MI5 complicit in torture

Top judge: Binyam Mohamed case shows MI5 to be devious, dishonest and complicit in torture

Legal defeat plunges Security Service into crisis over torture evidence, and it is revealed that judge removed damning verdict after Foreign Office QC's plea

Binyam Mohamed, left, and foreign secretary David Miliband

Binyam Mohamed, left, and foreign secretary David Miliband. Photograph: PA

MI5 faced an unprecedented and damaging crisis tonight after one of the country's most senior judges found that the Security Service had failed to respect human rights, deliberately misled parliament, and had a "culture of suppression" that undermined government assurances about its conduct.

The condemnation, by Lord Neuberger, the master of the rolls, was drafted shortly before the foreign secretary, David Miliband, lost his long legal battle to suppress a seven-paragraph court document showing that MI5 officers were involved in the ill-treatment of a British resident,Binyam Mohamed.

Amid mounting calls for an independent inquiry into the affair, three of the country's most senior judges – Lord Judge, the lord chief justice, Sir Anthony May, president of the Queen's Bench Division, and Lord Neuberger – disclosed evidence of MI5's complicity in Mohamed'storture and unlawful interrogation by the US.

So severe were Neuberger's criticisms of MI5 that the government's leading lawyer in the case, Jonathan Sumption QC, privately wrote to the court asking him to reconsider his draft judgment before it was handed down.

The judges agreed but Sumption's letter, which refers to Neuberger's original comments, was made public after lawyers for Mohamed and media organisations, including the Guardian, intervened.

They argued that Neuberger had privately agreed with Sumption to remove his fierce criticisms without giving then the chance to contest the move.

In his letter, Sumption warned the judges that the criticism of MI5 would be seen by the public as statements by the court that the agency:

• Did not respect human rights.

• Had not renounced participation in "coercive interrogation" techniques.

• Deliberately misled MPs and peers on the intelligence and security committee, who are supposed to scrutinise its work.

• Had a "culture of suppression" in its dealings with Miliband and the court.

Sumption described Neuberger's observations in his draft judgment as "an exceptionally damaging criticism of the good faith of the Security Service as a whole".

His letter also refers to the MI5 officer known as Witness B, who is understood to have interrogated Binyam Mohamed in Pakistan in 2002. Witness B gave evidence in the hearings and is now at the centre of a Scotland Yard investigation. Sumption's letter implies that Neuberger did not believe that Witness B was acting alone and that the judge believed that Witness B's conduct was "characteristic of the service as a whole".

The court's final ruling forced the Foreign Office to publish a seven-paragraph summary of 42 classified CIA documents that were handed to MI5 before Witness B travelled to Pakistan to interrogate Mohamed. These show that MI5 was aware that Mohamed was being continuously deprived of sleep, threatened with rendition and subjected to previous interrogations that were causing him "significant mental stress and suffering". If administered in the UK, the summary says, it would clearly be in breach of undertakings about interrogation techniques made by the British government in 1972.

The three judges referred to a recent case in a US court where the judge found Mohamed's claims about how he was tortured to be truthful. This vindicated his assertion that "UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of the USA authorities".

There were renewed calls tonightfor an inquiry into MI5's involvement in torture overseas and into government policies after the 9/11 attacks.

Miliband told MPs that the ruling was leading to a "great deal of concern" in the US. In a statement to the Commons he said he had fought to prevent the release of the information to defend the "fundamental" principle that intelligence shared with the UK would be protected.

The Foreign Office claimed tonightthat the criticisms in the draft judgment had been "unsubstantiated", and denied that Sumption's approach to the court had been intended to suppress criticism of MI5. Nevertheless, the court is to convene tomorrow to reconsider whether to publish all or parts of the 21-line paragraph from the draft judgment in which the criticisms appear.

The editor of the Guardian, Alan Rusbridger, wrote to the court after the Sumption letter came to light on Monday night. He said today: "It is good news that – after a challenge from the Guardian and other news organisations – the courts have finally ordered the government to reveal evidence of MI5 complicity in torture. This is a watershed in open justice in an area in which it is notoriously difficult to shine a light. But it was extremely disturbing that the government's lawyers made a successful last-ditch attempt to get the master of the rolls to rewrite his judgment."

