John Greenwell, a former legal adviser to the Australian government, now retired, and a specialist in international law, has kindly allowed me to put on my website a paper in which he suggests a distinctive approach to the recent majority decision by the English Court of Appeal endorsing the Home Secretary’s startling view that he should be allowed to use information extracted by torture as a basis for locking people up indefinitely and without trial as suspected terrorists under the infamous Anti-Terrorism, Crime and Security Act, 2001, rushed through in the panicky aftermath of 9/11.
See Greenwell’s paper challenging the majority view in the Court of Appeal. For my own view, arriving at the same conclusion but by a different, layman’s route, see my letter in The Times. If you have opinions on these issues, why not put them in a ‘Comment’ at the foot of this post?
PS (12 Oct 04): Please now see a related new entry in this blog and my article on the subject in the Guardian of 12 October 2004.
Brian
http://www.barder.com/brian/
The BBC picked a good Prom concert to televise this evening, a welcome break from the interminable Olympics with commentators raving and screaming about Britain’s this and British that. Musical cognoscenti sneer at televising classical music, claiming that the visual images distract attention from the pure musical experience, and it’s true that a young ravishingly pretty décolletée cellist in close-up can make the male mind wander a little from the intricacies of a Birtwhistle slow movement. But this evening featured, among other delights, the familiar Bach D minor concerto for two violins (BWV1043) in which the interchanges between the two soloists (or should one say duettists?), Andrew Manze and Rachel Podger, gained enormously from being visible as well as audible, their expressions as they glanced smilingly at each other at the start of each new exchange making an even more striking reality of the delicious dialogue. Both played with huge verve and confidence, even gaiety, obviously untroubled by the technical demands of the music, obviously delighting in it: literally a joy to watch as well as listen to. What gloriously happy music!
As for the distractions of undue pulchritude in the orchestra (the English Concert) and their splendid choir, the undeniable, indeed welcome fact is that women of any age don’t have to be beauties to look wildly attractive when playing or singing their hearts out, eyes sparkling, faces glowing with the delight of the music, every limb and sinew attuned to the production of a glorious sound, whole bodies energised. Even the men look good.
How regretfully, after that, one turned back to the news bulletins with their extensive coverage of Mr Pinsent sobbing tragically as he received his fourth Olympic gold medal! Still, he had earned his emotional moment: what an awesome oarsman of the foursome [etc., etc.]
Brian
http://www.barder.com/brian/
http://www.timesonline.co.uk/article/0,,59-1218041,00.html
Letters to the Editor: The Times, August 16, 2004
Admissibility of terror evidence
One of the many questionable features of the Court of Appeal judgment on the admissibility in terrorism cases of certain evidence allegedly obtained by torture (report, August 12), and one on which there has been surprisingly little comment, is Lord Justice Laws’s statement that he could not believe "that the law should sensibly impose on the Secretary of State a duty of solemn inquiry as to the interrogation methods used by agencies of other sovereign statesâ€?.
How else are the Home Secretary and his advisers to assess the reliability of information, if not by the most rigorous and "solemn inquiry� into precisely where it came from and exactly how it was obtained, given that information extracted by torture, or even by severe duress short of torture, is manifestly unreliable compared with information got by legitimate means?
This was plainly an occasion for the Special Immigration Appeals Commission and, when that court failed to act, the Court of Appeal, to issue a ringing condemnation of reliance on evidence obtained by torture, wherever and by whomever practised, as a basis for imprisoning people indefinitely and without trial, on grounds of principle, law and practical common sense alike.
If, when the case goes to the House of Lords, the law lords fail to remedy the deficiencies of the lower courts’ judgments, let us hope that Parliament will do so as a matter of urgency (although David Blunkett’s instant reaction to the Appeal Court’s judgment inspires little confidence that it will).
Yours, etc,
BRIAN BARDER
(Member, Special Immigration Appeals Commission, 1997-2004),
[address].
August 13.
There’s much more to be said about this judgement, of course, and with luck it will all be said before the House of Lords gives its verdict on this dire effort by the Court of Appeal.
Brian
http://www.barder.com/brian/
A ‘Comment’ on my entry about David Blunkett’s latest appalling proposals by Tony Hatfield seems to me worth a post here in its own right – and I hope he’ll also put it on his own excellent (and beautifully illustrated) website at http://tonyhatfield.blogspot.com/. Tony is a retired solicitor with extensive experience in criminal law; he knows whereof he speaks. As he says, we are sleep-walking into a more illiberally governed society than there has been here for 150 years. I pointed out in an interview today for BBC1 television news (tiny snippets of which, possibly including a shot of my main website on my computer screen!, may or may not be broadcast this evening, 11 August, at 6 pm BST), that the right not to be detained in this country without a fair trial goes back to Magna Carta, and is confirmed in the European Human Rights Convention of which Britain was a principal co-author, yet our Labour government has abrogated it, and its action in doing so has just today been endorsed by the Court of Appeal, following its earlier endorsement by the Special Immigration Appeals Commission. Shame on them!
