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Bruce Anderson

Bruce Anderson: Put Abu Qatada on a plane and send him to Jordan. If that provokes a political crisis, bring it on.

It was one of Mrs Thatcher's favourite phrases. When she started banging on about it yet again, her entourage would inwardly smile, and groan. They had heard it all before. But she was right, as so often. The phrase was "the rule of law" and no civilised society can function without it. The governance of law is a crucial milestone in mankind's route-march out of barbarism.

Law is often linked to order and then contrasted with rights. That is an error. In a civilised society, law is a guarantor of order, and therefore of rights. Apart from the right to life, no so-called human right is more important than the right to order and none of them - including the right to life - can be securely enjoyed in its absence. Law is crucial. This does not mean that it is simple. "Out of the crooked timber of humanity, nothing straight is ever made". All important human institutions give rise to complexity and controversy; law more than most. How should laws be made and enforced? What is the right relationship between law and politics? How can the rule of law be prevented from degenerating into the accomplice of tyranny - remembering that a democratic tyranny is one of the worst of all?

Given crooked humanity, there can be no final answer to those questions. But there is one impressive solution. Aided and abetted by a benign history which has permitted a more or less peaceful constitutional evolution, England has come up with a partial answer that has not only weathered the centuries. It has been imitated in other jurisdictions. Under the Common Law, judges can in effect make laws by reasoning from old principles to new circumstances. It was a judge who decided, a generation ago, that a husband was not entitled to insist on sex with his wife whenever he felt like  it. If she refused and he persisted, he could be prosecuted for rape.

That might sound like the American Supreme Court, but there is an essential difference. The Crown in Parliament is still sovereign. If Parliament disagrees with judge-made law, it can supersede it by passing a statute. The result is a sublime compromise. Judges are virtually impossible to sack. They are buttressed by the pomp and panoply of the law, as well as by their own self-confidence. Truly they are lions under the throne. But Parliament is still supreme. That unending dialectic between the the Courts of an independent judiciary and the High Court of Parliament has been one of the guarantors of English liberty and English stability. It is the foundation for freedom under the rule of law. It is now under threat, from those who have no interest in English freedoms. (Much of this argument is equally applicable to Scotland, but as the Scots have a separate legal system, I am concentrating on England.)

If you believe that the primary purpose of English laws is to protect English freedoms, there are two logical consequences. The most important is that the power to make those laws must reside in England. However much we may admire foreigners, they cannot be entrusted with the task of safeguarding our freedoms. That is for us, alone. The second is that foreigners resident in England will have a subordinate status. They should enjoy the full protection of our laws: anything less would be shameful, and a betrayal of us as well as of the foreigner. When an Indian student was recently murdered in Salford, there was indeed a widespread sense of shame. The dregs of humanity who were responsible had not only slain an admirable young man and broken his family's hearts. They had disgraced their country.

But there is still an essential difference. We are stuck with our own criminals, our own dregs. We should not be stuck with foreigners whose presence here is a threat to our well-being. The law-abiding foreigner should never appeal in vain for our law's protection; our self-respect demands no less. But the foreigner who is a threat to our law should have a single and sole entitlement: a one-way ticket to a foreign destination. Our self-preservation demands no less. Yet this week, we were told that we cannot deport Abu Qatada, an important member of Al Qaeda. Foreign judges have ordered us to abrogate the right to protect our freedom under the law and replace with the freedom to be blown up. Yet again, the European Court of Human Rights has expressed its disdain for this country.

To that, there are two possible responses. The first is acquiescence: the acceptance that Britain is no longer sovereign: that our Government is no longer able to protect us; that whatever their pretensions and their claims to status, however many demands that they make on the tax-payer, our ministers have to wait in the ante-rooms of a court in Strasbourg before they can tell us what the law is in England.

The second is a reassertion of national sovereignty and national pride. There is no need to wait: put Abu Qatada on a plane and send him to Jordan. If that provokes a political crisis, bring it on. Let those who oppose the Government's decision explain why they believe that the British people are unfit to govern themselves; why they believe that a legal system and a democracy which have endured and evolved over the centuries should now be treated with contempt.

To be fair to Nick Clegg and the other Euro-fanatics, they have given up the attempt to trash our currency. They still seem determined to trash our laws. It may be that the exigencies of coalition politics will constrain the Tory leadership. But we need a campaign to arouse public interest, and public anger: to ensure that the ECHR is an issue at the next election and that a majority Tory government will deal with the threat. There is a court in Strasbourg, as opposed to a gauleiter in Strasbourg, because we British defended other people's freedoms as well as our own. It is an insult that liberators are now treated as serfs. It is time to stop appeasing insolence and to throw off serfdom.


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