Richard Norton-Taylor and Ian Cobain

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David Miliband statement (1) David Miliband statement on Binyam Mohamed torture evidence ruling - as it happened

• Miliband says court ruling in Binyam Mohamed case causing "a great deal of concern" in the US
• Rules out public inquiry
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1.19pm: That's it. The full text of Miliband's statement should go up on the Foreign Office website at some point, but it isn't there yet.

In the meantime, here are the main points from his statment.

• Miliband ruled out a public inquiry into the Binyam Mohamed affair.

• He said today's court ruling was causing "a great deal of concern" in the US.

• He said the government did not try to have part of the court of appeal judgment "redacted".

• He welcomed the decision that the court has upheld the "control principle".

1.15pm: Paul Flynn, Labour, asks Miliband to pursue a "fully independent" foreign policy, as the UK did at the time of the Vietnam war.

Miliband says British foreign policy is independent. But that does not mean the government does not cooperate with other countries, like the US.

1.14pm: Henry Bellingham, Conservative, asks about Mohamed's immigration status.

Miliband says the government decided to allow Mohamed to return to the UK even though he is not a citizen because it supported the closure of Guantanamo Bay.

1.13pm: In response to question from Jeremy Corbyn, Miliband says it is clear that the present US adminstration is opposed to torture.

1.10pm: Andrew Tyrie, Conservative, says the UK appears to have allowed itself to become complicit in torture. Will Miliband back a judge-led inquiry? David Cameron and Nick Clegg are both in favour.

Miliband questions whether Cameron is in favour of an inquiry.

He says the government has not concluded that an inquiry is necessary.

He also says that it is important to disinguish between torture and rendition. Both are reprehensible. But they are not the same thing, he says.

1.09pm: Dari Taylor, Labour, asks about the UK/US relationship.

Miliband says there will be a "taking stock" as a result of today's judgment.

1.07pm: Douglas Hogg, Conservative, asks when the government first found out that Mohamed had been tortured. Who found out? And what steps were taken to stop this?

Miliband says it was "the actions of the government" that got these documents to Mohamed's counsel. The divisional court effectively "congratulated" the governmnet for achieving that.

Miliband says he will write to Hogg with a more detailed answer.

1.07pm: Keith Vaz, the Labour chairman of the home affairs committee, asks Miliband when the police investigation will be over.

Miliband says he cannot give an answer to that question.

1.05pm: Julian Lewis, Conservative, says prisoner abuse is "lethal" to any counter-insurgency campaign. What representations did the UK make to the US when it became known the Americans were using water-boarding?

Miliband says the government did follow these things up with the Americans. He offers to spell this out in a letter to Lewis.

He says the publication of the new guidance - which is expected to take place soon - will be an important moment.

1.04pm: Miliband says, in response to a question from David Winnick, there have "significant changes" since 2002 in the way the security services operate.

1.00pm: David Davis, the former shadow home secretary, asks about the letter that has just been published on the Guardian's website from Jonathan Sumption, the government's lawyer in the case.

Miliband says it is not correct to say that the government sought "redactions". What Sumption tried to do was to challenge one paragraph that Miliband said set out conclusions that went beyond the evidence.

The judges decided, having read the Sumption letter, that Sumption's concerns were "well-founded".

Miliband says Mohamed's counsel has apologised unreservedly for releasing this letter. Sending letters of this kind is normal legal practice, he says.

Miliband also says that the final judgment represents the view of the judges, and not the view of anyone else.

Posted by: Yves | 02/11/2010

David Miliband statement (2) 12.59pm: Diane Abbott, Labour, says people will be surprised to hear Miliband say he has been vindicated by the court decision today.

She says there are still questions to answer about past British involvement in torture.

12.56pm: Miliband says Davey "knows very well" that all relevant papers have been handed to the police.

He says "significant" changes have been made in the guidance issued to the intelligence agencies.

12.53pm: Ed Davey, the Lib Dem foreign affairs spokesman, says the seven paragraphs show the government knew that Americans were using torture.

What did the government do to tell the Americans they disapproved?

Does Miliband know if ministers knew that the Americans were torturing Mohamed? If so, will this information be passed on to the police.

