From Notting Hill Editions
Abu Qatada smuggled himself on a false passport into this country in 1994. Instead of working to provide a roof and bread for his dependent family, he has devoted himself full time to teaching and preaching a version of the Muslim religion that is contrary to the most elementary and fundamental guidelines of our society. He would like a society founded on a strict religious dictum of the very few - where people could not say or do what they liked and the idea of equality played no part in the proceedings. A tiny proportion of our laws is concerned with a limitation of the principle of free speech. We can say what we like, wherever and whenever we like to say it.
The active propagation of his ideas - with an incitement to the violence required for effecting such a transformation of our society - led inevitably to Abu Qatada spending a great deal of time in our jails. After many long years, the somewhat futile legal encounters reached a final and fairly obvious conclusion. The ultimate decision of the highest court we have has been the natural repatriation of our guest to Jordan, the country of his origin.
What came as a horrible surprise was the intervention of a European Court of Justice, forbidding the repatriation of our dangerous guest to his own country. He may commit the most repulsive and deadly of crimes, he may constitute a living danger to the wellbeing of our community, and we in turn may prosecute and punish him as severely as our law allows. But what we cannot do, according to the relevant European Court, is to send an individual back unless the court is satisfied that he would be treated at home with the same justice and civility as we are practiced to expect here.
Qatada's home is apparently surrounded and watched by policemen. Such surveillance, with so many officials and with such sophisticated means, has not been available to any single individual in this country thus far. Conservative estimates of the cost involved are running at about one million pounds a year. We do not know, of course, how long this situation will last. Theresa May, our Home Secretary, has just been to Jordan in the hope of extracting a promise safeguarding the terms of Abu Qatada's treatment before and during his trial. Theresa May may succeed. Abu Qatada may well escape the retribution of countries that find it difficult enough to manage their affairs even in the absence of any violence. None of this matters. The sole purpose of this essay is to help set the boundaries of the nation state and estimate more accurately her independence.
Britain evolved slowly over the last eight hundred years to become the state that it is today, this evolution is characterised by at least one overwhelming feature. No foreign power ever governed us. This is such a fundamental fact that only foreigners can really be aware of what this means. The people of the Baltic States or the Balkans or those countries occupied by the Germans as recently as the Second World War, can never be unaware of the reality of independence.
The founding members of the EU - France, Germany, Italy and Holland - traded in their independence with a full realisation of what this meant. Facing the Second World War and its consequences has been the primary impulse behind the European project. Giving up a huge chunk of their independence and gaining other, and different, advantages has been at the root of the communal agenda.
All this may seem tantamount to theory, not so relevant in practice to the immediate case of Abu Qatada. In fact, on the contrary, the present situation highlights one of the most important elements in the future of the European project. We simply cannot accept to be subject to laws conceived abroad, judged and interpreted abroad, and settled by people who have never imbibed the inherent independence of our way of life.
What crucially differs here from our continental counterpart is the close, and always practical, relationship between those who make and practise the law and the general public who have the misfortune of coming into periodic contact with this legal world. Most of our civil law was inspired in city chambers around the Middle Temple. None of them was allowed to forget for an instance the intimate relationship between the law and its victims, between the law and her practioners or, most importantly, between the law and ever-present circumstance of actual life. And here lies one of the most important distinctions between the continent of Europe and Britain.
Over the last forty years, ever since we became members of the European Union, our legal competence, developed painfully over many centuries, has suffered a significant erosion. This process was so gradual, so subtle, so encumbered in the details of every augmentation of the underlying treaties that we have learnt to accept the most far-reaching changes in the fundamentals of our statehood almost without any resistance. At no point through this profoundly imperceptible regress could we ever have contemplated the present impasse. What is urgently needed now is to understand and digest the essential divide in Europe between the culture encapsulated within the traditions of Roman Law, as against a culture embodied in the Common Law.
The vast majority of the inhabitants of the European land mass inherited, developed and practised legal systems manufactured in major seats of learning. The universities of Bologna , Delft and Amsterdam, among a very few other distinguished centres, created legal realities characterised by two major factors. Everything had to be resolved in writing, and the underlying principles had to be derived from, or related to, surviving bits and pieces of what had functioned very well about a thousand years before.
In complete contrast, the English Common Law evolved gradually in line with the actual daily life of the local population. As such, and significantly, the practice of this law depended less on ancient, embodied texts and much more on the spoken word, uttered always in an open court. Even more significantly, this law was not honed in distinguished seats of learning but followed one precedent after another; the judgement of judges was not schooled in remote academia, but grounded in the daily life of the community they served.
The most profound difference of the working law here from its continental counterpart is not simply an unfortunate historical accident. This divergence provides a crucial key to the understanding of our dubious adherence to the whole European project. The sanctity of the written word against what we hear first-hand or see with our own eyes, just about sums up one of the most questionable assumptions of the EU.
The British social and political structure has always rested, in the final analysis, on the man in the street. The continental equivalent, almost everywhere, has been left in the hands of highly trained specialists. The law, and all that goes with it, has been entrusted to the upper section of chosen centres of learning. Juries of equals, evidence given verbally by living and actual witnesses, a judge to control the form and not the content of a case, are still considered on the continent as a peculiar British eccentricity.
Returning to Abu Qatada after these remarks, the matter is quite simple. After some forty years of somnolence, we have just woken up. No one can possibly fail to see what can happen if we give up our absolute right to do what is in our power to defend the particulars of our imperfect democracy. It seems to me that giving up our enshrined right to deliver people like Qatada to his own natural home is tantamount to giving up the most precious portion of our independence: the absolute right to defend our country.
by Tom Kremer