You can listen here and now to my BBC Radio 5 Live interview and my BBC radio 4 World At One interview, both on 8 December 2005, about the Law Lords’ ruling that day that evidence obtained by torture was inadmissible in British courts, contrary to the government’s assertion (but there’s probably a big mantrap buried in the judgment: listen and judge for yourself). Both these recordings are big files and may take a few moments to download and play, depending on your connection and software.
Hat-tip (once again) to Owen who recorded these interviews in farthest California from the BBC’s website and converted them, using magic and expensive software in equal proportions, into .mp3 files, just like the ones your teen-age children (or you, if you’re still a teen-ager) listen to through tiny earphones driven like daggers into their ears, nodding their heads vacantly up and down as they listen to the tinny beat while strap-hanging on the tube. O. then e-mailed the files to me in London for insertion into my website. The fact that this process of repeatedly converting the original recording into different formats — and then again when I uploaded them to the Web — has made my voice sound like that of a strangled frog, or of a comical old buffer in an animated cartoon of the early 1960s. Never mind: the technology is marvellous. Or do I really sound like that anyway? Don’t tell me.
A mildly interesting point about all this (not that interesting, really, but worth putting into the record, if that’s the right word) is that both my BBC interviews were done, not by my going in to the BBC studios
at White City and doing it across the table, the BBC’s preferred option; not by the BBC sending a radio car to park outside my house, second choice for the BBC and top choice for me because it might just possibly impress the neighbours; and not down the ordinary telephone line, everybody’s last and most reluctant choice because the sound quality tends to be so poor. In these cases, for the first time, I called the BBC from my computer on Skype, using my headphones and one of those microphones that is fixed to the headset by a bendy steel prong that places the mike (or mic, as they call it these days) about two inches in front of your mouth, or one inch under your chin, like the things some pop singers wear when their voices are too feeble to reach the front row of the audience or even a boom mike a metre above their heads. Result: near perfect sound quality, at any rate in the original broadcasts: those listening closely for signs of different quality as between the interviewers’ and my voices said it sounded as if I had been in the studio. Quite a credit to Skype.
Skype calls from one Skype subscriber to another, anywhere in the world, are completely free, as is the software required. You just download it, install it, and — provided that you have a broadband connection and a headset — you’re off. In fact I hardly ever use it because MSN Messenger (Instant Messaging) is really almost as good and it’s simpler to use for typing messages to and fro in real time (you can save the resulting text to your hard disk with a couple of clicks), or for an audio conversation like a telephone call, or for both but with real-time video on top so that each caller can see the other on his screen. And all this too is completely free, regardless of the geographical distances between callers, who can be in different continents on opposite sides of the world without it costing either of them a penny. All you need is a webcam at each end and matching Instant Messaging software (plus the headset to avoid feedback). When shall we all wake up to the confidence trick that lets the old-fashioned telephone companies get away with the myth that it costs them, as well as you, much more for you to call from London to San Francisco than from one house in London to the house next door?
No, I promise you that neither Skype nor MSN Messenger is paying me for all this puffing of their products, more’s the pity.
Brian
The latest addition to my website is a two-part, mostly not-too-serious diary of our cruise to the
Caribbean in November 2005. To read these, click here for Part 1 and here for Part 2. Guidance on how to have a look at some of our cruise pictures is here.
Next year (2006) we’ll be doing a more up-market cruise to St Petersburg and some Scandinavian capitals, if we can still find some kind insurance company willing to sell travel insurance to a couple of old codgers with colourful medical histories (why are insurance companies so risk-averse when they charge such enormous premiums?). Watch this space for an account of that one, too — but not until next July.
PS: No, we’re not paying the impressive prices for that St Petersburg cruise that you see on its website: for some arcane reason we qualify for a hefty discount (don’t ask).
Brian
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.
Brian
The website of the GMB union helpfully records that Mr John Sunderland, the President of the Confederation of British Industry (CBI), "The Voice of Business", big (and small) business’s lobby and club, has an annual income of £2.3 million plus a pension pot of £14 million (paid by his companies, not by the CBI). But is Mr Sunderland typical in this respect, and if so what are the implications for equality and inequality in our society?