Davey says he accepts that Miliband has acted in good faith.

But he urges Miliband to set up a wide-ranging inquiry.

12.48pm: Miliband is replying to Hague.

Miliband says he thinks Hague was wrong to say that the government could have achieved the same result by getting the Americans to release the document. He says that would not have resulted in a court upholding the "control principle".

He says, again, that it is wrong to say there is no oversight of the security services.

He says it is wrong to say the security services support torture.

And he says it is wrong to suggest that the government covers up torture allegations.

12.44pm: William Hague, the shadow foreign secretary, welcomes the judgment. It upholds the "control principle", as well as the need for openness.

The treatment of Mohamed was not only "morally wrong". It damaged the UK's reputation.

Hague says the government should have asked the Americans for permission to publish the seven paragraphs.

He asks if there are any other allegations of torture that have threatened to undermine the "control principle".

In the light of the Detroit attempted terrorist attack on Christmas Day, is the UK cooperating fully with the US on intelligence matters now?

Are there any other countries threatening to withdraw intelligence cooperation?

Are there any other police investigations into alleged collusion in torture by the intelligence agencies?

Hague finishes by asking for an assurance that lessons have been learnt.

12.37pm: Miliband says the government wanted to maintain the priniciple that it should not have to release intelligence belonging to other countries. He says the court of appeal has upheld this so-called "control principle".

He says the court today ordered the disclosure of the seven paragraphs because their content was in the public domain. If that had not been the case, the court would have upheld the government's case, he says.

Last night he spoke to Hillary Clinton about this case. It has been followed in the US at the "highest levels".

We will work carefully with the US in the weeks ahead to discuss the judgment and its implications.

The treatment of Mohamed goes against fundamental British principles, he says.

Mohamed was subject to sleep deprivation and to threats. This treatment was "not conducted by the UK".

The paragraphs do not contain information about the most serious allegations made by Mohamed, relating to genital mutiliation. Miliband says the Foreign Office does not have evidence to support these claims. They will be decided in court.

The UK firmly opposes torture, Miliband says. It has taken a "leading role to eliminate torture internationally".

He goes on:

We are luck to have the best intelligence agencies in the world.

It is a myth to say the security services operate without oversight, he says. Independent commissioners scrutinise the work of the intelligence agencies. And they are answerable to the courts.

The six judgments in this case, plus a closed judgment, show a "seriousness of purpose" in the legal system.

The government fought the case to protect the "control principle", he says.

11.44am: This morning the court of appeal ordered the government to publish evidence of MI5 complicity in the torture of the British resident Binyam Mohamed.

David Miliband, the foreign secretary, is making a statement about the case in the Commons at 12.30pm. We'll be covering it live.


Posted by: Yves | 02/11/2010

MI5 faces crisis of credibility MI5 faces crisis of credibility as torture denials are discredited

Call for public inquiry after Security Service loses legal battle to suppress court document showing involvement in ill-treatment of British resident Binyam Mohamed

The security service MI5 will have to address searching questions over its credibility following today's judgment and the withering criticisms of the service that emerged in court.

For years the security and intelligence agencies, backed up by the government, have insisted that they have no truck with torture. Jonathan Evans, the head of MI5, stated last October: "I can say quite clearly that the Security Service does not torture people, nor do we collude in torture or solicit others to torture people on our behalf."

In today's judgment, however, the Master of the Rolls, Lord Neuberger, flatly contradicted these assertions.

Instead, MI5 was said to have been suppressing information and providing MPs with misleading evidence. In short, Neuberger doubted that MI5's assurances could be trusted.

William Hague, the shadow foreign secretary, said the dramatic revelations showed there was "an urgent need to draw a line under this episode and restore British moral authority in the matter of allegations of complicity in torture".

He called on ministers "to assure the country that any other credible allegations of British complicity in torture are being fully investigated".

Andrew Tyrie, the chairman of the all party parliamentary group on extraordinary rendition, added: "This court ruling adds to the drip-drip of damaging information on the UK government's involvement in rendition, at great cost to the UK's credibility, to the morale of our security services, and to relations with our allies."

In the past the foreign secretary, David Miliband, has tried to address what security and intelligence officers describe as an acute dilemma.

