Could the UK leave human rights treaty over Qatada?

Downing Street on Wednesday confirmed Theresa May’s comments in the Commons that the government was “exploring every option” to deport the Islamic cleric – including leaving the pivotal human rights convention, the ECHR.

The announcement follows yet another court rejection of the home secretary’s attempt to deport radical preacher Abu Qatada on Tuesday.

Article 6 of the ECHR, which prevents trial by evidence obtained under torture, is the stumbling block that has proved the thorn in the side of the government. In Qatada’s case, appeal courts have consistently found that evidence obtained through torture may be used again him in a trial in Jordan.

You can’t pick and choose which cases to abide by. It’s a bit like saying; ‘I temporarily withdraw from this marriage to have an affair’. Barrister Adam Wagner

The home secretary also announced on Wednesday that the UK had agreed a new treaty with Qatada’s home country of Jordan, which she hopes will guarantee him a free trial and convince courts to allow his deportation.

The two-pronged approach shows the government determination to win political points and see the back of Qatada.

‘Extremely unlikely’

But a temporary withdrawal from the ECHR under the terms of the convention would be “extremely unlikely”, said Professor Francesca Klug OBE of the LSE’s centre for the study of human rights.

Adam Wagner, barrister at One Crown Office Row agrees. “Unsurprisingly, a convention of fundamental rights that is enforceable against states doesn’t give them a way of bypassing their obligations through legal loopholes,” he told Channel 4 News. “How could that have been the intention of the people who drafted the rights convention?

“It’s so unlikely to work, and also so unlikely that the government will attempt it.”

The convention has huge symbolic, as well as legal, status. Dating back to 1953, it was drafted in the aftermath of the world war II by the Council of Europe, of which Britain was a founding member.

The idea of a temporary withdrawal was first broached by Tony Blair back in 2003. And the legal advice from Lord Pannick QC at the time was clear that states are not allowed to do so under the terms of the human rights treaty.

In a report commissioned by Liberty, he concluded: “it is strongly arguable that the ECHR does not permit a contracting state to use the power of denunciation of the convention (that is, withdrawal) as a device to secure a reservation which could not otherwise validly be made”.

And experts say the advice ten years ago is unlikely to change.

Mr Wagner adds: “You can’t pick and choose which cases to abide by. It’s a bit like saying; ‘I temporarily withdraw from this marriage to have an affair’,”.

Previous attempts to temporarily leave the ECHR have also proved unsuccessful. After the 9/11 attacks for example, the UK wanted to be able to detain foreign national terror suspects and applied for a temporary ECHR withdrawal to do so, but the application was found invalid by the House of Lords.

May has now put ECHR withdrawal option back on the table. Surprised the table is still standing.

— Dan Hodges (@DPJHodges) April 24, 2013

I dunno, but sounds awfully like No 10 wants to be able to tablethump about withdrawing from ECHR & Home Office somewhat less keen.

— Gaby Hinsliff (@gabyhinsliff) April 24, 2013

Political points

Politically, it also looks unlikely. The Liberal Democrats have said they will not consider any withdrawal from the ECHR, so at the very least, the government would have to hope for an election win in 2015.

Even within the Conservative party, there appears to be a disagreement. Former Justice Minister Ken Clarke said that even if the government did pull out, it would not solve the legal issues surrounding Qatada’s deportation.

“You’re not going to get a British court to deport anybody for trial to a country where torture is going to be involved, you never have, you never will,” he told the BBC. “If you got rid the convention they’d start invoking the ordinary principles of common law.”