Allan Massie: Rule of law is not a bendy tool for political use

IT MAY be irritating that a man accused of inciting terrorism can’t be deported but is it worth suspending the cornerstone of a just society to get rid of him, asks Allan Massie

Most of us would probably be quite happy to see the extremist Muslim cleric Abu Qatada deported to Jordan where he is wanted to stand trial on terrorist charges. For the moment, however, we can’t deport him because the European Court of Human Rights has said “no”.

This irritates a lot of people, among them the Prime Minister. This is understandable. Nevertheless the court’s position is correct. Though the Jordanian government has promised that Abu Qatada will not be tortured, a promise that removes one of the court’s objections to his deportation, it has not yet established to the satisfaction of the court that witnesses called to give evidence against him will not themselves have been subjected to torture. If Jordan gives assurance that this will not be the case, the court will withdraw its objection, and Abu Qatada will be on the plane to Amman.

We should be clear about torture. It is unlawful and evidence obtained as a result of torture is unreliable. Torture was always illegal according to the common law here. In England the common law was bypassed by use of the prerogative courts in the time of the Tudor and early Stuart monarchies.

These courts were offshoots of the Royal Council, and they regularly employed torture against political and religious dissidents. The chief victims were Roman Catholics, and especially Roman Catholic priests, in the reign of Elizabeth.

The justification was “reason of state”; Catholics were regarded as subversives and agents of a foreign power. When James VI & I was on the throne, Guy Fawkes was tortured on the rack to try to get him to reveal the names of co-conspirators. These prerogative courts were unpopular, and one of the first Acts of the Parliament that Charles I reluctantly summoned in 1640 was to abolish them. They did not return when the monarchy was restored in 1660, and torture was henceforth outlawed in England. It continued to be employed by the Scottish Privy Council against covenanting rebels until the revolution of 1688 ended the practice here too. It should be a matter of pride that for more than three centuries nobody has been lawfully tortured in this country.

The European Court of Human Rights was established by the Council of Europe, a body that has no connection with the European Union, after the 1939-45 war to administer the European Convention on Human Rights. The convention was itself the work chiefly of British lawyers, the most prominent being David Maxwell Fyfe, a Scotsman. Maxwell Fyfe was no “bleeding heart Liberal”; indeed in the 1951 Churchill government he was a decidedly illiberal home secretary. But he did believe in the rule of law and one of the clauses of the convention declares torture to be unlawful. Consequently, evidence obtained by its use is inadmissible in court.

There has been slippage in recent years, partly because of disagreement as to what constitutes torture and partly because, after 9/11, the Labour government collaborated with the American government in the practice euphemistically termed “extraordinary rendition” – that is, transporting terrorist suspects to countries where torture is employed. The justification was the same as in Elizabethan times: reason of state. The war on terror was held to justify actions that were illegal and immoral. The authorities, recognising this, were sufficiently ashamed of what they were doing, to act secretly.

Which brings one back to Abu Qatada. He was arrested in 2005 and has been held in prison here ever since, except for a six-month period when he was released on bail, and he has again been released on extremely strict bail conditions this week. He is regarded as a dangerous man, a threat to security, and he may indeed be so. But he has never been charged with a crime here, never put on trial. He and his family have lived at the expense of the British taxpayer, even though he was an illegal immigrant. But, as I say, no charge has been brought against him. He has been held in prison for years on suspicion, in defiance of the (English) Habeas Corpus Act of 1678, which outlawed imprisonment with out trial.

Of course in times of national emergency that Act has been suspended. In both the world wars of the twentieth century people were interned without trial under a provision of the Defence of the Realm Act. It was enough to be thought an enemy sympathiser or a threat to national security. Many who were interned or imprisoned were indeed just that, and it may be held that Abu Qatada is no different. Nevertheless we are not at war, and terrorist acts such as the London Tube bombings have properly been treated as crimes with the accused charged with murder or conspiracy to murder. Abu Qatada may be held responsible for incitement to commit such acts, but he has not, as I say, been charged with anything.

If we can be proud that our ancestors centuries ago outlawed torture and imprisonment without trial, insisting that people accused of criminal acts be tried in open court, there is nothing to be proud of, and much to deplore, in the readiness of our authorities to bend or ignore the law when it seems expedient to do so. I have no doubt that Abu Qatada is a nasty piece of work, and I hope that he will be lawfully deported to Jordan to stand trial before a court that refuses to admit evidence obtained by torture. But even nasty bits-of-work have legal rights, and a parliamentary democracy that ignores such rights demeans itself.

The British-inspired European Convention on Human Rights was drawn up in response to the illegalities and contempt for human rights that characterised the Nazi regime and other European dictatorships. It is not something to be ignored merely because it seems convenient to do so. When one hears members of Parliament demanding that Abu Qatada be deported to Jordan in defiance of a court ruling, one despairs not of the Court of Human Rights but of our own legislators. If they show contempt for law and due legal process, why should they look for respect from us?