A letter from Brian Barder
Member, Siac, 1998-2004
New Labour fails the torture testWednesday December 14, 2005
The home secretary (Response, (December 13) displays a degree of chutzpah remarkable even for New Labour. If Charles Clarke and the government "welcome" the law lords' decision to ban evidence obtained by torture why did the same government fight to avoid such a ban all the way from the Special Immigration Appeals Commission (Siac) up to the House of Lords, instead of accepting it in the first place?
It's equally disingenuous to welcome the test which the law lords said should be applied to establish whether evidence has been obtained by torture without also admitting that this test was only supported by a 4-3 majority of the law lords, and that the senior law lord, Lord Bingham, called it "a test which, in the real world, can never be satisfied ... The result will be that, despite the universal abhorrence expressed for torture and its fruits, evidence procured by torture will be laid before Siac because its source will not have been 'established'... I regret that the House [of Lords] should lend its authority to a test which will undermine the practical efficacy of the torture convention and deny detainees the standard of fairness to which they are entitled under article 5(4) or 6(1) of the European convention."
No wonder the home secretary welcomes it so effusively. The government has lost its argument for being allowed to use torture-tainted evidence, but ends up with a ban involving a test which the senior law lord himself says will be unenforceable. Moreover Clarke's claim that the home secretary will still be able to rely on torture-tainted evidence in making his "executive decisions" is questionable, since it would mean relying on evidence which would be inadmissible in any court hearing an appeal against the decision.