When Tony Blair rails against the actions of our judges in the treatment of terrorist suspects, he betrays only ignorance and political expediency.
In the aftermath of the 7 July attacks on London there is little doubt that the Prime Minister has, not for the first time, generally articulated the national mood. Whilst agreeing with his view that firm border controls should be restored in the UK, we need to understand a little more about how the government got into this position.
One fashionable theory – traditionally a view which has found favour amongst many right-wing commentators – is that the sovereignty and good sense of parliament is being undone by politically motivated judges. And here, even I have to make a small confession. There has been many a time in the past decade or two that I have watched with frustration and annoyance as administrative law and the doctrine of judicial review have developed at great speed. Surely the wishes of a democratically accountable parliament should always hold sway?
Naturally amidst Mr Blair’s grandstanding, he gives little indication that he intends more power will find its way into the hands of parliament. What he wants are individual rights being more tightly controlled by the Executive.
Like Mr Blair I am an Oxford law graduate who had a short (in fact even briefer than the Prime Minister’s) career in legal practice. If only the two of us had had spells as journalists before commencing our parliamentary careers we would then have been associated with each of the three most unpopular occupations!
My biggest concern about the Prime Minister’s passionate desire to roll back the human rights agenda is that in his broadside against the judiciary he exposes how little he understands about the finely balanced British constitution of which he is the single most important guardian.
For at the heart of the problem we now face is the Labour government’s embrace of human rights legislation since 1997. This country should never have introduced the Human Rights Act, which incorporates into English law the European Convention on Human Rights. I do not say this out of some wide eyed Euro-scepticism, but because our endorsement of the European Convention flies in the face of the very essence of our legal system. I accept that it is arguable whether or not the protections set out in both the European Convention and the Human Rights Act should be incorporated into English law. However, it is the manner of their inclusion that has almost inevitably led to the difficulties that the government is now desperately trying to untangle.
The Prime Minister now says that he is prepared for “a lot of battles with the courts”, which have repeatedly intervened to prevent the Home Secretary from deporting foreigners regarded as a threat to our national security. If the Prime Minister is to be taken at his word he has committed the government to amend both elements of human rights legislation in order to bring into force his sweeping package of anti-terrorist laws. The twelve point package he announced last week includes proposals for deporting Islamic extremists, closing Mosques that have fomented hatred, outlawing radical Muslim groups and vetting foreign Imams before they come to Britain.
Understandably Mr Blair needs to reassure the public that since July’s London bombings those religious fanatics and extremists who are abusing our traditional values of tolerance and fair play should no longer be given free rein of the benefits of British democracy. Indeed at the heart of the security measures he has announced is the determination by our elected government to regain the initiative. You see we have given up our ability in the name of “promoting human rights” to deport those foreigners who pose a threat to national security. Remember too that many of the worst potential terrorists are, in fact, British Citizens, born and bred. They cannot be deported, because they have nowhere else to go.
But it is now clear that the European Convention on Human Rights has made it virtually impossible to deport even foreign militants. This has obliged the Law Lords to strike down any subsequent anti-terrorism it considers incompatible with the European Convention. This should have been foreseen and it exposes how ill thought through were the Labour government proposals. Added to this has been the way we have given asylum to political agitators from abroad, without distinguishing between liberal opponents of oppressive regimes and extremist opponents of more moderate states. This has been a disastrous policy over several decades and has allowed political activists from abroad into this country, whose only goal has been to scheme against sovereign states.
When in opposition Labour was keen to make friends with the civil liberties lobby. As usual, however, Mr Blair had not thought through how his government might deliver on these promises.
The fact is that Britain (or perhaps I should more accurately say England, Wales and Northern Ireland – Scotland, of course, has a separate legal system) has an entirely different historical background to its law making. Continental Europe has a codified system strongly influenced by Roman law but entirely re-written in France and Germany over the past two centuries or so. By contrast the legal culture in this country is based on common law. Our culture is far more open to judicial interpretation. This lies at the heart of our law making.
Our legal tradition supports continuity, self reliance, individual responsibility and autonomy from a centralised authority.
Our judges are invariably chosen from the ranks of barristers with longstanding experience in practice. By contrast most continental judges have been trained from the outset as adjudicators. Accordingly they regard themselves as part of the government administrative system from the time they left university. Judges in this country are proud of their independence from the Government, the Executive and Parliament.
Mr Blair’s half baked proposals to abolish the Lord Chancellor and set up a Supreme Court (made only two years ago), yet alone his ill-tempered attack on judges, threaten this finely-tuned independence. I am not criticising the European system, simply pointing out its essential difference – judges there are part of the political administration, which reflects the way they carry out their duties. In this country legal verdicts are informed by the merits of the case, rather than by a strict interpretation of the wording of the law. As a result judges do not only implement the law, but also contribute to the making of it. It is an entirely different culture that goes back many centuries and is one of the reasons that the continued independence of our judiciary is of such crucial importance.
The object of British justice is to ensure “fair play”. Our system is geared towards ensuring a fair trial. The European system seeks the establishment of the truth. This process involves the appointment of an investigator independent of the police, and can often be more time consuming than is customary over here. As a consequence there is often disbelieving media coverage of many high profile legal investigations involving British citizens who brush with the law on mainland Europe.
This fact alone should have given rise to ringing of alarm bells when a spin-obsessed Labour government insisted on opting in to the European Convention of Human Rights. What has followed should have been foreseen.
The single most important protection of individual rights in this country is an independent judiciary. These rights need most fervent protection in times of national crisis when there is an understandable temptation to “crack down” by the government of the day. Equally the importance of national security cannot be underestimated. The United Kingdom must withdraw from the European Convention of Human Rights and repeal the Human Rights Act at the earliest opportunity.