Conor Gearty’s most recent book is Liberty and Security. He teaches at the LSE.
In October 1988 the Conservative student association at Liverpool University invited a diplomat from the South African embassy to speak at one of its events. In those Cold War days Nelson Mandela was still a terrorist and defenders of apartheid were heroes to some on the hard right. But protests seemed likely and the university authorities felt compelled to withdraw permission for the...
The third instalment of the UK’s counterterrorism strategy, Contest (HMSO, £28.50), draws on earlier Labour initiatives – part pseudo-analysis of al-Qaida’s current capabilities, part salesmanship – but ‘reflects the changing terrorist threat’ and ‘incorporates new government policies’. Its appearance also reflects ‘the...
If the first legitimate worry about a social democratic bill of rights would be an explosion of litigation, the second concerns the danger of legitimating a wrong or a great injustice. The Human Rights Act has not really been tested in this regard, since Labour has done so little of an even vaguely socialist nature. But the right to property probably did constrain it in relation to the nationalisation of Network Rail (otherwise why pay compensation?) and there can be little doubt that private schools are standing by with batteries of lawyers to argue that even removing their charitable status (much less the schools themselves) will be a breach of the human rights of parents.
The government’s reluctance to allow intercept evidence to be used in court to procure the conviction of terrorist suspects seems mysterious and self-defeating: why deny yourself such a key weapon in the ‘war against terror’, especially if there are ‘several hundred’ terrorists already in this country planning attacks, as the prime minister has recently claimed?
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“If Gilligan’s broadcast was so terrible, if the Blairs were having sleepless nights as a result of being accused of deceit, if the prime minister was shunned at home and abroad as a liar, the law has a simple remedy, the one adopted by Albert Reynolds in the case that Hutton makes so much of: sue for libel.”
Blair’s speeches over the last three years on the international community and the role of Britain within it reveal a consistent commitment not just to pre-emptive military action but also to international law; the achievement of a settlement in the Middle East; and a continuation of the US-UK special relationship. All three have been more or less publicly shredded by the US, leaving in place only the UK’s commitment to attack Iraq.
Invading countries, bombing from the air, destroying property, attacking people on enemy ground, killing, maiming and so on, are covered by a different law altogether . . . Not only is this law nowhere to be found in the Armed Forces Act, it is not in any Act of Parliament of any sort. In fact, it is nowhere to be found at all.
In 1920 our ‘Mad Mullah’ was Mullah Yussuf Dua Mohammed. Ensconced in British Somaliland, he and his dervishes were the subject of repeated air attacks by an RAF unit. As A.W.B. Simpson writes in one of the early chapters of this sprawling, monumental and sometimes magnificent book, Z Unit was responsible for bombing ‘Medishi Jidali, where there was a fort, and for...
I had been living in England for just eight months when Bobby Sands died in the Maze Prison hospital after spending 66 days on hunger strike. Speaking on the day of his death in the House of Commons, Margaret Thatcher, the Prime Minister, described him as a ‘convicted criminal’ who ‘chose to take his own life’. This did not stop a crowd of nearly a hundred thousand...
The first Catholic to become Lord Chief Justice of England was Charles Russell, in 1894, a man whose benignly Victorian image looked down on me almost every day of my teenage life. He was by a long way my Dublin secondary school’s most famous old boy from the days before Independence and his portrait hung in the school hall. I ate and drank with Russell for five years, often wondering...
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’.
In 2011, Theresa May told the Conservative Party Conference that the Human Rights Act needed to be restricted. One of the examples she gave of its alleged excesses was an ‘illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat’. Except she was making it up, or at least grossly exaggerating one small part of a case into its entire rationale. In March 2013, she created another stir by suggesting that the next Tory election manifesto should include a promise to dump the European Court of Human Rights. This forced old school Conservatives such as Kenneth Clarke to defend the Strasbourg body – which was just what she wanted, as it would make them more unpopular with Europhobic Tory voters, while boosting her own Eurosceptic credentials. May’s speech on Brexit earlier this week needed some xenophobic noise to camouflage her pro-EU stance in the referendum campaign; human rights were once again her target.
Equal treatment under the law only really works when not everybody counts as human. The classical Athenians enjoyed their freedom behind a franchise firewall that kept most people out; the parliamentarians of John Locke’s time accorded each other equal respect but contrived to notice no one else. The truths held to be self-evident by the founding ‘fathers’ of the United States a couple of generations later only applied to rich white men. During the 19th century, British labour activists and Irish nationalists found the law to be good at protecting the Salvation Army and anti-nationalist rabbles, but not so good (entirely absent actually) where their own activities were concerned. In 1925, the home secretary, William Joynson-Hicks, defended an egregious prosecution of Communists by explaining that they had not been engaged in the ‘right kind of freedom of speech’. Fascists could march but protests by unemployed workers were brutally broken up.