"It is not possible to eradicate the risk of mistreatment. A judgment needs to be made," Miliband told MPs.

"We cannot act in isolation in order to protect British citizens."

British security and intelligence officials say that in the fight against international terrorism they have no choice but to cooperate with their counterparts in other countries, such as Pakistan or Saudi Arabia.

A grey area exists and in recent years there has been a stream of allegations relating to MI5 knowledge of the ill treatment of detainees in Pakistan, Egypt, Bangladesh, and elsewhere.

But as the Binyam Mohamed case has shown, the US has presented a unique problem, because neither MI5 nor MI6 like arguing with the security and intelligence agencies of Britain's closest ally.

Since September 11 Britain has connived, wittingly or otherwise, in the secret rendition by the CIA of British residents and others. Mohamed was not the only case. Miliband has had to admit that, contrary to earlier assurances, CIA flights carrying terror suspects for secret interrogation had twice landed on the British Indian Ocean territory of Diego Garcia.

Following a number of reports in the media, the cross-party parliamentary intelligence and security committee described in 2007 how MI5 contributed to the seizure of two British residents by the CIA, which secretly flew them to Guantánamo Bay in a move with "serious implications for the intelligence relationship" between Britain and the US.

The Security Service passed information to the Americans on Bisher al-Rawi, an Iraqi, and Jamil el-Banna, from Jordan, as they flew to the Gambia to set up a business there in 2002. Both men had lived in Britain for many years. MI5 alerted the CIA to their trip to Gambia. The CIA ignored MI5's request that they should not be seized.

Both MI5 and MI6 were "slow to appreciate" the post-September 11 change in US policy, the intelligence and security committee said.

Evidence, from the committee's reports and elsewhere, shows that MI5, MI6, and military intelligence officers were not trained properly or advised about Britain's domestic and international obligations in law, including the Geneva conventions.

The government has refused to publish the guidelines distributed to MI5, MI6, and military intelligence officers at the time. It has recently drawn up new guidelines, which it has now passed to the intelligence and security committee.

It is unclear what advice Witness B, the MI5 officer being investigated by the Metropolitan police for "possible criminal wrongdoing" in connection with Mohamed's interrogations in Pakistan, received from other MI5 officers. The high court made it clear in earlier hearings that more officers were involved. Mohamed himself has suggested Witness B is a scapegoat.

The government, meanwhile, says that MI5, MI6 and the police should be able to withhold evidence from defendants and their lawyers in civil cases for the first time. The move was prompted by claims by seven British citizens and residents that they were ill-treated, and in some cases tortured, in Guantánamo Bay with the knowledge of Britain's intelligence agencies.

The government has admitted that British intelligence officers interrogated a Briton at least five times while he was held in leg cuffs at Guantánamo.


Posted by: Yves | 02/11/2010

Torture and the missing paragraph Binyam Mohamed: Torture and the missing paragraph

This is a desperately serious state of affairs, whatever spin the government puts on it


Governments of every type make mistakes, what distinguishes the good from the bad – and the free from the tyrannical – is the facility to learn from them. The legal manoeuvring in the case of Binyam Mohamed which emerged yesterday is thus deeply chilling. The torture of this British resident, who was last year released without charge by the US after years of alleged brutish caging which left him feeling "dead", is fast becoming established fact. The allegations that certain UK agents knew about this are also becoming firmer. But rather than confront these disturbing matters, the government has scrambled to conceal them at every stage – draping the "national security" blanket over American actions, British knowledge and, indeed, over the very motives for wanting to keep everything secret.

The "war on terror" is nowadays consigned to the rhetorical dustbin, but even as the Chilcot inquiry attempts to make retrospective sense of one of its messiest campaigns, the court of appeal has found itself called to active service on another of its gory fronts. While retired Foreign Office lawyers queue up to tell Chilcot that their advice on Iraq was ignored, their hardline successors have pushed their attempts to suppress the truth about torture all the way to the final judgment – and beyond.

