Double talk
Date: 30 September 2011
Authors: Roger Smith
Issue: Vol 161, Issue 7483
Categories: Opinion, Human rights
Labour’s former minister, Adam Ingram, escaped rather more lightly in Sir William Gage’s report into the death of Baha Mousa than Richard Norton-Taylor’s recent dramatisation of its proceedings (Tactical Questioning: Scenes from the Baha Mousa Inquiry, shown at the Tricycle Theatre). The latter culminated in a very funny passage where Ingram squirmed under cross-examination.
Ingram’s problem is that he gave repeated assurances that the UK did not torture: it did not even intimidate prisoners by “hooding” them. Thus, he told the chairman of the Parliamentary Joint Committee on Human Rights: “Hooding was only used during the transit of prisoners; it was not used as an interrogation technique.” This assurance was somewhat at odds with a report from the International Committee of the Red Cross (ICRC) which had been previously received by Ingram. This said that: “Inmates were routinely treated by their guards with general contempt…Hooding appeared to be…part of standard intimidation techniques used by military intelligence personnel to frighten inmates into co-operating.”
Ingram was reduced before the inquiry to justifying his assertion that hooding was not used as an interrogation technique by saying that “it had not been proved that it had been”. Sir William reported that: “Some correspondence was plainly inaccurate where it purported to assure the addressee that the ICRC had expressed themselves content with the treatment of prisoners. Similarly, some gave an incorrect impression in relation to the duration and frequency of the use of hoods. In places the objective effect of the information was misleading.
The Ministry of Defence bears a corporate responsibility for the fact that inaccurate answers relating to hooding were sent out in the name of the minister of state.” Richard Norton-Taylor clearly felt that the minister bore rather more personal responsibility.
Subsidiarity
The concept of “subsidiarity” was developed by the Catholic Church and taken over by the European Union. For the former, it represents the somewhat conservative doctrine that functions should be delivered at the lowest possible social level. It was deployed in an argument in the early 1950s against ideas of a welfare state subsuming obligations of the family. In EU law, the principle of subsidiarity refers to the need to defer as much as possible to member states over the central institutions of the EU. The phrase is not generally used in relation to the jurisdiction of the European Court of Human Rights (ECtHR); it deploys the similar but slightly different concept of a “margin of appreciation” allowed to nation states in how they interpret the provisions of the European Convention (the Convention).
A consistent attempt, however, is being made by critics of the jurisdiction of the ECtHR to adopt the term as relevant in human rights. So it is that the Commission on a Bill of Rights established by the coalition government talks of “subsidiarity” in its advice to Kenneth Clarke on the future development of the court. Despite this flash of language, the commission, thought to be split down the middle on the desirability of human rights, steers a cautious course.
The commission’s formal letter of advice was, however, somewhat unusually supplemented by another. This floated some ideas on what might be done that were yet to be discussed by the commission. Sir Leigh Lewis, its chairman, was clearly deploying his diplomatic skills at full steam. It is clear that “one of the members of the committee” is hell bent on raising “the democratic legitimacy of the Strasbourg Court”. The letter speculates that this might be done, for example, by allowing a national parliamentary vote to override a decision of the ECtHR. Such a move would make a nonsense of its oversight role. A former permanent secretary is more than capable of reporting the consequences, surely with the faint hint of a purr of disdain: “Those opposed to this concept argue that any possibility of override is fundamentally inconsistent with the rule of law in the Convention system and with the concept of the Convention as a charter of fundamental rights and freedoms.” Quite right. It would be the death of the Convention.
Opt in not opt out
The government announced its response to a proposal from the European Commission to protect the rights of criminal suspects by drawing up rules under which they should receive legal advice during police interview. The Lisbon Treaty gives the UK the right to hold itself apart from the EU’s programme of measures on criminal justice. The UK has decided that it will not opt into the measure, though it has not opted out.
Jonathan Djanogly, parliamentary under secretary at the Ministry of Justice, announced this in Parliament with a speech clearly crafted with care. The UK would not opt in at this stage because it feared that elements of the current draft would cause it problems. There is, for example, currently no allowance for exclusion of the lawyer in terrorism cases. Cynics suggest that the government also wants to maintain the possibility of shifting police station advice to the telephone, not something permitted under the current draft. However, the government does not want to go the whole hog and opt out of the measure. It wants to stay in the discussion and influence the final result. It is also conscious of the irony that, actually, England and Wales has a rather good system of police station legal advice compared with elsewhere in Europe. Thus, it treads its linguistic and political tightrope.
Roger Smith, NLJ columnist & director of Justice. Website: www.justice.org.uk
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