It is theoretically possible to withdraw temporarily from the European convention on human rights particularly over matters involving terrorism.
But initial legal reaction suggests that there is only “a vanishingly small chance” that such a move could be used by Britain to resolve the political crisis over deporting Abu Qatada. The president of the supreme court has already warned that such a move is more likely to end up being declared unlawful under the UN convention against torture.
But the home secretary, Theresa May, said the government was “exploring all options” in the case “and that should include leaving the jurisdiction of the court altogether”.
Tony Blair explored a similar move in 2003, which had first been floated by Oliver Letwin in the immediate aftermath of 9/11.
Blair looked at the possibility of withdrawing from the convention, then immediately rejoining but with a reservation so that 11 international terror suspects, including Algerians, who were then considered to be threats to national security, could be deported.
Article 15 of the human rights convention allows a state to withdraw temporarily or derogate in legal terms from some of its rights in times of national emergency which threaten the life of the nation, to allow the use of measures that have to be “strictly required”.
Britain has used this temporary withdrawal power in the past, especially during the 1970s to allow internment without trial in Northern Ireland and other measures.
Blair found that such a course wouldn’t work in 2003 because the terror suspects he was seeking to send back to Algeria and Libya faced a real risk of ill-treatment or torture on their return. Article 15 of the convention expressly bans a temporarily withdrawal from article 3, which prohibits deporting people in this situation. As David Pannick QC pointed out at the time, such a move would be invalid and unlawful.
Instead the Blair government passed legislation introducing the Belmarsh regime of indefinite detention without trial to deal with the problem, which itself was subsequently ruled illegal by the British law lords.
Cameron may be relying on the fact that Abu Qatada does not face a risk of ill-treatment or torture on his return to Jordan but the real risk of an unfair trial based on evidence obtained by torture. This comes under article 6 rather than article 3 of the convention and temporary withdrawal is not expressly forbidden for this purpose.
The Strasbourg court ruling on Abu Qatada last year, which found he risks “a flagrant denial of justice” on his return, was the first time it had found that an expulsion would be a violation of article 6.
The prime minister may be calculating that such a move would resolve the political crisis caused by the government’s failure to kick Qatada out of Britain. But as the court of appeal said last month, it will come at a price.
The appeal court judges reminded ministers that “torture is universally abhorred as an evil” and it would not be enough to suspend the European convention’s protection for Abu Qatada.
As Britain’s most senior judge pointed out in March, it could also mean leaving the United Nations as such a move would be found to be unlawful under the UN convention against torture.
Human rights barrister, Adam Wagner, points out that temporarily withdrawing can only be done for public and not political emergencies. “This isn’t that situation,” he says.