Still in some sense his master's apprentice, the foreign secretary, David Miliband, yesterday turned in a Commons performance of such audacity that Tony Blair himself would have been proud. No matter that he had just been forced to release the previously censored views of a lower court that the UK knew that the Americans were stressing, shackling and subjugating Mr Mohamed in a manner that "would clearly have been in breach of the [anti-torture] undertakings given by the United Kingdom", Mr Miliband carried on as if he had won some form of victory – simply because the judges had given a nod to some familiar principles which govern the handling of intelligence. He claimed quite definitively that without recent American rulings the decision would have gone the other way. And in a truly Tonyesque twist he defied his accusers by proclaiming his innocence of a sin with which he was not charged, shrugging off the blame for keeping the public in the dark by pointing out that he had never attempted to restrict the information available for Mr Mohamed's defence.

After the country's top three appeal justices had circulated their views among interested parties – a custom designed to allow for the correcting of minor inaccuracies – the government's barrister launched an unusual bid to erase the most damning passage. He succeeded, too, although his victory was pyrrhic thanks to the leaking of his letter which – helpfully to the public, although not to his client – provides a singularly acute precis of exactly what he wanted struck out and why. The court was effectively about to rule, Mr Sumption revealed, that MI5 had treated basic rights with contempt and had lied to the parliamentary watchdog which provides its only oversight. In Mr Sumption's summary, a senior judge had initially found that there was such a "culture of suppression" within MI5 that it undermined any government assurances on its behalf.

This devastating verdict upon a secret intelligence agency – contained in the original paragraph 168 of the Master of the Rolls's judgment – was drastically watered down in the published judgment, though Lord Neuberger later admitted he may have been "over hasty" in submitting to Mr Sumption's critique of his original words. The court should now agree to the publication of the original paragraph so that the public can judge the three versions of it now in circulation. Parliament cannot claim to exercise effective oversight of MI5 if (as one of our most senior judges apparently believed) it has been "deliberately misled". This is a desperately serious state of affairs, whatever spin Mr Miliband puts on it.

The Guardian, Thursday 11 February 2010

Posted by: Yves | 02/11/2010

Legal principle was broken by the government How 400 years of legal history were cast aside in the Binyam Mohamed case

Legal principle established in 1637 banned secret talks between lawyers and courts. It was broken by the government

When the master of the rolls, Lord Neuberger, decided to retract paragraph 168 from his draft judgment in the case of Binyam Mohamed, he relied on almost 400 years of jurisprudence to assume that the parties in the case had agreed to its removal.

The case of Ship Money, brought by Oliver Cromwell's cousin John Hampden in 1637, established the principle that there should be no secret communication between lawyers and the courts in legal proceedings.

Representations from one side – in this case, the foreign secretary's barrister, Jonathan Sumption QC – should be copied to all other parties in the case, so that they have the opportunity to respond.

On that basis, when Neuberger received a letter from Sumption requesting removal of the paragraph from the court of appeal draft judgment, lawyers say he must have thought he was acting with the agreement of all parties.

Neuberger removed the paragraph from the final judgment, watering down the court's condemnation of the security services, described by Sumption as containing "exceptionally damaging criticism".

"The master of the rolls' observations … will be read as statements by the court that the security service does not in fact operate a culture that respects human rights or abjures participation in coercive interrogation techniques," says Sumption's letter, now published in full on the Guardian's website.

But other parties in the case were not consulted and are furious.

"In all the years – I was first a government lawyer and then a liberty lawyer – I have never known the draft judgment process abused in this way," said Shami Chakrabarti, director of Liberty, the human rights organisation which was a party to the case. "The purpose of using drafts is for typographical and factual corrections – minor matters such as names and dates.

"It is not to allow one party to re-run substantive arguments and tempt a court to tone down or change its judgments."

She added: "I can't believe that the Foreign Office thought they could get away with this. It shows the kind of contempt for the law that this case has always been about."

"This is anti-constitutional behaviour of the most disquieting kind," said Mark Stephens, who represented a group of American newspapers in the case and was not informed of Sumption's letter to the court until yesterday, when the judgment had already been changed. "In my experience of 31 years practising as a lawyer, it is unprecedented.

"This conduct has embarrassed Lord Neuberger who clearly assumed that he had received all submissions when he reached his decision to remove the judgment."