The independent Incomes Data Services (IDS) website says that average annual earnings for full-time male employees in the UK stood at £31,515 a year in April 2005, according to the latest Annual Survey of Hours and Earnings (ASHE). "Top pay in the FTSE 100 companies reached a landmark in 2005 with the average total earnings of lead executives breaching the £2 million ceiling"; and as this is an average, it’s a fair inference that a goodly number of them were earning, or at any rate receiving, substantially more than £2,000,000 — and that’s just for a year. So the CBI’s Mr Sunderland may well not be in the very top bracket. By the same token, a good many full-time male employees, with average annual earnings of £31,515, must be earning substantially less than that unimpressive sum (£606 a week, compared with those FTSE 100 bosses’ £38,462 a week), just as others are obviously earning substantially more. And it’s not hard to imagine the feelings of those ordinary people whose pension rights have been plundered by the companies which have employed them or are supposed to have insured them and who face a life in retirement of hardship, if not penury, when they hear of Mr Sunderland’s £14 million pension pot. 
In today’s Guardian (13 Dec 05), George Monbiot remarks on the not very altruistic policy aims of Mr Sunderland’s CBI:
In the submission it made to the chancellor’s pre-budget report, it demanded that the government spend less on everything except business. The state should cut its planned spending on health, social security and local authorities, and use some of the savings to protect and enhance its "support and advisory services for trade and businesses". Our higher-education budget should be used to supply free research for corporations. The regional development agencies should "expand their activities to support more extensive business-to-business networking and collaboration". Further road taxes should be abandoned, and the climate-change levy "should be frozen", but the government should help businesses by building more roads and airports. This is what the CBI means by free enterprise.
An assessment by the Institute for Public Policy Research (August 2004) showed that Britain became more unequal under Tony Blair. Despite its association with the Labour Party, the IPPR concluded, among other things:
- Since 1997, the richest have continued to get richer. The richest 1 percent of the population has increased its share of national income from around 6 per cent in 1980 to 13 per cent in 1999.
- Inequality in disposable income (after taxes and benefits are accounted for), appears to have slightly increased since 1997 after significant increases in the 1980s.
- Wealth distribution is more unequal than income distribution, and has continued to get more unequal in the last decade. Between 1990 and 2000 the percentage of wealth held by the wealthiest 10 per cent of the population increased from 47 per cent to 54 per cent.
- Working-age adults without children constitute an ‘unfavoured group’, who have not benefited from government policy. In 1994 they constituted 25 per cent of people in poverty. By 2002/03 this had increased to 31 per cent.
(IPPR, August 2004. Source: "Ideology and ethics of Tony Blair")
Blair "set out his faith" in the Guardian on 14 May 2001:
New Labour’s big idea is the development of human potential, the belief that there is talent and ability and caring in each individual that often lies unnurtured or discouraged," he said….Mr Blair invoked the experience of his own communist-turned-Conservative father to explain why he had rejected both Thatcherism and traditional socialism in order to embrace a meritocratic vision of equal opportunity for all. [My emphasis.]
In an entry of April 2002 in this blog (with apologies for quoting myself, but it remains relevant), I wrote:
The Sunday Times on 7 April [2002] recalled Tony Blair’s words at the beginning of his second term: "As a nation we are wasting too much of the talents of too many of the people. Our mission … must be this: to break down the barriers that hold people back, to create real upward mobility, a society that is open and genuinely based on merit and the equal worth of all." Unfortunately, the last six words of this passage are in bleak conflict with the rest of it: the sabre-toothed meritocracy which he is shamelessly advocating ("real upward mobility… genuinely based on merit") flatly denies "the equal worth of all", sending the weak and vulnerable to the wall. The "equality of opportunity" which is here by implication sanctified as society’s guiding principle is a deeply Tory concept, unless accompanied by a firm commitment to equality of outcomes: far too revolutionary a concept, alas, for New Labour. Of course no-one, even the most Utopian, advocates total equality of wealth and income for all; but if there’s to be any justice and humanity in the way society is ordered – real respect for "the equal worth of all" – it’s essential that the state should intervene actively in the economy to minimise the gross inequalities which ‘equality of opportunity’, market forces, flexibility in the labour market, and the rest of the capitalist shibboleths automatically produce.
