A democracy without a written constitution is always in peril from political law. Three current controversies underline the extent to which England today faces just such peril: the attempt to deport radical Islamist Jordanian cleric Abu Qatada; the Leveson inquiry into press standards and ethics; and the February arrest and jailing of a woman for a ‘racist rant’ on a London Underground train – the second such action in a month. What all three issues highlight is a simple, sad truth: precedent in English common law has not only become outdated but is in danger of destroying liberty itself. England therefore needs a written constitution akin to that of the United States and in particular a First Amendment.
The First Amendment of the Constitution of the United States is short and to the point: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
My hero, American journalist Edward R. Murrow, in a famous CBS television editorial once said of Senator Joseph McCarthy and his anti-communist witch-hunt that, “the line between investigating and persecuting is a very fine one and the junior Senator from Wisconsin has stepped over it repeatedly. His primary achievement has been in confusing the public mind as between the internal and the external threats of communism. We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law.”
Let me set all three controversies against the context of Murrow’s warning.
First, Abu Qatada is clearly the “very dangerous man” an English judge once cited him to be. And, whilst the European Court of Human Rights is becoming itself ever more politicized and thus falling into disrepute, its refusal to permit Britain to deport him to his native Jordan reflects a simple truth: Qatada has never actually faced English justice. He has thus been denied due process, which is the very essence of a civilized state.
Second, there is no question that sections of the English press have behaved in an outrageous and egregious manner. However, any attempt by the state to restrict press freedom in the name of press ‘ethics’ is dangerous in the extreme. Respected journalist Trevor Cavanagh, writing yesterday of the arrest of ten of his colleagues at The Sun newspaper, said “in a quite extraordinary assumption of power, police are able to impose conditions not unlike those applied to suspected terrorists. Under the draconian terms of police bail, many journalists are barred from speaking to each other. They are treated like threats to national security. And there is no end in sight to their ordeal. Their alleged crimes? To act as journalists have acted on all newspapers through the ages, unearthing stories that shape our lives, often obstructed by those who prefer to operate behind closed doors.”
Third, no one can doubt that racism exists in England but the application of a disreputable law is fast becoming dangerous. In 2008, egged on by pressure groups representing ethnic minorities, an unelected leftish Labour Government passed draconian race hate laws. Now, I hate racism and all forms of discrimination, not least because it impacts my daily life. However, this odious law is not only threatening freedom of speech, it has for the first time in English jurisprudence created a situation in which there is a presumption of guilt until proven innocent.
In July former England football captain John Terry will face criminal trial for having allegedly racially abused fellow footballer Anton Ferdinand. There is little chance Terry will face a fair trial. Indeed, he has already been stripped of the England captaincy. Today, careers and lives are being broken not on the fact of any crime committed but merely on the suspicion of having broken an odious law.
There was a time when English law could distinguish between the criminal and the stupid. That time is long gone. All it needs today is a stupid Twitter or someone with a fancy mobile phone and what was once deemed stupidity is now deemed criminal. Sadly, the movement which started out as a laudable effort to challenge racism and discrimination is fast becoming the new McCarthyism – the destruction of freedom and justice in the name of freedom and justice.
A week or so ago I had breakfast with one of the most respected and outspoken of Labour Party politicians and put my argument to him. He not only agreed with me but explained why England is in such peril. “Sadly”, he said, “my colleagues in Parliament no longer believe in democracy.” In the absence of sound political leadership unelected judges are stepping ever more into the political arena. A country in which the executive, legislature, and law have simultaneously fallen into disrepute is a country that is indeed in grave peril…and that is England today.
Murrow, once said, “We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men — not from men who feared to write, to associate, to speak and to defend causes that were, for the moment, unpopular. This is no time for men who oppose Senator McCarthy’s methods to keep silent, or for those who approve,”
Good night and good luck.
Julian Lindley-French is Eisenhower Professor of Defence Strategy at the Netherlands Defence Academy, Fellow of Respublica in London, Associate Fellow of the Austrian Institute for European and Security Studies and a member of the Strategic Advisory Group of the Atlantic Council. He is also a member of the Academic Advisory Board of the NATO Defence College in Rome. This essay first appeared on his personal blog, Lindley-French’s Blog Blast.