Here’s Tony Hatfield:
>>I cannot disagree with anything written here, Brian. But as I came to your last words, I asked myself, "Do enough people care?â€?. I mean really care enough to make sure these Draconian measures are not, as you put it, "smuggledâ€? onto the statute book? I’m afraid my confidence level is not much above absolute zero. The examples of statutory "smugglingâ€? within the criminal law, in my professional career alone, are terrifying. No longer does an arrested person have an untrammelled right to say nothing when questioned in the police station. No longer does an accused person have the right to keep his defence to himself until trial. In cases of rape and now other sexual offences, a defendant facing, on conviction, many uncomfortable years in jail, finds it increasingly difficult to challenge the complainant’s sexual history. The chances of miscarriages in this area alone increase as juries are now being asked to believe either the complainant or the defendant. No need for corroboration! Thousands of kids are being criminalised by the use of the powers contained in the Crime and Disorder Act 1998. The civil law provisions in the Act allow the police use second-hand hearsay evidence to obtain Anti-Social Behaviour Orders. The government has not exhausted this crafty procedure; a civil order followed by criminal proceedings, with substantial periods of custody for breach. Five years in the case of an ASBO. I shudder to think what the Labour Party’s manifesto for the next election will contain. Law’n'Order, we are told, will be at its heart. I wonder if anyone will really mind, if amongst its provisions are the implanting, under the skin, of a chip to which details can be added during the lifetime if the citizen. Or the compulsory taking of DNA to complete the gaps in present database, which now contains a miserable collection of those arrested or reported for any criminal offence.And yes, Number 51, the national database behind the ID card! A few years ago the limits to the digital storage of information made these ideas fanciful. Today, the technologies are increasing exponentially whilst the costs of storage are moving with equal speed in the opposite direction. We are now a nation of involuntary Prozac users who find "Big Brotherâ€? an entertainment.< <
Thanks for that, Tony.
Brian
http://www.barder.com/brian/
After a few days’ indisposition, my main website is restored to health, and celebrates its renaissance with a short but significant article by a leading expert on international law, Mark Littman QC, on the legality of the Iraq war in the light of the Butler report. The article appears on my website by kind permission of Mr Littman, who retains the copyright. For more nagging questions on the [il]legality of the war and the legal implications of what happened in the UN in the period leading up to March 2003, keep an eye on my website and on this blog. Coming soon to a computer near you.
Brian
4 August 04
In a widely disseminated e-mail message the other day, I rashly mentioned in a throwaway last line that "Summer is a-cummin’ in at last. About time too.â€? This has prompted the following well deserved and magisterial rebuke from that master linguistics professor and pedant-in-chief (First Class), my good friend and mentor Peter Harvey, who, like the immortal Manuel, is "from Barcelonaâ€?:
As with Hamlet’s custom that is more recognised in the breach than in the observance, I am afraid that you are mistaken here too.
"Sumer is icumen in means Summer has come in. In Middle English the past participle of come was construed with be (as venir is with être in French) and the past participle had an ‘i’ or ‘y’as a prefix that is still to be found (just about) in the word yclept. This corresponds in fact closely with modern German, where kommen is construed with sein and (almost) all past participles have the prefix ge-. In German summer has come in would be Sommer ist eingekommen with the ein corresponding to in but being attached as an inseparable prefix to the start of the past participle. Constructions such as He was already gone when we arrived are found in modern colloquial English. As the OED says under go: ‘The perfect tenses were originally formed with be; this is still used where the tense expresses a state, have being substituted where it expresses an action; in many cases either auxiliary may be used without perceptible difference of meaning.¡
"But, having said that, it is not clear that the seasons were recognised in the Middle Ages as they are now. It is possible, especially with the reference to the cuckoo, that this song really referred to the start of the warm weather after winter. Spring meaning the season was first used in the sixteenth century.
"Saludos cordiales,
"Peter�
To which, as a mere pedant cadet (Second Class), I could only reply*: Well, I never! I’m much obliged to Your Lordship.
*Note the technically incorrect positioning of ‘only’: avoidable, I decided, only by a clumsy periphrasis.
