The home secretary’s disingenuous response to the torture ruling

In the Guardian on 13 December 2005 the home secretary published a remarkable article  purporting to welcome the law lords’ judgment on 8 December which ruled that evidence probably obtained by torture, wherever and by whomever done, was inadmissible in the Special Immigration Appeals Commission or any other British court, a ruling which in fact the government had resisted through the courts until its defeat last week.  Charles Clarke’s article was also remarkable, and disingenuous, in at least two other respects.  I pointed all this out in a letter published in the Guardian on 14 December to which I await the official response, if any, with interest.  On this occasion my letter as submitted to the Guardian survived the sub-editor’s scissors almost intact, but for the record here is the original text:

The home secretary’s ‘Response’ article today (‘I welcome the ban on evidence gained through torture’, 13 December) 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, as he now assures us, why did the same government fight shamelessly to avoid such a ban all the way from SIAC (the Special Immigration Appeals Commission) up to the House of Lords, at public expense, instead of accepting it in the first place?  It’s equally disingenuous of Mr Clarke to welcome the test which the law lords said should be applied to establish whether specific evidence has been obtained by torture without also admitting that this test was only supported by a 4 to 3 majority of the law lords, and that the senior law lord, Lord Bingham, himself 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 in court, but ends up with a ban involving a test which the senior law lord himself says will be unenforceable and ineffective.  Moreover Mr Clarke’s gloating claim that the home secretary will still be able to rely on torture-tainted evidence in making his ‘executive decisions’ (e.g. to detain, deport and slap control orders on people without having to charge them with any offence) is highly questionable, since it would mean relying on evidence which would be inadmissible in any court hearing an appeal against the decision, as the law lords pointed out.  Mr Clarke’s article seems deliberately intended to mislead by being cynically selective.

Brian Barder (member of SIAC, 1998-2004)
London SW18

Two further points:  

First, Lord Bingham, the senior law lord who presided over the hearings on torture, commenting on last year’s decision by the Court of Appeal to allow British courts to use such evidence as long as UK authorities were not directly involved, said: "I am startled, even a little dismayed, at the suggestion and the acceptance by the court of appeal majority that this deeply rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all."  I can’t help feeling that this implied condemnation, harsh by the standards of formal judicial statements, by Britain’s most senior judge of a majority decision of the Court of Appeal more than vindicates the views I expressed in an article in the Guardian about the Court of Appeal decision back in October 2004.

Secondly, it seems extraordinary that my letter in today’s Guardian, whose full original text I quote above, appears to be the first time that an account has appeared in print of Lord Bingham’s severe and pessimistic strictures on the test imposed by the four junior law lords, outvoting their three senior colleagues, to be applied in determining whether specific information has probably been got by torture and if so whether it should be admissible in a UK court.  Lord Bingham asserts that this test will be impossible to satisfy and therefore likely to negate the effects of the law lords’ unanimous agreement that torture-tainted evidence should not be admissible,  and that such evidence will accordingly continue to be ‘laid before SIAC’, thus denying detainees ‘the standard of fairness to which they are entitled’ under the European Human Rights Convention:  yet this gloomy verdict seems to have passed unnoticed by the numerous reports of the judgment and comments on it.  This chilling warning by the presiding judge shows that the euphoria that greeted the judgment was, alas, at best premature and at worst unwarranted.  The government lost the battle for its grubby right to rely, in its decision-making and in court, on evidence obtained by foreigners’ torture: but it has won the war, for the ban can probably never be enforced.  How can the media and the commentariat have missed such a central and negative element in the judgment?

A fuller account of the disagreement between the majority of four law lords and the minority of three (including Lord Bingham) over the test of admissibility of torture-tainted evidence is in an earlier entry in this blog,  written on the day when the judgment was published.  I made the same points on the same day in two BBC radio interviews (on Radio Five Live and the Radio 4 programme The World at One — I’ll put recordings of both in .mp3 format on my website shortly) but no-one seems to have picked them up, so far as I can tell from my admittedly incomplete reading of the principal print media.  Will my Guardian letter today prompt a sorely needed debate on how to rescue an otherwise historic judgment by the law lords from the ineffectual obscurity to which this gaping loophole seems to have condemned it?  No, I agree, probably not.