One of the great mysteries of the Abu Qatada saga is why this country finds it so difficult to deport suspected foreign terrorists while France has no such problem. Here are two nations, both Western liberal democracies, both in the EU, both signatories to the European human rights convention and subject to the rulings of the European Court of Human Rights in Strasbourg. Both face threats from Islamist extremists; and yet their approach to dealing with them is dramatically different. Between 2001 and 2010, the UK deported nine alleged jihadis who were deemed to pose a threat to national security. Over the same period, France removed 129.
Why the contrast? Many of those packed off by France were sent to countries such as Algeria, Tunisia and Egypt, whose judicial systems are not widely thought to be paragons of compassion. Many of the deportees from France were Islamists whose only offence was to make disparaging remarks about the country rather than fanatics bent on fomenting violence.
Yet we are apparently unable to remove Abu Qatada, who arrived here under false pretences and was identified by MI5 as the most significant Islamic fundamentalist in Britain and an “inspiration” for terrorists both in this country and abroad. He chose his destination well when he came to Europe in 1993. Had he settled in Paris, he would certainly not still be there making a mockery of the French judicial system.
This disparity is the subject of a timely new book written by the counter-terrorism expert Frank Foley. He, too, had long been baffled by the varied approaches. And one thing that has become clear from his research is that the reason has little to do with the European court and much more to do with the different recent histories of the two countries and how their institutions have developed.
In the Commons last week, Theresa May became the fifth home secretary in succession forced to jump through a series of legal hoops to try to get rid of Abu Qatada. She announced that the UK had signed a treaty with Jordan aimed at persuading the Strasbourg court that if the imam were returned for trial the evidence against him would not have been extracted under torture. How that could be proven is anyone’s guess; but why do we have to go to such lengths at all? Is it to convince European judges or our own?
As Foley points out, in France “individuals only have limited means of preventing their deportation because of the relevant legal regulations and because of the swift expulsion practices of the French authorities”. Furthermore, an appeal does not suspend expulsion: the individual can still be deported to his home country and the appeal takes place in his absence. It is possible to petition the domestic courts to suspend a deportation but, says Foley, “the French authorities have pre-empted such legal moves by putting the individual on a plane home within just a few days of the order being issued”.
In Britain, by contrast, an appeal automatically halts a deportation; but that has nothing to do with Strasbourg and everything to do with the way we do things here. Since 1999, in the case of Algeria – whence most extremists come for historical reasons – “the French courts have not overturned any of the government’s deportation decisions on the basis that radical Islamists face a risk of torture or mistreatment if they are returned”.
However, in Abu Qatada’s case, neither have our courts. In fact, twice since 2001, British courts have upheld Home Office efforts to deport him. In 2007, the Special Immigration Appeals Commission said assurances from Jordan about his treatment were enough to override human rights obstacles. This was upheld in 2009 by the Law Lords, who also ruled that whether or not evidence against him might have been extracted under torture was irrelevant. It was not for the British courts “to regulate the conduct of trials in foreign countries”, and the use of such material would not amount to a “flagrant denial of justice’’.
If this country’s supreme court said he could be deported, why on earth is he still here? As soon as Qatada’s lawyers lodged an appeal, his removal was stayed; but in France, he would have been on a plane to Amman as an act of judicially endorsed political will: the European convention would not have come into it.
Here, the case went to Strasbourg, which found against the British government – and our courts have since gone along with that decision despite previously taking a completely different view.
The UK was slow to react to the jihadist threat in the Nineties (or, rather, we turned a blind eye to it). But there are aspects of the French approach to terrorism that we would not wish to adopt here (or at least I wouldn’t), such as the police making mass arrests or rounding up the usual suspects.
The judiciary in France are also much more tightly locked into the process through their investigating magistrates, who take over the case from the outset. Our tradition of free speech and civil liberties acts as a constraint on the more authoritarian instincts of the state. When it comes to removing from their territory suspected foreign jihadis who might do them harm, however, everyone in France sings from the same hymn sheet. We can’t even agree on the tune.
'Countering Terrorism in Britain and France’ by Frank Foley (CUP) is published tomorrow