Brian yclept Barder
http://www.barder.com/brian/ (website functioning again, happily, after a few problems)
Two new initiatives launched by our inimitable Home Secretary, David Blunkett, and his department, ever vigilant for opportunities to extend the power of the state at the expense of our liberties and privacy, deserve outraged protest, but seem unlikely to get it except from a handful of admirable organisations such as Civitas.
Perhaps the lesser of the two offences is the proposal for a ban on "incitement to religious hatredâ€?, to join our existing laws banning racial and gender discrimination. As the Home Office’s "consultationâ€? paper, “Strength in Diversity: Towards a Community Cohesion and Race Equality Strategy”[1] (wonderful title!) proudly boasts[2],
We now have in place some of the most progressive antidiscrimination legislation in the world, including a duty on public bodies to promote race equality and protection against discrimination based on religion or belief in the workplace.
Now we shall be forced to think long and hard before making any criticism of religion – any religion. This gag is to be forced into our mouths at the very time when we urgently need a frank and uninhibited public debate on the social and political implications of Islam, both "moderateâ€? and "extremistâ€?, in our country and in the world, and on the impact of all religious belief on our political life: witness the role of his "passionateâ€? Christian beliefs in reinforcing our prime minister’s deep conviction that he always does the right thing, notwithstanding all the irrefutable evidence to the contrary. Since the essence of religious commitment is adherence to a set of propositions for which there is no rational evidence, such deep conviction in a political leader poses real dangers for us all. A ban on incitement to religious hatred is made to sound innocuous by the inclusion of the obviously negative word "hatredâ€?, but how confident can we be that such a ban will not soon enough be used to muzzle all criticism or negative analysis of any religious practice or doctrine or its social consequences? It will be ironical if, for example, a ban generally assumed to be designed to protect the Muslim minority in Britain against abuse from non-Muslims comes to be used to bar Muslims themselves from denouncing those whom they regard as heretics or apostates from their own faith, along with other infidels.
Fortunately, the arguments against this pernicious proposal are cogently and eloquently set out in a "Note to the Home Secretary� by the Director of Civitas, available on the Web at http://www.civitas.org.uk/pubs/religiousHatred.php. In his Note, David Green quotes the splendid words of David Hume :
"We may observe, that, in all ages of the world, priests have been enemies to liberty; and it is certain, that this steady conduct of theirs must have been founded on fixed reasons of interest and ambition. Liberty of thinking, and of expressing our thoughts, is always fatal to priestly power, and to those pious frauds, on which it is commonly founded.
And Green concludes that:
For the sake of religion, democracy and the continuance of our tradition of tolerance, there should be no law against religious hatred. Priests, rabbis and imams should develop thick skins.
Amen to that, if you will pardon the expression!
(I am indebted to Iain Murray’s excellent and stimulating Blog, "The Edge of England’s Swordâ€?, for pointing me in the direction of the Civitas website and David Green’s paper just quoted: both obligatory reading. Mr Murray’s parting shot on this hits its mark:
"Blunkett’s new law would clearly violate the First Amendment of the US Constitution. I find that’s a pretty good guide to whether an idea is crazy or not…â€?)
But the second of Mr Blunkett’s latest jeux d’esprit is far more dangerous and objectionable even than his proposed gag on criticism of religion. In April 2004 he published a draft Identity Card Bill "for further discussionâ€?. The Bill and its accompanying commentary have attracted blistering criticism both from the Home Affairs Select Committee (which however seems rather weirdly to have regarded the lack of any proper costing of the proposed scheme, or of any cost-benefit analysis, as representing a much more significant defect in the Bill than its numerous illiberal and unconstitutional features), and even more pungently from the Information Commissioner, Richard Thomas, who has issued a statement on the objections to the proposed bill which is more harshly critical of formal government proposals than anything I can remember seeing from a person holding an official position, apart perhaps from the reports of successive Chief Inspectors of HM Prisons (also, incidentally, directed at the Home Office).
Mr Thomas points out that the identity card proposals would involve, among many other appalling things, setting up a national database containing extensive information on virtually every aspect of citizens’ affairs, all accessible to the government through the chip in the identity card; that a wide range of departments and official bodies will be able to access this information, with no restriction on one department’s ability to read information only of legitimate concern to another; that the Home Secretary will have the power to extend the list of departments and other bodies entitled to access the information; and that the citizen will himself have no right to see the information held on himself in the database and on his ID card, even to check whether it is accurate!