The police do not need any new legal powers to deal with the kind of disorder that has been seen this week in English cities. The Thatcher government’s 1986 Public Order Act put the crimes of riot and violent disorder on a statutory basis, with those convicted being liable to terms of imprisonment of up to ten and five years respectively. Despite the prime minister’s snide remark in the Commons yesterday, there are no human rights concerns, ‘phoney’ or otherwise, that prevent pictures of suspects being circulated if that’s the most effective way of bringing them to justice.
The law presents some inconvenient obstacles to the coalition’s series of assaults on the poor. The government is meeting the threat in two ways. When it has no option, it removes legislation that requires it to act as though fairness were more than an advertising slogan. So Harriet Harman’s Equality Act is to be repealed. Much better from the coalition’s point of view, however, is to preserve the form of the law while making sure the poor have no chance to use it.
In the last week of July 1939, just before the summer recess, a hitherto unannounced Bill was sprung on the House of Commons. It was said by the Government to require immediate enactment, and was duly passed by the lower House in two days, becoming law a couple of days later, after an afternoon amble through a supportive House of Lords. It was the Irish in general, and the IRA in particular, who provided the explanation for this contrived panic, which could not be justified even from statistics available at the time. (The worst IRA atrocity of this period, the killing of five people in Coventry’s main shopping area on 25 August 1939, came after, not before the Act.) In the six months to July, the police had managed to bring 66 suspects to trial for offences connected with IRA attacks without this emergency law.
At Sunday mass in my North London parish there was recently imposed a ‘New People’s Mass’. It came suddenly and without warning. One week, we were all enjoying versions of the Sanctus and the Kyrie delivered from the organ loft by a group of locals, musical and devout. The next, song sheets were handed out, with music few could read, and we were expected to sing along. The New People’s Mass has ever since been rather a grim affair – a dreadful noise in the pits while the faithful work out where quavers go and what crotchets sound like. The change had been made in the name of the People by anonymous tribunes so certain of their rectitude that to consult the congregation, much less let it decide, would have been tautological.’‘
The rule of law means different things to different people, but at its core it means that government must be conducted in accordance with the law, and must have legal authority for its actions. The principle was established as long ago as 1765, in Entick v. Carrington, a seminal case in which the King’s Secretary issued a warrant authorising two messengers to enter the home of John Entick and search for seditious papers. There was neither common law nor statutory authority for this action, which Entick successfully challenged in the courts, recovering damages from the hapless messengers (said to be ‘as much responsible as their superiors’) for the trespass to his property.
It was only after the IRA ceasefire that I began once again to be proud of my family’s political past. For more than two generations, it’s been doctors, solicitors, dentists and teachers. Like many Irish families we’ve been happy to lengthen our names with the prefixes and acronyms of professional achievement, while glossing over the patriotic killing and the willing sacrifice of an earlier generation that fought two terrible wars for our unborn lives. Now, after Canary Wharf, Manchester and Lisburn, it should have been back to silence and material success. But a complication has emerged, which threatens to bar our family’s return to its amnesiac state. Michael Collins, Neil Jordan’s film, is not about us as a family, but we are part of its revolutionary story and provide much of its romance.
It is easy to loathe Michael Howard. It is less easy – because more intimidating in its implications – to loathe him for the right reasons. His record as Home Secretary before Her Majesty’s judges is appalling. He has lost a succession of cases to do with prisoners, immigrants and criminal injuries compensation. But his litany of defeats hides more than it reveals. Howard’s tenure at the Home Office has coincided both with the growing sloppiness of a Whitehall exhausted by perpetual Tory rule and with the emergence for the first time of a muscular, interventionist judiciary. In such circumstances, whoever was in charge of the Government’s determined effort to wreck the lives of our prisoners, our aspiring immigrants and our hapless asylum-seekers was bound to get sued more than, say, the Secretary of State for National Heritage.’
The most remarkable aspect of the Scott Report is its simplicity. The famous length and the differing interpretations to which it has been subjected since its publication suggest a learned and complex treatise full of ambiguity and complex allusion, a sort of political bible with Sir Richard Scott in the role of the Yahweh/ Saviour and Robin Cook and Ian Lang fighting it out to play St Paul. In fact, the occasional double negative aside (these alone have been enough to drive our illiterate media into hysterical denunciations of prolixity), the Report is a model of clarity. Its narrative is compelling and its conclusions stark in their certainty. The only confusion and ambiguity in the text flows from Sir Richard’s occasional reporting of the Government’s manifestly untenable case.
