Government response to Jihadi John another example of how ‘hard cases make bad law’

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March 3, 2015 by Paul Goldsmith

Often, we are faced with an extreme situation that leads to the cry that “something must be done.” Governments, or politicians in general, come up with that something, that might make sense in that particular case, but would be quite dangerous with other issues. This happens when there is a shooting in this country, or a child abuse case, and in particular when we realise that a terrorist has grown up amongst us. But in all these cases the old adage that “hard cases make bad laws” is certainly true. This is why I am grateful for the intervention of the Liberal Democrat Business Secretary, Vince Cable, in blocking new laws drawn up by Downing Street to make universities ban all “extremist” speakers from their campuses. 

This has come to light after the unmasking of “Jihadi John”, as Mohammed Emwazi, a 27 year old man from Queens Park in North London who has recently been featured in numerous videos in which he purports to behead Western hostages on behalf of Islamic State. Emwazi went to a state school near where he lived and then onto the University of Westminster to study computer science. At some point, he was radicalised, joining the same Al-Shaabab jihadi cell as contained Michael Adebolajo, one of those who beheaded the solider Lee Rigby last year. Despite being on the MI5 watch list, Emwazi ended up in Syria with Islamic State, and, as we know, has a great deal of a Western blood on his hands. 

There is little doubt that the ability of extremist Islamist preachers to spread their messages on university campuses risks radicalisation of impressionable young people. It happened at Leeds University in the early 1990s when I was there, standing rather helplessly by as Hizbut Tahrir preachers openly instructed anyone who would listen that, amongst other things, the West was evil, and that duty as a Muslim was to rise up in Jihad and help to create a Caliphate that would spread around the world. Yet, as Cable said yesterday, “speakers who voice extreme views that are not aligned with British values of democracy and freedom should have the freedom to speak.” Theresa May, the Home Secretary, meanwhile believes that the radicalisation that results too often leads to violent acts of terrorism so must be stopped at source. She cites the case of Mohammed Emwazi as an example of this, and it is understandable why she does. 

But the Home Secretary needs to walk a finer line between our security and our democracy. If she responds to an extreme case such as Emwazi with a law that so obviously means that speech can be stifled then those who seek to radicalise our young will have won. Cable wants only those who directly incite terrorism to be silenced. If not, then where do you draw the line about what is “extreme?” Is announcing a wish to create a global Caliphate actually inciting terrorism? Is arguing that British foreign policy in Iraq has destabilised the area and resulted, directly or indirectly in the deaths of hundreds and thousands of Muslims inciting terrorism? Is pointing out the number of children who died in Gaza last summer terrorism?

A better example of the importance of wording in this law would be the word “extreme”. What is extreme nowadays? Russell Brand asking for a revolution against injustice? Nigel Farage demanding an EU referendum tomorrow? Can you see the potential problems? 

If you think I am being facetious, consider this: in 2005, Walter Wolfgang, an 82 year-old socialist and peace activist was ejected from the Labour Party Conference for shouting “nonsense” at then Foreign Secretary Jack Straw as the latter tried to justify the invasion of Iraq. Wolfgang was removed under anti-terrorism legislation. I kid you not. If a law created in the aftermath of a major terrorism incident can be used to eject a disgruntled old man from a political conference for disagreement, then there is a great example of a badly written law resulting from a hard case. 

Theresa May will argue she is only trying to protect us. But so is Vince Cable. It is to him I dedicate the judgement of Oliver Wendell Holmes in 1904 in a competition case.

“Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

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