In a remarkable series of events, Neuberger has admitted he may have been "over-hasty" to remove the findings, after the Guardian, as well as Liberty and Justice, challenged the exclusion.

"I think it was over-hasty to amend that written request of one party, without giving other parties the opportunity to reply," said Neuberger.

Answering questions in the Commons today, the foreign secretary, David Miliband, defended the attempt to have the paragraph removed from the judgment.

"What our counsel did, once he had been provided with copy of the judgment in draft, was to express real concern that one paragraph set out conclusions that went beyond the evidence concluded and risked causing prejudice to a criminal investigation," said Miliband. "Our counsel took the view that this should be brought to the attention of judges in case."

Miliband came under fire from MPs for the conduct of the Foreign Office, for attempting to have the paragraph retracted, and for the court's findings that seven paragraphs kept secret from an earlier Binyam Mohamed judgment should also be kept secret.

The paragraphs, which have now been released, were redacted after Milliband said their publication would damage the government's intelligence-sharing relationship with the US administration.

"Publication of the redacted paragraphs would not reveal information which would be of interest to a terrorist or criminal or provide any potential material of value to a terrorist or a criminal," said Lord Chief Justice Lord Judge in today's judgment. "It increasingly appears that the issue is the control principle rather than the confidentiality of any information within the redacted paragraphs themselves."

"This whole case was one about openness, and attempts by the government to cover-up torture instead of exposing it," said Chakrabarti. "The fact that even at the court door, before the ink has even dried on the court of appeal's judgment, the government has had yet another go at a cover-up is truly remarkable."

Afua Hirsch, legal affairs correspondent
guardian.co.uk, Wednesday 10 February 2010

Posted by: Yves | 02/11/2010

Suppression of torture revelations above citizens' welfare Binyam Mohamed: a shameful cover-up

The court of appeal has highlighted the way our Leaders have placed the suppression of torture revelations above citizens' welfare

In a scathing judgment running to 84 pages, the court of appeal has slapped the government down in the case of Binyam Mohamed. As many will recall, Mohamed was seized by the Pakistanis in April 2002, turned over to the Americans for a $5,000 bounty, abused for three months, rendered to Morocco, tortured with razor blades to the genitals, rendered on to the "Dark Prison" in Kabul, tortured some more, and then held for five years without charge or trial in Bagram air force base and Guantánamo Bay. The verdict of the court – comprised of three of the country's most senior judges – underlines the shameful way in which, in this case and beyond, our political leaders have placed their desire to suppress embarrassing revelations above the welfare of citizens.

Clive Stafford Smith: 'The government is still trying to suppress evidence' Link to this audio
With Mohamed's torture established as a judicial fact, the judges queried what reason there could be to cover up the now-notorious "seven paragraphs"? This summary was removed from the original opinion when the government cried national security. The material is important – it adds direct evidence that the Americans wrote down their torture tactics, and that a British agent knew Mohamed was being abused before he flew to Pakistan to join the interrogation – but represents only a few crumbs of the overall criminal enterprise.

Yet two years into the litigation, the foreign secretary, David Miliband, still argued that a court would be "irresponsible" to reveal the material – strong language when aimed by the diplomatic service at the judicial branch.

"No advantage is achieved by bandying deprecatory epithets," the judges replied, before passing out a few polite insults themselves. The foreign secretary's intransigence was "irrational" and lacking in "commonsense". With the original high court judges, that makes five independent members of the judiciary against one US-dependent politician.

So what is truly at stake? At its most significant level, the decision focused on a legacy of the "war on terror" that is more bitter even than abusing prisoners: the conflation of national security with political embarrassment. The fact of torture is horrific; but the concerted effort of British and American officials to cover up the torturers' crimes is far more insidious. How can we learn from history, and avoid repeating mistakes, if we do not know what that history is?

This is a high-profile example of a national disease. Because we fear for our safety and cherish our privacy, politicians argue that we will lose both if we do not sacrifice our right to free speech, our "right to know". We should, in other words, simply trust them.

This is the path that British politicians have been treading all too frequently. Nobody would have known that three Labour MPs committed expense fraud, or that scores of others spent money on the ethical equivalent of a duck pond, if we were only allowed to see the redacted version of the MPs expenses. The claim in that case was "privacy".