1.Were the SAS acting under government instructions when they shot dead three IRA members on a bombing mission to Gibraltar on 6 March 1988? The ambivalently negative answer recently supplied by the European Court of Human Rights has infuriated the Government and re-opened the whole question of whether Britain should now enact its own Bill of Rights. There is no dispute about the basic facts of the case, which was brought by relatives of the three deceased. Mairead Farrell was shot five times in the head and neck and three times in the back from a distance of about three feet. Daniel McCann was hit by five bullets, twice in the back and three times in the head. A pathologist later agreed that the third IRA member Sean Savage had been ‘riddled with bullets’ in what looked like a ‘frenzied attack’. He was hit 16 times, with a number of bullets entering his head while he lay on the ground. Witnesses to the shootings of Farrell and McCann also claimed they had been shot while on the ground, and some observers suggested that they might have attempted to surrender. The European Court had to decide whether killing them in this way infringed their(qualified)right to life under Article Two of the European Convention on Human Rights.
The last two years of sleaze have given the false impression that there is something new about the way in which this government now runs the country. In fact it has been an inefficient, authoritarian, hypocritical and morally bankrupt administration almost since the day it took office in 1979. Its ministers have been resigning (or not resigning) in disgrace ever since its inception. The nepotism shown towards its ‘family’ of opportunistic supporters has been evident from the start but has now grown to such a level that even the Tories themselves are interspersing their frenzies of patronage and self-aggrandisement with calls for moderation and integrity in public office, rather as the inveterate drunk forswears all alcohol during a hangover. The corruption of this long era of Conservative rule extends beyond personal venality. Though loudly committed to the rule of law, especially when it meant ruining the unions in the early Eighties, the Government has found its own actions frequently castigated as unlawful in the British courts, and pilloried in Strasbourg for the infringement of human rights. Its response has been to contrive legal ruses the effect of which has been often to place it quite literally above the law. This contempt towards one great limb of the British Constitution has been matched by the scorn it has shown towards another for which it has also affected respect. The Government’s cynical control of the Commons and its contemptuous disregard of the Lords have allowed it singlehandedly to turn Britain into the impoverished and unequal nation that it now finds itself to be. If it is the recent explosion of personal baseness that middle England has now finally noticed, then we should be thankful that they have noticed anything at all. The grasping mediocrity of this administration’s members is by no means its worst fault but it is the most beneficial to the nation if it is what eventually leads to its timely collapse.
In September 1992, David Mellor resigned from the government after concern over an extra-marital affair and a free holiday in Europe. An affair also accounted for Mr Tim Yeo in early 1994. Soon after this resignation, Lord Caithness resigned following the suicide of his wife, which apparently was the result of an affair he had been conducting. In 1993, Michael Mates left the government after disclosures that he had sent gifts and messages of support to the businessman Asil Nadir. Norman Lamont caused an uproar over his use of public money to evict a tenant from his property. Other lesser Tories, such as Mrs Thatcher’s successor in Finchley, Hartley Booth, have left office under a moral cloud. Neil Hamilton and Tim Smith are part of a long Tory tradition. If we throw our minds back to the Thatcher age, various forms of sleaze are associated with the names of Cecil Parkinson, Nicholas Fairbairn and Patrick Nicholls. Leaving aside the proper ‘constitutional’ resignations of Lord Carrington, Leon Brittan and Michael Heseltine, and the not so proper ministerial non-resignations that cannot be mentioned for fear of the libel laws, we can still see that the rotten-apple theory of ministerial misdemeanours breaks down, since the whole barrel is infected by sleaze.
The rule of law has become a constitutional treasure in Britain because it has managed over the years to deliver an appearance of legality without threatening to destabilise the exercise of raw executive power. Judges have held ministers to account on matters of no great importance - but they always used to run for cover if the magic formula 'national security' was so much as whispered in their presence. Unions have been banned (at GCHQ), internment imposed (during the Second World War), political parties censored from the media (Thatcher's ban on Sinn Féin), CND protesters prosecuted under the official secrets act - and all with the enthusiastic endorsement of successive generations of judges who saw themselves (almost unashamedly) as the iron heel (as Jack London put it) with which brutally to stamp out dissent. The last of these regiments of yes-men were the generation (Lane, Donaldson, Bridge, Denning et al) who saw it as their duty to make sure that any Irishmen brought into their courts, on any count, stayed in the jails to which the police had consigned them - regardless of how obviously ill-treated they had been, or otherwise vulnerable.
This book’s most startling revelation – if true – concerns the state of legal education in Britain today. We are told that from their ‘first days at law school’ our...
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