14 August 2005
It’s pure torture for TonySIMON JENKINS
Oh for the good old cold war. You could tell a commie bastard from a fascist bastard. They were no two-bit terrorists. They had friends who could blow whole nations to bits. In those days enemies were enemies. Everyone could tell a civil right from a threat to national security.
Now we are not sure. What are we to make of Anjem Choudray, follower of Omar Bakri, declaring on television that British citizenship implies no allegiance to the law and a British passport is “just a travel document”? To him nationality is a flag of convenience. And what of the Saviour Sect, recruiting youngsters in British mosques to glorify suicide bombers and learn to “instil terror”? This is not just a matter of preaching hatred, which a robust society should be able to handle. The use of faith to excuse illegality and violence is not confined to Muslim extremists: most faiths have their wilder fringes. But these groups have a charismatic following and prey on the susceptible young. They do immense harm to the image of law-abiding Islam. When they seem to move out of madcap communes into the mainstream of terrorist support they demand restraint. At that point Voltaire lays down his pen. The tolerance of intolerance ceases.
I am therefore chary of howling liberty at any new response to these clearly antisocial groups. We now know that Britain has been harbouring asylum beneficiaries, including the current detainees, who have abused the courtesies of their stay. Normally they would be sent home. Yet they are able to shelter behind article 3 of the European convention on human rights as incorporated in the law of the land. This prevents their deportation if their home country might torture or physically maltreat them. Two states involved, Jordan and Algeria, have a record of so doing.
The government, the Conservatives and the tabloid press find this maddeningly inconvenient. So do I. The security services may have been inexcusably sloppy in not cracking the cells behind last month’s London bombings. The present home secretary may prefer to blow £6 billion on his latest computer toy rather than invest in proper intelligence and the community policing of Asian neighbourhoods.
The singling out of Muslims, while going soft on IRA gunmen, may seem discriminatory. However, the behaviour of these men is deeply offensive. If they so dislike Britain’s way of life, they can leave. If they plot to attack it they should be made to leave. There must be a sense of proportion even to human rights. It is not irrelevant that most of the 10 fled persecution at home not as liberal opponents of extremist regimes but as extremist dissidents against more moderate Muslims. Their “human right” not to be sent to whatever fate awaits them at home is real, but it is not one that ranks highest in my list of priorities. Torture is horrible, but the European convention was wrong to place it on a par with capital punishment and genocide.
None of this is any help to Lord Falconer. He is in the same position in the war on terror as was Lord Goldsmith, the attorney-general, in the war on Iraq. He is the mafia lawyer. The boss does not want advice. He wants the rules changed. He wants the usual suspects rounded up and spectacularly eliminated. Falconer’s job is to get clearance. Wimpish judges, whingeing liberals and prime ministers’ wives cannot stand in the way of the great god Headline.
Most of the 12 points listed by Tony Blair before going on holiday turned out to be hot air, a burst of macho initiativitis. They involve laws closing mosques, censoring the media, banning societies and criminalising free speech. Small wonder that Sir Ian Blair, the London police chief, was left murmuring that he would use such powers “sparingly”. Falconer was left to deal with judges, at whom the prime minister directed a few parting shots.
The opinions of judges in this matter are not the issue. The issue is the law. Blair cannot derogate from article 3 of the European convention because one of the features of that article is that you cannot derogate from it. It is inherent to the convention. Unlike Blair’s other pet illiberalism, detention without trial, the proscription of torture is absolute, invulnerable to wars, bombs, emergencies and tabloid headlines. If a country practises torture, people cannot be forcibly repatriated to it. We can all cry shame but that is the law.
Falconer is clearly frantic. His first gambit is to hope that the deportations can go ahead if he can pretend that torture is not all it is cracked up to be. Hence the undignified spectacle of Hazel Blears, the junior Home Office minister, going round east Mediterranean dictatorships trying to give their interrogation methods a clean bill of health. She has not been any more successful in this than were her predecessors. Algerian and Egyptian interrogators do not like aspersions cast on their artistry. They have no inclination to change the habits of a lifetime. The best that Jordan has offered is a “memorandum of understanding”, which sounds one stop short of the thumbscrew.
These are murky waters. Blears is dealing with states that are known participants in the CIA’s “extraordinary rendition” — the subcontracting of torture away from the bright lights of Abu Ghraib and Guantanamo. They are not nice people. For a naive British minister to plead with them to suspend penal policy to help her prime minister with a holiday initiative is humiliating. What does she discuss — just one electrode, please, and not before Christmas? If we must stoop to this I would rather that Blair dump his turbulent imams on the next plane to Uzbekistan and said good riddance.
Falconer rightly accepts that it is for judges to decide whether certain countries have passed the Blears Good Torturing Seal of Approval. But unless they, the law lords and possibly the Strasbourg court reject evidence of torture from Amnesty, Liberty, Human Rights Watch, even the US State Department, they will have no option. They must stop the deportations.
In desperation Falconer is going for belt and braces. He also wants a law to make article 3 somehow less than absolute. He wants judges to “balance” the likelihood of torture — the number of beatings per man hour? — against the threat the detainees pose to British security. He does not want to bully the judges, just lean on them a bit.
This is not outrageous but rather odd. Any judge balances personal liberty against the national interest, otherwise he is a waste of time. The judiciary does not need Falconer’s law or a Home Office certificate to know that these men are a menace. The law lords have a long, and not always creditable, tradition of deferring to the executive in defining national security. Legislating to make them think of balance is window-dressing.
The problem is that no law can unwrite the European convention. The 10 detainees cannot be sent home if they risk torture, period. This has nothing to do with judicial liberalism. As Lord Donaldson says, judges can only interpret the law as put through parliament by the government of the day.
Ministers cannot have it both ways. In passing the Human Rights Act they deferred British law to what 46 sovereign nations, including Britain, had agreed when they wrote the convention after the war.
If the prime minister really wants bombastically to “change the rules” of this game he has only a nuclear option. He cannot “derogate” from bits of the convention. He can only repeal the Human Rights Act and withdraw from the convention altogether. Even by Blair’s standards that would be drastic. To be resiling on a policy that he and his wife have boasted of for years should stick even in Labour’s throat.
To do it to appease torture would be unthinkable.
This row seems to have grown out of all proportion. These men may be offensive and even dangerous. So tag them, bug them, monitor their associates, infiltrate their cells. If they step out of line, prosecute them for incitement, conspiracy, racism or whatever. If need be have special courts. But Britain has the most draconian terrorism laws in Europe — and much good it has done.
Michael Howard and his colleagues let these people in. Ever since 9/11 the prime minister has left them unmolested. Britain has survived worse threats before. Something tells me Britain will just have to cope.