Have you ever wondered why we’re stuck with the radical cleric Abu Qatada? It’s a question the last four Home Secretaries will have asked as they battled, and failed, to deport him. Now Theresa May is learning just how stubborn the old curmudgeon can be. Indeed, the whole issue of deporting terror suspects is a difficult one. In the nine years that followed the 9/11 attacks, France deported 129 individuals considered to be threats to national security, while we removed just nine.
The intransigence of British judges is not new. Long before the ‘War on Terror’ brought matters of international security to public attention, the French had been pursuing Rachid Ramda, an Algerian wanted for masterminding the 1995 Paris Metro bombings, through British courts. Judges frustrated deportation attempts for more than a decade, causing considerable diplomatic tension between Paris and London. By contrast when Hussain Osman fled to Italy shortly after the failed attempt to replicate the 7/7 terrorist attacks in 2005, he was returned to London for trial within a matter of days.
The bifurcation of British and French approaches to counterterrorism is the subject of a timely new book by Frank Foley (who, in the interests of full disclosure I should note will be joining King’s College London later this year). Countering Terrorism in Britain and France offers a novel and nuanced understanding of just why British judges take such a different stance on terrorism issues compared to their counterparts on the continent.
Foley consciously swims upstream against popular caricatures of the British judiciary as having been overrun by political correctness or some other form of alien liberal consensus. His central argument is that historical experience and an associated body of ‘inherited ideas’ principally accounts for these differences. It is a provocative and powerful thesis.
To understand the French, Foley insists readers first appreciate their vulnerabilities. Their borders were twice breached in the first half of the last century, after which French forces found themselves enveloped by counterinsurgency commitments in Algeria. This has caused a muscular and frequently hypersensitive civic understanding of liberty to evolve in France. Political efforts to achieve ‘security maximisation’ are consequently afforded greater flexibility by French judges than elsewhere.
What is frequently perceived as British pusillanimity – our unwillingness to sometimes remove highly distasteful individuals – is actually, Foley argues, symptomatic of our confidence and quiet self-assurance. There is a sense that the Islamist threat is far from exceptional. Yes, jihadists callously killed an unsuspecting soldier in Woolwich last week, but the British Armed Forces have endured much more menacing foes in the past. British shores were never breached. The Nazis were overcome; and the IRA was slowly unravelled.
This is precisely what the Law Lords have pointed to when locking horns with parliament over plans to increase counterterrorism powers for the police. The issue was brought into sharp relief when judges flatly rebuked Tony Blair’s plans to increase pre-charge detention to 90 days for terror suspects. Civil liberties groups also pushed back against the proposal, arguing that if Blair succeeded then Britain would have had the longest pre-charge detention period of any European country.
That is only partly true. Suspects arrested in French terrorism cases are typically subject to a ‘holding charge.’ Vague and imprecise, this gives French authorities several months to investigate cases more thoroughly before deciding exactly what charges to bring. Much more problematic, however, is the nature of French anti-terror legislation itself. Foley notes that France has a wide range of terrorist offences (including some for merely associating with those accused of such activity) and that it prosecutes terrorists in secret courts without a jury.
Terrorism offences in the UK are much more precise and are processed through the ordinary criminal procedure. The system has served us well. Nearly fifty per cent of all terrorism cases brought before the courts result in a guilty plea.
So what does Foley make of cases like Abu Qatada? The issue, he says, is not a legal conundrum but a cultural one. Despite fleeting moments of outrage, our society broadly counsels against overreaction. The British are instinctively hostile to anything that arcs towards authoritarianism. Thus, while French counterterrorism officers operate in a largely permissive environment with little oversight, we are much more careful to scrutinise the actions of our intelligence and police agencies. Judicial dissent is just one facet of the public debate surrounding security measures in British public life. Civil society, politicians, and the media all ensure varying degrees of accountability too.
There is much to celebrate in this, Foley says. We have a much healthier debate about civil liberties and are more sensitive to ideas of proportionality and respect, than many of our European counterparts. There is almost something quintessentially British about the Abu Qatada debacle. Yes, we want him gone – but not without the pains of due process.
This is the greatest achievement of Foley’s expansive survey. He explains away dense and deadening legislation with a light touch, illuminating areas of contention with reference to popular cases. This makes an otherwise scholarly study readily accessible to a general audience.
While Foley’s tone is decidedly thoughtful, there is also plenty of subtle reassurance too. British counterterrorism is shaped by tradition and experience. One of the greatest challenges from those who threaten us is that they agitate against our values. Yet the normative values of the British state are the product of organic evolution over many centuries. They have endured precisely because we refused to surrender them to expediency. That is the hallmark of a strong and vibrant society – not one beholden to the whimsical throes of intemperance.
Shiraz Maher is Senior Fellow at ICSR, King’s College London.
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