14:17, July 26 62 0 theguardian.com

2018-07-26 14:17:04
Did the UK government do a dirty deal with Trump over the Isis suspects?

Under immense legal and political pressure the government caved in and is beating a tactical retreat on its decision to help the US convict and potentially execute two Islamic State terrorism suspects, Alexanda Kotey and El Shafee Elsheikh.

Earlier this week, Sajid Javid’s decision to help the US became public. And now the government’s legal department has given lawyer Gareth Peirce a formal undertaking that the Home Office and other government agencies will not provide the US attorney general or any US official with any “further” evidence about the case. This is to allow a judicial review of the decision to be fully argued in the high court. The new undertaking was provided only under the threat of an application for an injunction.

Javid’s original decision is the clearest possible breach of the European convention on human rights. But it is also in breach of British domestic law. The present government rightly shelved its tentative plans to amend or repeal the Human Rights Act 1998. They have also, in the Brexit negotiations, guaranteed the EU that they will not be making any changes to the UK’s obligations under the convention. The Human Rights Act is a statute of the British parliament reflecting the consensus of the elected representatives of the British people. The home secretary’s decision in this case is subject to a general provision of that statute that makes it unlawful for a minister to take a decision that is incompatible with the convention rights.

But the problem with Javid’s decision here runs into much deeper waters because it has touched on the very roots of British constitutional law. The United Kingdom’s opposition to the death penalty has, over many years, hardened into a constitutional principle. Remarkably, the home secretary seems to be ignorant of the fact that ministers are subject to the law. Only parliament or the judges can change the law. It is not open to a minister to do away with a constitutional principle at his or her discretion, by means of a secret decision, reflected in a private letter to a foreign government, without any particularised reasoning, and that has not been the subject of consideration or approval in parliament or the courts.

The Howard League for Penal Reform, the oldest penal reform charity in the UK, has already announced that it intends to bring a legal challenge. And a consortium of leading human rights organisations is expected to back this move. The conscience of the nation is stirring.

On Thursday it came to light that the mother of El Shafee Elsheikh has launched an emergency legal challenge seeking to quash the home secretary’s decision.

Perhaps the most troubling aspect of this case is the haunting possibility that this arrangement reflected a prior agreement with the Trump administration by which British officials would actively pave the way for these two men to be put in jeopardy of execution. On the face of it, the cumulative effect of the decisions taken by the home secretary and other British government officials in this case suggests that some sort of gruesome deal may have been done, reminiscent of the secret and private deal between Blair and Bush that was the focus of the Chilcot inquiry. That would have very sinister implications with grave political ramifications for the government.

It is essential that the prime minister should now intervene personally to clarify this issue. Many informed observers are starting to ask why on earth these two men are not being brought to London to be tried at the Old Bailey, like so many others who travelled from the UK to fight for Isis in Syria. Why should the government, which has a fixed policy of prosecuting these alleged foreign terrorist fighters in the UK courts, have suddenly decided to step aside and allow these two particular suspects to be handed to the Americans for trial? If they are prepared to devote huge resources to trying every returning jihadist foot soldier in crown courts in this country – as has happened in scores of cases – why the sudden reluctance in this case, which is so emblematic of the most brutal of the crimes allegedly committed by Isis?

Could it possibly be that a deliberate decision was taken here by the British government to collaborate with the Trump administration to “execute the executioners”? If so, that would be grossly unlawful, a bad faith exercise of public power, and contrary to the most basic tenets of democratic government.

The UK is the natural and obvious place for these two men to be put on trial. When the decision not to seek their return for trial in the UK is set alongside the decision not to seek a death penalty assurance, a disturbing picture starts to emerge. Taken together with the proposal that they should be handed to the US for trial on death-penalty charges, the actions of the British government suggest a dirty deal – a private pact deliberately made between the two administrations to ensure that the two accused men face the death penalty in the US – precisely because parliament has banned the death penalty in England. A dirty deal to get round the clearly expressed will of parliament, in other words.

If that, apparently obvious, inference is not true, then the prime minister needs to come out and say so. At the same time, she must explain with complete transparency how this constitutional abomination has been allowed to occur. It is quite clear from this disaster that the home secretary is not up to the job of running one of the great departments of state. But if the prime minister was also involved in this decision, then it raises questions about whether she is willing to take decisions on grounds of political expediency and ghastly iconoclasm that are unlawful, unconstitutional and contrary to the clearly expressed will of parliament.

The crimes that these two men stand accused of are almost medieval in their savagery. But that is precisely why they deserve the highest standards of due process. There is no moral equivalence in “executing the executioners”. Conniving in this revolting spectacle merely puts us on a par with those who are flouting our values.

Britain has a proud commitment to constitutional democracy. The home secretary seems intent on sacrificing our principles on the pretext of defending them. He is dispensable, of course, and the prime minister should immediately dispense with him over this terrible fiasco. But she also needs to establish an immediate public inquiry into how this happened, and who is implicated in the chain of unlawful decision-making.

Ben Emmerson is a lawyer specialising in European human rights law, public international law and international criminal law.

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