Mr Blair and New Labour (and no doubt the fat cats of the CBI) contentedly let it be implied that a commitment to ‘equality of opportunity’ is the same thing as a commitment to equality, whereas without vigorous corrective action by the state, it’s the opposite — a license for the strong, the unscrupulous and the lucky to enrich themselves at the expense of the weak, the conscientious and the unfortunate. By the same token, Mr Blair and New Labour actively seek to promote Britain as a ‘meritocracy’, as if such a system represented a just society of a kind that should commend itself to a left-of-centre party. This is an ignorant perversion of the meaning of a meritocracy, a word invented by Professor Michael Young in his 1958 book The Rise of the Meritocracy. In the Guardian of 29 June 2001 Michael Young himself wrote as follows (no apologies for quoting him at some length):
I have been sadly disappointed by my 1958 book, The Rise of the Meritocracy. I coined a word which has gone into general circulation, especially in the United States, and most recently found a prominent place in the speeches of Mr Blair. The book was a satire meant to be a warning (which needless to say has not been heeded) against what might happen to Britain between 1958 and the imagined final revolt against the meritocracy in 2033. Much that was predicted has already come about. It is highly unlikely the prime minister has read the book, but he has caught on to the word without realising the dangers of what he is advocating.
Underpinning my argument was a non-controversial historical analysis of what had been happening to society for more than a century before 1958, and most emphatically since the 1870s, when schooling was made compulsory and competitive entry to the civil service became the rule. Until that time status was generally ascribed by birth. But irrespective of people’s birth, status has gradually become more achievable.
It is good sense to appoint individual people to jobs on their merit. It is the opposite when those who are judged to have merit of a particular kind harden into a new social class without room in it for others. Ability of a conventional kind, which used to be distributed between the classes more or less at random, has become much more highly concentrated by the engine of education. A social revolution has been accomplished by harnessing schools and universities to the task of sieving people according to education’s narrow band of values. With an amazing battery of certificates and degrees at its disposal, education has put its seal of approval on a minority, and its seal of disapproval on the many who fail to shine from the time they are relegated to the bottom streams at the age of seven or before. The new class has the means at hand, and largely under its control, by which it reproduces itself.
The more controversial prediction and the warning followed from the historical analysis. I expected that the poor and the disadvantaged would be done down, and in fact they have been. If branded at school they are more vulnerable for later unemployment. They can easily become demoralised by being looked down on so woundingly by people who have done well for themselves. It is hard indeed in a society that makes so much of merit to be judged as having none. No underclass has ever been left as morally naked as that. They have been deprived by educational selection of many of those who would have been their natural leaders, the able spokesmen and spokeswomen from the working class who continued to identify with the class from which they came. Their leaders were a standing opposition to the rich and the powerful in the never-ending competition in parliament and industry between the haves and the have-nots. With the coming of the meritocracy, the now leaderless masses were partially disfranchised; as time has gone by, more and more of them have been disengaged, and disaffected to the extent of not even bothering to vote. They no longer have their own people to represent them….
In the new social environment, the rich and the powerful have been doing mighty well for themselves. They have been freed from the old kinds of criticism from people who had to be listened to. This once helped keep them in check – it has been the opposite under the Blair government.
The business meritocracy is in vogue. If meritocrats believe, as more and more of them are encouraged to, that their advancement comes from their own merits, they can feel they deserve whatever they can get. They can be insufferably smug, much more so than the people who knew they had achieved advancement not on their own merit but because they were, as somebody’s son or daughter, the beneficiaries of nepotism. The newcomers can actually believe they have morality on their side. So assured have the elite become that there is almost no block on the rewards they arrogate to themselves. The old restraints of the business world have been lifted and, as the book also predicted, all manner of new ways for people to feather their own nests have been invented and exploited. Salaries and fees have shot up. Generous share option schemes have proliferated. Top bonuses and golden handshakes have multiplied. As a result, general inequality has been becoming more grievous with every year that passes, and without a bleat from the leaders of the party who once spoke up so trenchantly and characteristically for greater equality.
