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Too Much Heat And Not Enough Light

Jerry Hayes thinks we must accept the Abu Qatada decision, if we are to uphold the rule of law.

By Jerry Hayes

9 Feb 2012, 12:00

Can you imagine what would happen if a thirty year old white, middle class lawyer and father of two had been imprisoned without trial for six and a half years without a single charge being preferred against him in a court of law? The Mail would be outraged, the SUN apoplectic and even Ed Miliband might even knock the ball into the back of the neck by accusing, “this Tory led coalition being nothing more than a police state worthy of Assad or Mugabe.”

“Ah”, a spokesman would say, “but the lawyer is a terrorist, he is a threat to our security and to the lives of thousands of decent people.”  The question would be asked, “well, if this is the case why not put him on trial so the evidence can be tested against him and if he is as wicked as you say he will be imprisoned and the key thrown away.”  “Ah” the spokesman would say, “sadly this is not possible as the evidence compromises our security services and couldn’t possibly be brought to court.”  So what do we do with him? Intern him indefinitely without trial? Or pass him on to his country of origin? Great, let’s do it and pass the problem onto someone else. But hang on, the lawyer comes from a country with the death, penalty and uses torture to extract evidence, so we can’t.

As we all know that the real life problem is a deeply unpleasant man called Abu Qatada, who if the security services are to be believed (and I can’t see any reason why they shouldn’t)  is the sort of terrorist who would quite happily wipe out swathes of innocent women and children to serve his own twisted ends. The trouble is we are relying on their word for it. Which poses some pretty obvious questions for those of us who believe in the rule of law.

If people could only sit down quietly and think sensibly about this omitting the words European Court of Rights at Strasbourg, we might reach more interesting conclusions. Firstly, we signed a perfectly sensible treaty undertaking not to extradite people to countries where they are likely to be executed or tortured. It wasn’t a bunch of foreign judges who flew in the face of common sense and put two fingers up to our judges at all. And it was a British judge who did his job, namely apply British law passed by a British Parliament. Ken Clarke was quite right in his analysis this morning.

There is a lot wrong with the composition and competence of the European Court of Human Rights and there needs to be serious reform of it. But the Abu Qatada case is the wrong stick to beat them with. There is worrying talk amongst normally sensible MPs of ignoring the law and deporting him anyway. To do that would be to ignore a law passed by Parliament and correctly applied by a High Court Judge. It would lead to a constitutional crisis. The reason the government hasn’t appealed is because it knows it can’t possibly win.

The trouble when you live in a democracy, uphold the rule of law and have an independent judiciary, tough decisions have to be made. The toughest of all being that everyone has to be equal before the law no matter how wicked they might be. If we don’t do this we become no better than the very dictatorships we seek to undermine and topple. But it’s tough for elected politicians when the mob is in full rant and pitchforks are being sharpened. They just have to rise above it all. In this case the only option available is to cobble together some deal with Jordon to show that they’ll do their very best not to kill or torture him. I suspect Cameron will be successful on this one, but it will not be the last.