT be allowed to “walk free”: how naif can you be? 

    Most people think, I think rightly, that we ought be able to deny him the right to continue living here. We have human rights, too.

  • Anonymous

    “Holds that the applicant’s deportation to Jordan would be in violation of Article 6 of the Convention on account of the real risk of the admission at the applicant’s retrial of evidence obtained by torture of third persons.” Article 46 ECHR binding force and execution of judgments.  Each …party agrees to be bound by judgments..  I don’t want to destroy your Faith in David Mellor since you claim to be a man of faith but the Rule of Law is for me fundamental as, thanks probably to our Christian past, it is to the government.

  • W Oddie

    “Each party agrees to be bound by judgements” but that means that judgements are only binding as long as each party agrees to be bound by them. so this doesn’t have the force of so-called international law (which is itself an entirely dubious concept) and certainly not of European law. We could at any time withdraw our agreement to be bound by these judgements. There would be no adverse consequences. we could,not be fined, or have  any other sanction directed against us: the Strasbourg court HAS NO SUCH POWERS. 

  • Anonymous

    I’d read the article before writing facetious comments.  Don’t you see that the Tory ultra right (wannabee republican tea party) are winding the government up.

  • Anonymous

    Why don’t you read the judgment of the Human Rights court and say where you believe its reasoning is faulty?

  • Anonymous

    I have also refrained from mentioning that decisions of the Human rights court are also binding by virtue of the Human Rights Act 1968.  It is quite short and I advocate your reading it.

  • Xerophasma

    The Human Rights Act 1998 enshrines in UK law the rights contained in the European Convention on Human Rights, and makes it unlawful for any public body to act in a way which is incompatible with the Convention. It requires UK judges to take account of decisions of the Strasbourg court, and to interpret legislation in a way which is compatible with the Convention. So decisions of the Strasbourg court are binding on the UK not only by the treaty we signed which set the court up, but by UK law as well.

  • Xerophasma

    98 not 68 :)

  • Anonymous

    Thanks, dyslexic vagaries a bit too frequent.  Must do better!

  • W Oddie

    Binding by our decision; that could be changed by changing British law. We should do that.

  • W Oddie

    As for the treaty, countries are free to withdraw from them so long as there are no adverse consequences to them: in this case, the reverse would be true. We now have a surplus of courts: we should shed the redundant one.

  • Anonymous

    “I would just unilaterally and without further ado declare our legal independence of foreign judges who know nothing about our history, our culture or our legal system, and who are therefore simply not competent to determine what we do about anything at all.”

    Would you support other countries doing the same? The ECHR spends vastly more time supporting human rights in Turkey and Russia than in the UK . Do you encourage Turkey and Russia to reject the court?

  • Xerophasma

    Well yes, we could change the law to make anything you can think of legal. We could make it legal to burn him at the stake. Whether we should change the law is a different question, but as things stand, we are under a legal obligation to obey the Strasbourg ruling

  • Mark Castilano

    Yes, Mr Mellor is a lawyer and barrister and he is most probably correct in what he asserts, but, what of judicial reciprocity inasmuch that if we (UK) need to apprehend a dangerous criminal (terrorist) who is planning to, or may he done harm in the UK like the 7/7 bombers, but is hiding safely within the European community. If the UK legal system renege on the treaty then it becomes null and void and other countries would no longer trust the integrity of the UK legal system. I like Mr Mellor, but he has a poor record for sound judgement. Remember, he was the one who told the press that they were drinking in “the last chance saloon” . Soon afterwards he was exposed as an adulterer, cheat and liar, that cost him his job, his marriage and his political career. If only he had kept his mouth shut (as he should be doing now) perhaps his opinion would be more credible. Abu Qatada has much to fear from his own people, because he has used the British and European judicial system (infidels) to protect himself and it has been muted in legal circles that he will answer in the fullness of time to radical Muslim terrorists. In effect he is no longer a threat to the UK and is a ‘has-been’. His preaching has amounted to nothing and he is a failure to the Muslim fundamentalist cause

  • Cjkeeffe

    AQ could easily be brought before a Jordanian Court consitituted somewhere within the United Kingdom and then tried under Jordanian Law here. The Jordanian’s have given assurence not to torture and the fiction on which the EC Court on HR found in his favour that there may be a sense odf something gained from a torture was not even a ground relied on by AQ or his legal team makes a mockery of that courts decision. In frespecgt to my idea we did it with the Lockerbie bomber having a Scottish Court of Sessions sit at the Haque.