Michael Young, as secretary of the policy committee of the Labour party, was responsible for drafting Let Us Face the Future, Labour’s manifesto for the 1945 general election and the blueprint for the astonishing achievements of the Attlee government. He died at the age of 86 in 2002. His Guardian article of the previous year reflects accurately his eloquence, vision and bitter disappointment. It is well worth reading in full.
In the same year and the same newspaper as those of Michael Young’s philippic on the abuse and misunderstanding of his warnings of the dangers of a meritocracy, Tony Blair (as quoted earlier) neatly summed up the political ignorance which equates equality of opportunity with equality, and fails to understand the injustices and gross inequalities of a meritocracy, when he explained –
…why he had rejected both Thatcherism and traditional socialism in order to embrace a meritocratic vision of equal opportunity for all.
No wonder David Cameron’s fresh-faced and well fed New Tories see shining opportunities for helping our New Labour prime minister to get his policy proposals through parliament against the appalled objections of his own party.
Brian
In a recent blog entry I used the word ‘formulas’ as (obviously) the plural of ‘formula’.
This elicited an anguished protest from an old friend:
Subject: blogs-schmogs
I try not to read too many of these, since my main objective these days in this terrible world is to stay calm. But when I do (read blogs I mean), I find it distressing to discover, in one sentence, formulas for formulae (and from a classicist) and prophesy for prophecy. O tempora…
I replied:
Thanks. ‘Formulas’ was deliberate (I don’t hold with fancy Latin endings when a perfectly good English one is available — forums is fine, although admittedly I wouldn’t write phenomenons — no, not Latin, I agree). But I’ll correct prophesy…
Oh tempuses, Oh moreses, as you rightly say!
The reply:
I agree on forums but not formulas, although give it a few years and I will have to give in. My pet hate is the use of media as a singular. But there are plenty others (peninsular as a noun, for example – perpetrated by Sassenachs who can only ever pronounce the letter r by tacking it onto the end of a word where it doesn’t belong, as in Indiar and Asiar and Australiar and everywhere else – or even, the other day, peninsula as an adjective).
And shouldn’t it be O moses?
(He’s a Scot, of course.)
And finally I have bent his bagpipe-playing, kilt-wearing ear — Sassenachs, indeed! — by moaning about the plague of illegitimate ‘whoms’ where ‘who’ is required:
"The prime minister, whom many people suspect is determined to hang on to power…"
"David Cameron, whom I’m inclined to believe is probably a decent man at heart…"
— a kind of misplaced syntactical gentility, like a pathological aversion to the use of ‘me’, as in: "He spoke to my mother and I", "the party given by Fred and I", and so on.
And in the same grating category alongside ‘the media has’ is the same wretched abuse of ‘criteria’, hinted at earlier: "The one criteria for success in this business is…"
Me, or I, I blame that President Bush.
Brian
Harold Pinter, writer of some of the most memorable and distinctive plays of our time — more than 30 of them (and two dozen film screenplays), brilliant actor, bad poet, tireless political campaigner but with a regrettable penchant for the shrill rant, aged 75 and recent cancer sufferer, has been awarded this year’s Nobel Prize for Literature, apparently to his own and many others’ surprise and almost universal delight. Too sick to go to Stockholm to receive his prize and deliver the customary lecture in person, he recorded his lecture on video for display on giant screens at the ceremony.
Pinter’s Nobel lecture has caused a considerable stir, not just because in it he described in fascinating and unusual language some of the creative process involved in writing his plays, with vivid examples, but also because of his lecture’s ferocious attack on United States foreign policy, not just over Iraq, but throughout the period since the second world war. As the Guardian’s theatre critic, Michael Billington, wrote on 8 December 2005, –
In fact, the speech was all the more powerful because it was delivered in a husky, throaty rasp. The facts are that Pinter, having recovered from cancer of the oesophagus, was earlier this year stricken by a condition in the mouth which affected his vocal chords. Then 10 days ago he was re-admitted to hospital with severe leg pains. But he briefly emerged on Sunday to record his Nobel speech.
