Two great and related questions have forced themselves onto the political agenda. They will have to be resolved; their importance demands no less. The first question is: "who should govern Britain?" Are we British still fit to rule ourselves; to make our own laws, to protect our own liberties: to live under a legal system of no little antiquity, which has grown out of the soil of Britain and been nurtured over the centuries by some of the finest intellects these islands have produced? This is a legal system, moreover, which has been admired and adopted in many other countries. English Common Law precedents and reasonings are still cited in court-rooms from Chicago to Canberra.
It is also a legal system which has found a practical answer to one of the hardest questions which the human mind has ever tried to answer. What is the appropriate relationship between the law and politics? In a democracy, there is likely to be a constant clamour for new laws. So how are we to avoid a totalitarian democracy, in which a Parliamentary majority uses its power to coerce its opponents? How can we reconcile law-making and the rule of law? The English Common Law found an answer. First, you safeguard the independence of the judiciary. Second, you endow our courts with dignity and tradition – titles, gowns, wigs, forms of address – in order to symbolise that independence. Third, you welcome a system in which judges can make laws by reasoning from old principles to new circumstances. Fourth, none of this diminishes the sovereignty of the Crown in Parliament. When necessary, Parliament can use statute law to override Common Law rulings.
Perfection is not to be looked for in human affairs. But the unending dialectic between Common Law and statute law is one of the foundations, not only of our freedoms, but of our culture of freedom. It explains why Britain has been able to flourish without a written constitution. A constitution is something that enables those governed by it to stand together. As such, it is always very hard to summarise on paper. Equally, once it is on paper – as many countries have discovered – it is easy to tear up. The US might seem to be the exception: a paper constitution which has endured. But there are defects. The politicisation of the Supreme Court has turned that body into an unelected legislature. Americans proclaim that their system is founded on the separation of powers. Because of judicial activism, that has been under threat. It would be easy to argue that the protection of liberty under the rule of law has been more secure in Britain than in any other major nation.
"Has been": that leads to the second question. Why do we have a government? Here, Hobbes is as crucial as he is ahistorical. There was no moment when our distant ancestors came together to establish a government in order to protect themselves. But over the millenia, forms of government evolved, based on an implicit renunciation of untrammelled freedom in exchange for the security which only governments can create. (That bartering process is still a work in progress. In the course of this century, the debate as to why we are obliged to obey governments could well move from the seminar room to the streets.)
Leaving that longer-term debate to the long term and returning to our Hobbesian foundations, it is clear that the purpose of the British government is to protect the British people, a task which depends upon British laws. That is not only a task, it is a duty, a sacred duty, in which politics is subsumed into patriotism. As matters currently stand, that is a duty which our politicians cannot discharge. Foreign judges will not permit it. The Prime Minister and the Home Secretary have both concluded, on the basis of expert advice, that Abu Qatada should not be allowed to remain in this country. A Strasbourg Court thinks otherwise. If we acquiesce in that ruling, this is no longer a sovereign country. We would no longer be able to use our laws to protect our freedoms.
In Thursday's Daily Telegraph, there was a bizarre attempt to make the contrary argument, by Peter Oborne. It includes the most nonsensical statement which has ever appeared in that newspaper. "There is no institution – not even the MCC – more British than the European Court of Human Rights". Shall we start the refutation with the English Common Law? Peter does make one good point, which he then misuses. It is true that the initial European Convention was drafted by a British lawyer, with Churchill's encouragement, in order "to export the British system". The key word there is "export". War and dictatorship had shattered legal systems across the continent. As John Hayes puts it, those countries had to rediscover decency. That was not true of us. They had everything to learn from Britain and nothing to teach. Our endeavours to assist in the creation of the ECHR were noble and magnanimous. But this was for export only. The British founding fathers would not have dreamed – or nightmared – that a time would come when their exported creation would set itself up as a European Supreme Court and seek to prevent a British government from protecting British interests.
Peter does proclaim his reverence for British legal traditions and indeed topples over into excess. He seems to believe that free speech and judicial independence were guaranteed in the Middle Ages. Before he next writes about British institutions, he ought to refresh his knowledge of their actual history; we are entitled to expect no less from a Cambridge historian. He might also consider some foreign institutions. Peter has often insisted that Islam is often unfairly denigrated in this country, and he has a point. But he also believes that it would be wrong to deport Abu Qatada to Jordan. Is he therefore saying that it is impossible to receive a fair trial in Jordan, which is one of the best-run Arab countries? if anyone else were to make that assertion, Peter would be accusing them of Islamophobia.
Above all, he needs to explain why a legal system which has benefited from long evolution, which is in harmony with the temper of the people whom it helps to govern and which has maintained its independence in the midst of a vigorous democracy should now be subordinated to the caprice of foreign judges. While refreshing his knowledge of history, he might consider the Statute of Praemunire, passed in the 1390s, in order to protect England from intrusive foreign jurisdictions. One does not have to share Peter's idealised view of mediaeval law to think that the framers of that Statute had a point.