A week the British judiciary might wish to forget

It was a week like no other, one which the proud guardians of British justice will probably wish to forget. Three high-profile events confirmed the existence of a malaise that is threatening the integrity and credibility of the British judiciary. It started with the hearing of an immigration tribunal in Birmingham into the appeal by Sheikh Raed Salah against the Home Secretary’s decision to deport him from the UK. That was followed by a public spat between the Home Secretary and the Minister of Justice over the former’s call to scrap the Human Rights Act. Things went from bad to worse with the visit of the Israeli war crimes suspect, Tzipi Livni, ostensibly at the invitation of Foreign Secretary William Hague.

If Justice Minister Kenneth Clarke was right to describe the evidence for scrapping the Human Rights Act as a parody, he would certainly have described the case against Salah as utterly scandalous.

While Home Secretary Theresa May and her team claimed before the tribunal that the proceedings had nothing to do with the conflict in Palestine, all the evidence they submitted was obtained from Israeli sources and transmitted through the pro-Israel Community Security Trust (CST). For reasons known only to Theresa May, the official she put forward to defend her corner has only been in his job for six months; he confessed that he has no expertise on the situation in Palestine-Israel.
 
Some of the material provided by the CST to the Home Office (HO) was presented by a certain Professor Raphael Israel. Evidence submitted by the appellant to the tribunal showed that Prof Israel holds extreme views about Muslims; he is an avid advocate of the “Eurabia thesis” which claims that a Muslim takeover of Europe is on the cards. In 2007, a number of leading Australian Jewish organisations disassociated themselves from his lecture tour of the country because of what they regarded as his negative and stereotypical views about Muslims.
 
Prof David Miller of Strathclyde University wrote in his expert statement to the tribunal, “Professor Israel’s work has been challenged on grounds of accuracy and bias as well as on the basis of his conceptualizations of Muslims and Islam. This raises two questions: The first is that given the questions raised about his work above, whether it is possible to rely on his factual assertions and translations into English without additional independent sources. The second question is whether someone who does not fully accept that there is a distinction between Islamist extremists and Muslims in general can judge whether a particular Muslim is an extremist.”

Throughout the hearing, no attempt or willingness was shown to understand Sheikh Salah and the context in which he lives and in which the statements at the core of the case were made. No distinction was made between political speech and other speech. Indeed, at no point during the hearings did the HO acknowledge that free speech is accorded the highest status in a democracy.

Obviously buoyed by the pseudo-scholarship and tainted evidence provided by its primary interlocutor, the CST, the HO argued that the case was actually about community relations in Britain. They dismissed as irrelevant the fact that Sheikh Salah had visited the UK and many other European countries on other occasions, without any untoward incidents being recorded. When asked whether there was a fundamental change in his discourse, again the HO argued that this was irrelevant.
 
As the court documents revealed, Mrs May took only 17 minutes to determine that Sheikh Raed’s presence in the UK “would not be conducive to the public good”. Her lawyers argued that she was democratically elected and therefore “accountable”. What they didn’t specify was who she was accountable to, for clearly the CST and the Jewish community constitute only a small fraction of the electorate.  Even though there are three times more Muslims in this country than Jews, and the issue of the third holiest mosque in Islam was due to be discussed, May didn’t see fit to consult any Muslim organization before banning Sheikh Raed. The reason is well known; they are “Islamists, extremists”, and are dominated by the Muslim Brotherhood.

The single line consistently pursued by the HO was that Ms May was elected and had certain powers which she was exercising. It was argued on her behalf that the issue before the tribunal was one of policy which had nothing to do with the law.

Consequently, at no point was there a willingness to examine the illegality of the Israeli government’s actions against which Sheikh Raed Salah is a committed campaigner. So when he said that he would die defending the Aqsa Mosque it was deemed to be an inflammatory statement, ignoring the fact that he was simply upholding his right to struggle against a policy that was manifestly provocative and illegal.

In this light the sitting judges were reminded that UN Security Council resolutions consider all Israeli actions in occupied Jerusalem to be illegal, null and void. The same position has been adopted by UNESCO, UNOCHA and the International Court of Justice, not to mention the reports of the UN special rapporteur for human rights in the occupied Palestine territories.

In the case of the latter, the Israelis have refused to allow the special rapporteur, Prof Richard Falk, to enter the country to do his work simply because he has been highly critical of Israel’s policies, referring to them at times as “apartheid-like” and “ethnic cleansing”.

Legal experts agree that the first task before deciding on deportation is to establish the facts and ensure that any decision taken by the tribunal must be based on “clear and verifiable evidence”. Sadly, this was not the case. It is true that Britain has the right to determine who crosses its borders, but it also has certain international treaty obligations. The case of Raed Salah has nothing to do with immigration. He was going to return to his country and had a return ticket. This case was about free speech.

All the actions taken against Sheikh Salah were done to ensure that he did not speak in parliament. The CST missive urged the Home Office to do “anything” to stop him from speaking. The HO took this advice and disregarded its obligations under Article 10 of the Human Rights Convention, which says the right to free speech should be upheld “regardless of frontiers”. So important is free speech that it was noted that this is the only time the convention uses the phrase “regardless of frontiers”. No wonder Theresa May wants it scrapped. She does not accept that immigration controls have to be enacted in accord with international standards.

The Home Secretary’s “cat” evidence was not the only “parody” of the justice system. The case of Raed Salah demonstrates even more the trivialization of a centuries-old tradition of impartiality and fairness. Theresa May claimed that she had to balance between public safety and free speech and she opted against the latter in the case of Raed Salah. That was only half the story; the other half is that she ruled in favour of the CST not on the basis of what Salah said but how it was perceived by the pro-Israel lobbyists. Such a process has no basis in law. She had to judge on content and substance and not whims and fantasies. Her position is unquestionably untenable and she must consider her future in this important office of state.