The following partial quotation from the Information Commissioner’s statement gives the flavour:
"I want to make it very clear to the public that this draft Bill is not just about an ID card, but an extensive national identity register and the creation of a national identity registration number. Each of these raise substantial data protection and personal privacy concerns in their own right. The introduction of a national identity register will lead to the creation of the most detailed population register in the UK.
"The lack of a clearly defined purpose for ID cards, including the continuing changes in focus causes concern. Further clarification is also needed regarding the nature and extent of the personal information which will be collected and retained, plus the reasons why such a large amount of information needs to be recorded as part of establishing an individual’s identity.
"I also have concerns in relation to the wide range of bodies who can view the record of what services individuals have used. This will enable the Government and others to build up a comprehensive picture of how we live our lives. However, individuals will not know which bodies have been accessing their personal information because the draft bill removes the right to see their own information. I have asked the Government to reinstate this fundamental data protection right.�
The Commissioner voices many other concerns as well, including the unacceptability of representing the identity card scheme as (initially, anyway) "voluntary�, while in practice making it compulsory for anyone applying for a driving licence or a passport. Not many of us left to make a choice, then.
These proposals look suspiciously like the latest example of an old and discredited strategy beloved of the Home Office: greedy for more power over our everyday lives, and spotting an opportunity to grab some more while we’re all obsessed with the danger from terrorism, they publish proposals containing 150 per cent of what they want, and in response to the ensuing storm of objections to virtually the entire package, they magnanimously, "in a spirit of compromiseâ€?, agree to abandon or modify a third of the more patently unacceptable proposals, leaving them with 100 per cent of what they originally set out to get. And when that happens, we may be sure that Mr Clive Soley MP ("it is important to note that Tony Blair is seen as an effective leader not least because he does take difficult decisionsâ€?), and a raft of other faithful New Labour loyalists, will welcome this helpful ‘concession’, acknowledge that it meets the strongest of their previous reservations and misgivings, and call on us all to support the resulting measure.
If the Home Secretary and his patron, the prime minister, had any self-respect, they would quickly and quietly drop the whole of this disgraceful and illiberal scheme before it sinks under the weight of such far-reaching objections by the relevant parliamentary Select Committee and from the government-appointed Information Commissioner, both of whom know what they are talking about. But Messrs Blair and Blunkett "passionately believe� in the rightness of everything they think up for us, and it will be surprising if they can be forced off this dangerous road by any objections, however authoritative and fundamental.
Brian Barder
http://www.barder.com/brian/
Notes:
[1] The ‘Strength in Diversity’ consultations are open until 17 September 2004. Responses can be emailed to: ccresconsultation@homeoffice.gsi.gov.uk
[2] The Home Office paper contains other remarkable boasts, too: e.g., "The Government is committed to eradicating racism, whether explicit or institutional, in all public institutions and organisations.�
Websites quoted:
http://www.homeoffice.gov.uk/n_story.asp?item_id=993
http://www.homeoffice.gov.uk/docs3/5517-HO-Strength.pdf
http://www.justice.org.uk/images/pdfs/idcard.pdf
http://www.civitas.org.uk/pubs/religiousHatred.php
http://www.econlib.org/library/LFBooks/Hume/hmMPL.html
http://www.publications.parliament.uk/pa/cm200304/cmselect/cmhaff/130/13003.htm
http://clivesoleymp.typepad.com/clive_soley_mp/
From The Times Court Circular, 31 July 2004:
"Her Majesty has been pleased to appoint The Earl of Wessex and Rear-Admiral Timothy Laurence as Personal Aides-de-Camp with effect from August 1, 2004.�
I confess to being a little vague about the precise duties of Personal Aides-de-Camp to The Queen, and entirely ignorant of the scale of their, ah, emoluments, but it’s good to know that the noble Earl, aka The Prince Edward (he gets a capital T for ‘The’ as a son of the monarch), and the husband of the Princess Royal (that’s Princess Anne, remember?), whose promotion from Commander RN to Rear-Admiral inexplicably escaped my notice, have new jobs that should keep them off the streets and out of trouble. Come to think of it, wasn’t Commander Tim an Equerry when Princess Anne first came across him? Presumably going from Equerry to Aide-de-Camp is yet another promotion, or so we must hope. If it is, not many people know that.
Nor, I suspect, is it widely known that The Earl of Wessex – don’t bother looking for Wessex on the map: it doesn’t exist – in addition to his fairy-tale title of (capital T) The Prince Edward, is also His Royal Highness, and Duke-of-Edinburgh-in-waiting, i.e. as in ‘waiting’ for his Dad to go to his long rest. Some people have all the luck.
BLB
http://www.barder.com/brian/
