Totally Repugnant

Conor Gearty

On 8 December 2005, after a four-day case involving 19 barristers, the Appellate Committee of the House of Lords (as the forerunner to the Supreme Court was unglamorously known) gave judgment in A and Others v Secretary of State for the Home Department (No 2). The seven law lords laid down a rule of seemingly great importance: that evidence which was – or was likely to have been – obtained by torture was never to be admissible in legal proceedings. The secretary of state had argued strongly that such evidence should be allowed to be used, but he was soundly defeated. ‘From its very earliest days the common law of England set its face firmly against the use of torture,’ the senior law lord, Lord Bingham, declared; as a 19th-century jurist had put it, the practice is ‘totally repugnant to the fundamental principles of English law’ and ‘repugnant to reason, justice and humanity’.

Even their lordships didn’t think, however, that the executive had to ignore everything that came its way the moment torture was suspected. And whatever the law said, as another judge in the case remarked, ‘unhappily, condemnatory words are not always matched by conduct.’ You bet. Earlier this year, on 20 March, the European Court of Human Rights refused to reopen the 1978 case in which it found that the sensory deprivation techniques deployed by the British army against suspected members of the IRA had involved inhuman and degrading treatment rather than torture. Over a strong dissent by the Irish judge, the majority thought there was nothing to be gained by returning to the issue, despite persuasive new evidence about the depth of the harm done to the detainees and the degree to which it was now clear that the UK government had deliberately misled the court about its culpability.

At the time of the original case, much was made of the fact that the practices had been discontinued, and this point was repeated in the government’s case in 2018. It’s true that Edward Heath had given a parliamentary undertaking in 1972 that the techniques of interrogation then deployed would never be used again, ‘with particular reference to any future operations’. But ill-treatment on a large scale continued in Northern Ireland, and with the Iraq war sensory deprivation and other even more brutal ‘techniques of interrogation’ became commonplace once again.

Over the years, legal case after legal case and inquiry after inquiry have demonstrated that when it comes to torture, the worlds of law and practice exist in separate universes. Every now and again a new government sends exploratory missions off to the deep state, but they never appear to arrive. The Cameron coalition established the Gibson Inquiry, which was wound up before it could get stuck in. Gibson was rolled into the Parliamentary Intelligence and Security Committee review chaired by Dominic Grieve, which now – four years later – has given up, having been refused permission by the government (despite earlier promises) to speak to relevant officers on the ground. The prime minister ruled against the Committee when it appealed to her, on grounds of a supposed fear of criminal or civil proceedings against witnesses, even though the Justice and Security Act 2013 renders inadmissible in court any self-incriminating evidence that might be given in good faith in the course of the Committee’s enquiries. The result is two truncated reports, their authors’ frustration palpable.

The first report details, as best it can, the extent of British agencies’ culpability in the mistreatment of suspected terrorists by the US in its ‘war on terror’: direct witnessing of and possible participation in torture; use of information known to have been obtained by ill-treatment; and assistance with the rendition of suspects to places where they were likely to be abused. The second report reviews the latest legal guidance from the government on the treatment of detainees, issued in 2010 but rarely referred to, never adequately reviewed, and deployed only when it has to be as a token of oversight.

Why do they do it this way, the defence and security agencies? What’s the purpose behind the abuse and the cover-ups, and the elaborate mechanisms of accountability which get wound up or starved of evidence when they get too close? The state needs to do two things at once: maintain the entrenched power of the secret services to act with impunity while keeping up the pretence – vital to national self-esteem – that there is no (or hardly any) secret state at all.