The latest episode in the saga that is the case of Othman (Abu Qatada) v the Secretary of State for the Home Department occurred today when the Court of Appeal refused the Home Secretary leave to appeal against the Court of Appeal’s earlier judgment to the Supreme Court.
The facts of this case are well rehearsed so I feel that I don’t need to go over them again. As one would have expected, the Court of Appeal’s refusal to grant leave to appeal caused an uproar on the internet (and this was probably no doubt replicated in homes, pubs and offices around the country). Let me be clear, I am no fan of Abu Qatada. He is alleged to have committed some very serious crimes and it is right and proper than he faces trial in Jordan for those crimes. However, it is equally right and proper that the United Kingdom upholds the law of the land, international law and its other international responsibilities.
Predictably, a lot of the comments were directed towards the judiciary and their apparent failings. However, I would suggest that this is the wrong place to direct criticism towards. The law is clear and it is for the judges to apply the law and to uphold the law. Judges are not there to make or to change the law; that power lies with the Government and Parliament. If courts are consistently finding against the Government on the same point of law, it would suggest that any problem that exists does so either with the law or the legal position of the Government. In both scenarios only the Government, not the judiciary, can change the situation.
The Court is there to apply the law as enacted by Parliament and to uphold the rule of law. They don’t take sides in any legal debate; they are not on the public’s side, the Government’s side or the side of any other party. They are an independent tribunal charged with applying the law to a particular set of facts and to determine who, in law, is right and who is not. The Appeal Courts are there solely to interpret the law which is then to be applied to the facts of each case by the lower courts. They’re not there to look at whether a Court or tribunal below was right to conclude that a particular fact is indeed a fact or whether it is not; they are there simply to ensure that the lower courts and tribunals are applying the law correctly and to resolve any ambiguities in the law.
The Supreme Court only considers what are termed ‘points of law of general public importance’; those are legal questions and conundrums that affect a wide number of people in society. They will look at serious legal questions and determine the law so that it is clear for all in our society and so that the lower courts are applying it consistently to all.
The Government is, like each one of us, subject to the law. It does have a slightly more empowered position than the ordinary citizen has, in that should it lose a case in court it can (with the consent of Parliament) pass legislation to reverse the decision. In this increasingly global world though, the Government (and Parliament) is somewhat restrained in what changes to the law it can make. The United Kingdom has signed up to various international treaties, including many human rights ones (although we only ever really hear about the European Convention on Human Rights it’s not the only one we are signatory to) and then there are other principles of international law that the United Kingdom has to comply with as well (see my post on the ECHR, Abu Qatada and international law).
It is quite right that the Government is subject to the law in the same way that ordinary citizens are subject to the law. If it were not, the Government would be extremely powerful with no real check or balance on its power and it would be impossible to effectively hold the Government to account. There are countries where the Government is outside of the law (either constitutionally or because of the political situation is effectively outside of the law because the judiciary turn a blind eye). When you look to those countries you soon realise that such a situation is not one which you want in this country.
Abu Qatada (and people like him) wants to destroy democracy and bring tyranny to the ‘West’; the Rule of law is fundamental to democracy. If we suspend the Rule of law and start to allow the Government to ignore the law and judges to turn a blind eye to the Government ignoring the law the terrorists have effectively won. Is that what you really want?