The hearts of many of us sank when we heard that Harold Pinter had used his lecture to launch another attack on the United States. I half expected a shallow diatribe of the kind he has sometimes delivered on previous occasions: the kind of polemic with whose substance most of us would no doubt agree, but whose shrillness often seemed poorly calculated to convince the not yet persuaded. But Pinter certainly rose magnificently to the occasion of the Nobel lecture: here was the writer and actor deploying all his formidable skills of eloquence, irony, comedy and passion, all in his own distinctive voice — metaphorically, at least. And the politics are superbly backed up by chapter and verse: the charges are specific, detailed, lethal; unanswerable. Five cheers for Pinter! Let’s hope that he will be widely read and heard, especially in the US.
The lecture has been published by many newspapers and magazines already. But it remains available on the Web both in text form in an ordinary web page (also available as a .pdf file) and as streaming video, the latter allowing us to hear again and again that distinctive, passionate, rasping voice. And this time there are no Pinteresque pauses.
Harold Pinter on the set of The Go-Between, 1969
Brian
I found myself this morning (as a result of following a link from the admirable Philobiblion) reading a fine denunciation of torture on an American lady’s blog: but was then disturbed to find that the comments which followed it included several by contributors whose preoccupation seemed to be to think up definitions and scenarios in which a little bit of torture would be OK. I wrote my own comment expressing, I hope quite courteously, my profound disagreement with these efforts. But the blog refused to accept my comment:
Your comment submission failed for the following reasons:
Your comment could not be submitted due to questionable content: torture com
Please correct the error in the form below…
You can judge for yourself whether the content of my attempted comment was ‘questionable’. Here it is.
"I have to say (as an ignorant and priggish Brit) that I’m dismayed by some of these comments. Torture is always and everywhere wrong and inadmissible: it corrupts and brutalises those who torture, those who are tortured, and the society that acquiesces in it. At the lowest level of practicality and leaving aside overriding considerations of ethics, information obtained by torture is rarely reliable: people being tortured will say anything to get the torturer to stop.
It’s easy to devise fanciful scenarios in which someone has information about an imminent explosion or other disaster that might claim thousands of lives (or even one life) and the only way to extract the information and prevent the disaster is to torture its possessor, but extensive research has failed to turn up a single example of any such situation in real life. It’s pure Hollywood B feature. To base an entire policy on the possibility of such a situation arising is essentially frivolous. And it suggests that the prohibition of this utterly evil practice is somehow relative, and dependent on circumstances. Once you cross that Rubicon, you may be sure that it will be ruthlessly exploited by sadists and moral monsters until torture comes to be regarded as a kind of regrettable but necessary way of getting information out of people who aren’t really fully human and who don’t have the same level of human rights as the rest of us.
In Britain the use of torture by the state was formally and definitively abolished in 1640. It’s frightening, and shaming, to find people in the 21st century solemnly trying to think up situations in which it could justifiably be restored, turning the clock back by three and a half centuries.
The attempt in some of these comments to identify types of torture that needn’t be regarded as torture is equally grotesque. There’s not a lot wrong with the definition in the UN Convention Against Torture (binding on the US, the UK, and just about every other civilised country):
…torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
No-one should try to wriggle out of that."
Brian [More >>>>]
Postscript, 12 December 05: Those who think it legitimate and useful to play around with sanitised definitions of systematic state-sponsored brutality that somehow isn’t supposed to qualify as torture, or who are inclined to take at face value the carefully phrased statements by Condoleezza Rice, the US Secretary of State, on her Grand Tour of Europe last week, denying that the US ever ‘knowingly’ sent terrorist suspects to countries where they could safely and discreetly be tortured, ought to read the long article, ‘Terrorised’, in yesterday’s London Sunday Times by Stephen Grey and John Follain, usefully including on its fourth page a relevant and moving article by Andrew Sullivan, all compulsive and compulsory reading. If you Google ‘Stephen Grey’, incidentally, you’ll find ample evidence of the huge contribution this courageous prize-winning British journalist has made, not only in his reporting from Iraq but also in uncovering some of the murky practices spawned by the so-called war on terror: he more than anyone else has been responsible for publicly exposing the massive scandal of ‘extraordinary rendition‘ by the CIA, with the apparent Nelsonian complicity of the British and other European governments. He is also, I ought to declare, a friend. (Tony Hatfield, as mentioned in his comment on this post, has put some invaluable material about the Condi Rice denials and attempted re-definitions of torture on his admirable website.) Can it be that it’s all beginning to unravel?
