It is not the houses. It is the spaces in between the houses.
It is not the streets that exist. It is the streets that no longer exist.
It is not your memories which haunt you.
It is not what you have written down.
It is what you have forgotten, what you must forget.
What you must go on forgetting all your life.
And with any luck oblivion should discover a ritual.

“A German Requiem”, James Fenton, Collected Poems, Penguin; 2006

There is a secret garden at the heart of democratic legal systems. It is a garden planted with things that old liberal Atlanticists like me prefer not to see. It is a garden that exists in the spaces between the houses. It is filled with assumptions, subjective and fixed ideas about the operation of the rule of law in democracies compared to states with other political systems. The a priori assumption from which we consider the legal systems of other states is that democracies work, and non-democracies do not work. Further, that this notion of working is fixed by the electoral system of a state, representative government, with changes of the party in power and membership in certain key global clubs and associations. It is based on these things that we judge a legal system to be working or not working. And, these ideas, I repeat, are fixed in time. It does not matter how many reports of the UN Human Rights Council might contradict these perceptions. We do not change our legal behaviour as a state in response to the way in which other democracies behave. The Judiciary gives short shrift to any that try to open the door to the secret garden of presumptions on which much legal interaction between states rest.

Exploring the idea of stasis as the condition of our times has led me to reading and reflecting on the place of extradition in our modern legal system as illustrated in the cases of people like Julian Assange, Arif Naqvi, Mike Lynch and others. This has taken me into this secret garden in our legal system – the difficult and contested space between what we would like democracy to be and what democracy can become, especially in states of exception.

Much of this distance between the idea and the reality of democratic practice in our legal systems was created by the state of exception produced by the war on terror. As many better qualitied writers than I have explored in detail. Extraordinary rendition that allowed for The Guantanamo Bays and other legal short cuts of the war on terror have left our body politic perhaps permanently deformed by institutionalising multiple avenues for placing people in semi-permanent states of stasis. The review of the Human Rights Act and other changes stemming from Brexit, the rise and resilience of European populism, and four years of Trump have made larger and deeper cuts into the fabric of liberalism. This combination of factors – Brexit’s requirement for re-writing law, populists assault on human rights in Europe, Trump’s disregard for the rule of law – have enlarged further the scope of illiberal liberalism. A concept brilliantly described in David Edgerton’s classic study England and the Aeroplane. But it was the war on terror that set us off down this road and it was the Extradition Treaty between the UK and the US which was an early and deep cut directly and with force into such ideas as the protection of defendants, the defence of asylum, general fairness and the reality of proportionality. But to an extent, it has always been thus: we have one legal standard for our friends and another for those we see as our enemies. At the level of state systems this is perhaps inevitable from a realist perspective but from the perspective of the individual, the basis of human rights and the rule of law, it can have devastating consequences.

Extradition is inherently normatively political in a way law is not meant to be. The treaties between states are based on the political relations between states and not justice, natural or otherwise. Arguably, the system of extradition treaties grew and developed based on the political perceptions of individual states  had of each other and not on principles of law. They are therefore not based on active assumptions about the treatment of due process, punishment, the rule of law, judicial activism and other elements of justice and law. They are based on fixed ideas of the character of other states and are therefore often difficult to change. We might assume that the legal system of a democrat state conforms to liberal notions of process and law and that this conformity is fixed in time. Indeed, it has been fixed in time immemorial. It is a kind of inverted Whiggism. The Whigs assumed everything British would continue to get better and better. We assume that democrat legal systems cannot move backwards even as we acknowledge with one part of our legal and political perceptions that some democratic systems can encompass the death penalty, child soldiers, child marriage, forced plea bargaining, and the use of torture, whilst others do not. All things that go against conventions and notions of the rule of law. Yet we still assume a democracy is better than a non-democracy in its treatment of defendants. I certainly hold this assumption, but I hold it as the prejudice of an individual. Not as a state deciding on the fate of a prisoner.

The modern construction of extradition was born in an era in which the western world was divided into profoundly different political systems. The Extradition Act of 1870, section 3, excluded extradition for political offences. Belgium had excluded them in its Extradition Act as early as 1833. While the autocratic states of Russia, Prussia and Austria had the ability to extradite people for political crimes codified in the extradition treaties between them.

In liberal states the roots of the extradition treaties meant that the precedents that developed tended to protect political acts perpetrated by those who opposed the regimes that the liberal states opposed. The acts these people committed would today be characterised as terrorism. The problems of dealing with terrorism are twofold. First, they are based on a subjective view of the state against which the acts of terrorism have been carried out – the UK would not have the same Extradition Treaty arrangements with Putin’s Russia as it would with Canada. Second, the problem of definition of an act of terrorism, which is influenced by how we see the state against which the act takes place, and the identity (race) of the terrorist. What became lost in this debate in the Labour Government’s response to the rise of Islamic terrorism and that lead to the extradition treaty with the USA were basic principles of fairness and proportionality. By moving to what amounted to a streamlined system of extradition to the US, justified by the state of exception which developed after 9/11, the treaty embedded some deeply subjective assumptions about what could be taken for granted in the stability of the rule of law in the democracies that are our natural allies. Assumptions about due process abandoned the reading of proportionality that was based on the disproportionate punishment of crimes by autocratic states and dispensed with fairness completely. In essence, every extradition is political because the act of extradition is a political act.

The war on terror and the trends in democratic states we have seen since then, should give us pause. We need to discount this doctrine of the fixed nature of liberal state view of the rule of law. As I argue in writing about the state of exception in the Covid-spring, states can enter very different phases in their relationships with the legal building blocks of liberty when they face internal threats to the rule of law. These can be external enemies like terrorists or indeed, internal enemies to the rule of law like Donald Trump or Populism. If the law that governs things like extradition is made on the presumption of due process, an equality of arms in legal mechanisms, proportionality of punishments, human rights, safety but the reality of the operation of the legal and justice system becomes something very different, then that law needs to change.

Polities change.  Democratic norms exist, whether we like it or not, on a spectrum and not as fixed entities. The idea that law should not reflect that change when we are considering sending an individual from one jurisdiction to another jurisdiction is an absurdity which must be challenged.