It has been very clear for a long time that something has gone wrong with British justice. A succession of Home Secretaries have targeted, at different times, each of the central principles that underlie the national system of law: trial by jury, habeas corpus, free speech, as well as the abiding tenet that there should be a strict separation of powers between the judiciary and the executive.
This magnificent legal inheritance has been a guarantee of freedom and fairness in this country since the Middle Ages. But – as Tuesday’s wretched debate in Parliament about Abu Qatada demonstrates so nicely – this tradition is no longer of interest to the political class.
Abu Qatada certainly seems to be a thoroughly undesirable and nasty piece of work. Tapes of his sermons were discovered in a flat used by one of the Twin Towers bombers. He is accused of being the spiritual leader of al-Qaeda in Europe, and is sought in his native Jordan for an attempt to murder tourists. Not merely that – he is on record as justifying suicide-bombing and, it is said, preaching anti-Semitism.
On top of everything else, there is the fundamental, stinking hypocrisy of a man who appears to have a contempt for human rights making use of the best British lawyers to guarantee his own freedom to live with his large family on British benefits.
Most of the above is an offence under the British legal system, which regards incitement to murder and hate crimes as very serious offences. Indeed, if even a fraction of what is claimed is true, it would surely have been an easy matter to press charges against Qatada and have him sent to jail for a long period.
But this has not been the approach taken by the British Government. We have preferred not to press charges, instead holding him under the various forms of house arrest made possible by recent anti-terrorism legislation. More recently, we have attempted to deport Qatada to Jordan, but this strategy has rightly fallen foul of the European Court of Human Rights in Strasbourg – which refuses to countenance the idea that any individual should be deported to a country that practices torture.
Mysteriously, however, this decision has been condemned as an outrageous assault on British sovereignty, while the Strasbourg Court is under attack as an alien construction, hostile to British history, law, freedom and our national identity.
It is time that the case was heard for the defence. Certainly, it should be conceded that those who claim protection from the European Court are often suspicious or unattractive men and women, and many of them foreigners. Abu Qatada is a near perfect example of this kind of phenomenon. But the brutal truth is that obnoxious and unpopular figures are exactly those who most desperately need the protection of the law.
Consider this: there is nothing on this earth more British than the instinct to stand up for the underdog or the pariah, however unpopular or unattractive he or she might be. And there is no institution – not even the MCC or the Lawn Tennis Association – more British than the European Court of Human Rights.
It was inspired by Sir Winston Churchill, eager in the aftermath of the Second World War and the Holocaust to export the British system of fairness and decency. Churchill ensured that its founding document was drafted by a British politician, David Maxwell Fyfe, later to become a Conservative Lord Chancellor. Every single one of the great ideas that were to be embodied in the European Convention – freedom from torture, restraint on the power of the state, freedom under law – was an ancient British principle transferred on to the European stage.
It should be a matter of enormous national pride that an institution so profoundly British in its inspiration has refused to send an Arab fundamentalist (however despicable his crimes are alleged to be) to Jordan, where he might be tortured, or at best face the prospect of being sent to jail on the back of evidence acquired from a torture victim. Yet this decision has been greeted with horror by all three of our main political parties.
Tuesday’s Commons debate, in particular, was a day of shame for Parliament, once famed as the cockpit of freedom and justice. MPs combined to demand that Britain flout the European Court. Only one solitary backbencher, Labour’s David Winnick, asked the obvious question: if Abu Qatada is such a bad egg, why not press charges and secure a sentence in court?
It is more than 60 years since Churchill made his famous “Iron Curtain” speech in Fulton, Missouri, in which he defended the Western tradition of the rule of law. This is what he said: “We must never cease to proclaim in fearless tones the great principles of freedom and the rights of man which… through Magna Carta, the Bill of Rights, habeas corpus, trial by jury and the English common law, find their most famous expression in the American Declaration of Independence.” Churchill was clear, too – as he wrote to a constituent in 1938 – that “the use of instruments of torture can never be regarded by any decent person as synonymous with justice”.
In the immediate post-war era, with the memory of Nazi barbarism so clear, there would have been nothing even remotely controversial about such statements. They would have been accepted without demur by every right-thinking and decent person. Today, however, Churchill might be denounced as some eccentric, mad-eyed human rights fanatic if he repeated them. For over the past 15 years, the political elites of Britain and America have increasingly confined the right to a free trial to a minority of privileged citizens in their own countries.
Foreigners (and even some of their own citizens) have been subject to an improvised method of executive justice. Their rights have been denied and suppressed. Indeed, if only the MPs who sounded the alarm about Abu Qatada so stridently all this week had shown an ounce of the same outrage about Guantánamo or the victims of extraordinary rendition, they would deserve a certain amount of respect.
It was Tony Blair who first made the disreputable argument that “the rules of the game have changed” and that the threat from al-Qaeda was so severe and unprecedented that terrorist suspects should be deprived of the protections granted to ordinary citizens. But Mr Blair was wrong for two reasons. First, by abandoning the rule of law, we have turned our back on the exact values that have brought honour, worth and distinction to Western civilisation. Second, we are according men such as Abu Qatada a significance and mystique they do not remotely possess.
If he is guilty of the charges laid at his door, he is not, at bottom, guilty of terrorism. He is a common criminal, and should be treated as such. If this alleged hate preacher is such a menace, he should be brought to trial, asked to confront the evidence, and sent to jail. Anything less is a betrayal of everything that Britain stands for.
Cross-posted with thanks from Peter Oborne's Telegraph column
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