BLB
Lord Bingham, the senior law lord and a former Master of the Rolls and Lord Chief Justice, is probably the most brilliant judge, with the most penetrating intellect, that this country has produced in a generation. The law lords’ judgment on the inadmissibility of evidence obtained by torture, under Bingham’s chairmanship, has added yet more lustre to his record and reputation. It’s not in any way his fault that by a majority of four to three his colleagues insisted, against his advocacy, on imposing a test for determining whether information is likely to have been derived from torture which will almost certainly negate the practical effects of the judgment. In the general euphoria that has greeted the judgment, this seems to have been largely overlooked.
Yesterday’s (8 December 05) judgment by the Law Lords ruled that the Special Immigration Appeals Commission (SIAC) and other UK courts may not admit evidence that has probably or certainly been obtained by the use of torture, even if the torture occurred in a foreign country without the knowledge or connivance of Britain. This is of course hugely welcome, and a landmark, especially after the British government has spent nearly three years arguing the contrary – and after the astoundingly contrary findings of SIAC and the Court of Appeal.
But the devil, as always, is in the detail, and the majority of the Law Lords have unfortunately laid down a test for establishing whether a piece of information has probably been got by torture which Lord Bingham himself believes –
is 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". [My emphasis -- BB]
Lord Bingham and his two next most senior colleagues proposed that the test for establishing, on the balance of probabilities, that a piece of information had been obtained by torture should be that if there is a plausible reason for suspecting that torture has been the source, for example because the information comes from a country known to practise torture, –
or where SIAC with its knowledge and expertise in this field knows or suspects that evidence may have come from such a country, it is for SIAC to initiate or direct such inquiry as is necessary to enable it to form a fair judgment whether the evidence has, or whether there is a real risk that it may have been, obtained by torture or not. All will depend on the facts and circumstances of a particular case. If SIAC is unable to conclude that there is not a real risk that the evidence has been obtained by torture, it should refuse to admit the evidence. Otherwise it should admit it.
But, sadly, this admirable formula was outvoted by a majority of their lordships, who preferred the test suggested by Lord Hope:
… the test that should be applied by SIAC [which] must direct its inquiry to what has happened in the past [is:] Is it established, by means of such diligent inquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture? If that is the position, article 15 [of the UN Convention Against Torture] requires that the information must be left out of account in the overall assessment of the question whether there were no reasonable grounds for a belief or suspicion of the kind referred to in … the Anti-terrorism, Crime and Security Act 2001. The same rule must be followed in any other judicial process where information of this kind would otherwise be admissible.’
Lord Bingham laments that the adoption of this alternative test will in practice negate the effect of the judgment as a whole:
This is a test which, in the real world, can never be satisfied. The foreign torturer does not boast of his trade. The security services, as the Secretary of State has made clear, do not wish to imperil their relations with regimes where torture is practised. The special advocates have no means or resources to investigate. The detainee is in the dark. It is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet. 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 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. [My emphasis -- BB]
SIAC and other courts have only one way to ‘investigate’ the nature of the source of information served up to them to justify wrecking people’s lives on the basis of mere suspicion: and that is to ask the intelligence and security services to find out for them ("as far as is practicable") whether torture was used to get the information, to enable the court to judge whether there’s a probability of torture having been used. There can be no other basis for such an assessment. You may be sure that after a decent interval the reply will be to the effect that they have made all possible ‘diligent’ enquiries and while all sorts of unpleasant things are possible in this wicked world, they haven’t come up with anything to suggest the ‘probability’ that the info is the product of torture. They may even admit that there’s a ‘possibility’ that it is, but that’s not enough under the formula devised by the majority in the Lords to make it inadmissible. The much more rigorous formula devised by Lord Bingham and his two most senior colleagues would have required the security services, in cases where there was a plausible suspicion of torture having been used, to satisfy SIAC etc that it probably had not been. But that was outvoted by the more junior (and more gullible) four.
