Anyone wanting an outline of the bi-polar disorder that affects official thinking about torture in particular and human rights in general should read Ian Cobain’s Cruel Britannia (Portobello Books, November 2012), and cross-refer to Lord Bingham’s The Rule of Law (Penguin 2005).
Kenneth Clarke, the last Minister of Justice, is still pushing the Security & Justice Bill. So far, he has failed to persuade Parliament that secret trials, in which the government alone get to decide what evidence should be made public, are a good idea. The spy services want their dark deeds kept dark. They dread being challenged with accusations of criminal or civil liability. Even if the government retreat a little on the Bill, there is likely to be more not less secrecy in legal proceedings that are deemed sensitive. Clarke’s successor, Chris Grayling, thinks the UK should seriously contemplate withdrawing altogether from the European Convention of Human Rights.
The idea that citizens have human rights that they can assert against public authorities in Court is, bizarrely, regarded as something foreign and disreputable. Very few politicians have stood up to defend the Human Rights Act, whose main objective was to allow UK citizens to use UK Courts to assert rights they had anyway, rather than go to Strasbourg. Now the heat is also on Judicial Review, the precious and entirely home-grown legal challenge to administrative decisions – not on their merits, but on the narrower basis that the decision-makers have failed to follow proper and lawful procedures. All the while, the continuing assault on legal aid denies poor citizens access to the law, which has grown into a forest of rules and regulations in so many areas that touch our lives, so that anyone entering it without expert guidance should abandon all hope.
In all these policies, and especially in the doublethink around torture, we can see what the late Bernard Williams condemned as ‘Government House utilitarianism’ in action. He used the term to characterise an account of morality given by the nineteenth philosopher Henry Sidgwick in his The Method Of Ethics. Sidgwick asked ‘whether exceptions should be permitted from ordinary rules on Utilitarian principles’. He thought society was made up of ‘enlightened utilitarians’, an elite minority, who could live good lives by ‘refined and complicated’ rules with numerous exceptions; and everyone else, for whom this more sophisticated system ‘would be dangerous’. He said that
‘… on Utilitarian principles, it may be right to do and privately recommend, under certain circumstances, what it would not be right to advocate openly; it may be right to teach openly to one set of persons what it would be wrong to teach to others; it may be conceivably right to do, if it can be done with comparative secrecy, what it would be wrong to do in the face of the world; and even, if perfect secrecy can be reasonably expected, what it would be wrong to recommend by private advice and example.’
Williams saw this as little more than organised hypocrisy, practised brutally by the British colonial elite in the Empire, for their own advantage.
Ian Cobain in Cruel Britannia shows that the British Government operated a policy of torture on its German enemies during and after World War II, and later in the colonial wars that ended the Empire in Cyprus, Palestine, Kenya, Malaya, Aden, and in Northern Ireland; and then in Iraq, and at arm’s length (but nonetheless) in the Americans’ so-called war on terror, with connivance at kidnapping for trial in the USA (euphemised to ‘rendition’) and the shipping of detainees for interrogation by the torture squads of numerous unsavoury regimes around the world (‘extraordinary rendition’). With forensic skills of a high order, through official records and by talking to witnesses and survivors, Cobain has traced the genealogy of torture methods, and of the men who twisted the minds and bodies of their prisoners, from 1945 to the present. The same methods of torture, and the same men and their pupils, reappear over and over again, in every location where Britain has used torture. The tortured had minimal redress. Government House routinely lied and destroyed evidence. It took 50 years for the Foreign Office to discover an archive from Kenya which they foolishly forgot they had (or they would surely have destroyed it too), and it took a Court order for them to disclose it to the elderly men and women whom British officials had starved, castrated, raped, and tortured in other ways that would have charmed the SS. Cobain’s account is not ancient history. We do not know what the Government gets up to in secret now, and lies about – in the name of its own utilitarian morality: the rest of us are not to be trusted with the truth about its view of right and wrong, and where its and our interests lie. We are to be discouraged from finding out.
I want it to be normal for Ministers and the people who work for them to be held to account, not just every few years at elections, but while they are in power. I don’t want to rely only on the brilliance of an Ian Cobain to tell me what has been done in my name. Government should operate on the basis that I and everyone else can readily assert our rights not to be tortured or subjected to inhuman or degrading treatment or punishment (Article 3 of the European Convention of Human Rights); not to be killed (Article 2); to have a family and private life that is not interfered with for no very good reason (Article 8); to express myself freely (Article 10); to practise my religion (Article 11); not to be locked up without due process of law (Article 5); to have a fair trial (Article 6). Having rights protected by law is a modest demand and, sadly, a modest protection against the State’s desire to get its own way at any price. But at least it is better than not having rights.
English law regards torture as ‘an unqualified evil’: so said Lord Brown in the famous 2005 case A and others v Secretary of State for the Home Department (No 2). But he was not immune from the bi-polarity which afflicts the subject. He said that the executive:
…has a prime responsibility to safeguard the security of the state and would be failing in its duty if it ignores whatever it may learn or fails to follow it up. Of course it must do nothing to promote torture. It must not enlist torturers to its aid (rendition being perhaps the most extreme example of this). But nor need it sever relations even with those states whose interrogation practices are of most concern. (emphasis added)
Even Lord Bingham saw a distinction between the use in Court of evidence obtained by torture (never), and its value for intelligence purposes (as ‘duty’ required). In the same case, he said:
I am prepared to accept…that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6.
So even the most forceful contemporary defender of Rule of Law principles found that the fruits of torture have a lawful use, even if torture itself must be condemned. Banning torture-evidence in Court – where the public would find out – and the approval of its use for intelligence purposes – in secret – must have given the torturers and their masters in Government House great comfort. The proposed limitations on our ability to use the law to uncover secret wrongdoing mean that Ian Cobain’s book is likely to need regular updating.