No wonder Hazel Blears and other home office ministers went on radio and television yesterday so cocky and triumphant, grossly misrepresenting the fact of the government’s actual defeat and humiliation on the point of principle, but claiming (probably correctly) that in practice nothing whatever would change. The government Neanderthals have lost the battle but won the war.
All is not, of course, necessarily lost. The issue of the test to be applied might, with luck and ingenuity, be referred to the European Court of Human Rights, which could well prefer the Bingham formula to that adopted by the Law Lords’ majority. In practice, moreover, the relatively narrow gap between the two formulas might not turn out to have much real significance, although Lord Bingham’s pessimistic prophecy strongly suggests otherwise. In an ideal world, we would be able to look to parliament to substitute the Bingham formula for the one laid down on Thursday by the Lords’ majority. But that is in the realm of fantasy, at any rate for any foreseeable future government.
Note: Article 15 of the UN Convention against Torture provides that –
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
Brian
The news that Sir Ian Blair, the Metropolitan Police Commissioner, and other senior officers of the Met are to be investigated by the Independent Police Complaints Commission to determine what they told the media in the aftermath of the shooting of the innocent Brazilian Jean Charles de Menezes on 22 July 2005, prompted the Guardian last Wednesday to quote some blog comments on the hapless Commissioner — including mine:
Guardian, 30 November 05
Today on the Web: Sir Ian Blair
Sir lan Blair is a man bereft of online supporters.“I am amazed that he still has his job. He is heartless scum of the scummiest kind.”
anarchicrules.blogspot.com“That he is to be investigated by the Independent Police Complaints Commission is welcomed, but not too many hopes pinned to it. I don’t expect him to be disciplined or to resign of course but just the idea of the chief constable being forced to account for his actions is quite amazing— if we were a former Russian republic, they would be calling this a velvet revolution. But then again they can bring down whole régimes with 20,000 demonstrators whereas 500,000 demonstrators here can’t even change a government foreign policy decision.”
livejournal.com/users/kellanethicsThe most stalwart defence of Sir Ian comes from blogger “Brian Barder” (albeit written before the latest news):
“It seems clear that there are no grounds whatever as of now for the Metropolitan police commissioner, Sir Ian Blair, to be called on to resign. Even his most hysterical current critics can hardly believe, or claim, that his remarks immediately after the shooting were knowingly untrue or deliberately intended to deceive.”
barder.com/ephems
The original item in the Ephems blog, dated 20 August 2005, is at http://tinyurl.com/dufc4 and even with hindsight I stand by all of it, although I’m not too confident that the two current IPCC inquiries will necessarily give Sir I Blair a clean bill of health: IPCC people may not have been favourably impressed by Blair’s (to my mind wholly understandable) attempt to prevent an IPCC inquiry for fear that it would deflect manpower and energy from the main police investigation of the bombings, actual and abortive, of 7/7 and 21/7. If you visit my post of 20 August 2005 from which the Guardian quotation is taken you’ll see that it attracted 27 ‘comments’ (including replies to some comments by myself). Few will succeed in working their way through all of them and I don’t really recommend it.
I can’t imagine why the Guardian enclosed my name in quotation marks — unless it suspected that the real author of the comment was Ian Blair, using my name as a nom de blog.
PS: Just back from three weeks away (link to some holiday snaps, as we used to call them, here), which is why there’s a gaping hole in Ephems. I hope to resume normal service soon, once I have demolished the snail-mail mountain and drained the e-mail ocean that awaited our return.
Brian
A selection of pictures from our Caribbean cruise, November 2005. Click on the picture or the caption to see some more, and then click ‘prev’, or ‘next’, or ‘View as slideshow’. Pictures are of the Azores, Antigua, Tortola (BVI), St Lucia, Grenada, Barbados and Madeira. All the Caribbean pictures are on pages 1 to 5 on Flickr.
A (fairly light-hearted) diary of this cruise is in two parts, Part 1 and Part 2.
Brian