The seven paragraphs should rate little more than a footnote in the full story, yet that is a tale that remains untold. The court tells us that a "vast body" of government reports about Mohamed's abuse remain secret. I was in Washington last week reviewing a similarly "vast body" of evidence indicating British complicity in the abuse of another Guantánamo prisoner, Shaker Aamer. Not a word of that has been revealed, again on grounds of national security.

Since I am not as temperate as a judge, I would not characterise the arguments made by Miliband as "irrational": after beginning with the term "foolish," I fear I would descend to epithets unfit to publish here . Suppressing any evidence of government criminality on grounds of national security sets a very dangerous precedent. As the saying goes, those who would sacrifice their freedoms to ensure their safety deserve neither – and can expect to lose both.

Clive Stafford Smith
guardian.co.uk, Wednesday 10 February 2010

Posted by: Yves | 02/11/2010

Hating the human rights act Hating the human rights act – an English phenomenon

Westminster has no right to change the constitutional settlement in other parts of the UK, simply to appease human rights critics in England

What does it mean to be British? It depends, of course, which part of the United Kingdom you are in when you answer that question. The English stand accused of taking their own sense of identity and list of priorities, and projecting them across the entire UK. The press are number one culprits, said to ignore Scotland and Northern Ireland, unless there is a flare-up in sectarian violence or a significant step towards further devolution. I know how much this angers readers because they write and complain about it.

This almost pales in significance, however, next to the implications of today's Justice report, which shows that politicians in Westminster may have not only ignored the sentiments of communities outside England, but even designed constitutional changes that would directly affect them to appease political sentiments in England.

The problem stems from the fact that, in England, the Human Rights act is unloved. There is a view – largely based on misunderstanding, in my opinion, but I'm a lawyer so I'm told I don't count that the human rights act is a villain's charter. It is accused of protecting criminals and thugs, and all the while failing to protect the law-abiding public from more important developments, like the spread of surveillance.

This is not the view in Northern Ireland. As is so often the case in societies where violations of civil and political rights are a recent reality, there is a dynamism around human rights there that is almost unrecognisable from England. The question in Northern Ireland is not whether human rights protections should be repealed, suspended, or "left on people's doorsteps." but how much much further they should go, and whether the law should protect the right to housing, work and education – socio-economic rights that are barely even discussed in Great Britain.

Northern Ireland was promised its own Bill of Rights, to reflect its "particular circumstances", in the Good Friday Agreement. The resulting consultation is an exercise England could learn from, with thousands of responses and a wide range of views genuinely reflected. Despite obvious divisions, there is evidence that 83% of people in both Protestant and Catholic communities support Northern Ireland's quest for its own Bill of Rights.

Instead the Northern Ireland Office stands accused of offering people in Northern Ireland a "pale shadow" of that. Human Rights Groups say that they are "dismayed" with the government's response, and that any attempt to link Northern Ireland's Bill of Rights with the development of a new "British Bill" would be nothing less than a breach of an international peace treaty.

Meanwhile the Conservatives, who are threatening to repeal the Human Rights Act altogether, are on even more questionable territory. "We continue to have primarily legislative responsibility for Northern Ireland," shadow justice secretary Dominic Grieve told me on Friday. "We have indicated that one way forward for the Northern Ireland Bill of Rights is that it could be a discrete section in the UK Bill of Rights."

What many Westminster politicians seem yet to grasp is that it is not just the content of a new Bill of Rights that is aggravating people outside England, it is the motive that drives it. The motive is English – a discontentment with human rights that is not shared elsewhere.

In Scotland, where to be fair politicians are less than enamored with the human rights act – not least since a ruling that requiring prisoners to slop out their own waste was a violation of the right against degrading treatment – they are neverhtless happy to keep it.

"In terms of a British Bill of Rights, do we see it as necessary? No." said SNP Justice Minister Kenny MacAskill. "Here in the Scottish Parliament we have the Human Rights Act and ECHR incorporated into our founding principles… We are happy with that."

MacAskill is one of many politicians who has showed that there is a different approach to human rights in the devolved legislatures. Even if their approach could be bypassed by Westminster – which is a big 'if' – the Scottish and Northern Irish governments have a different approach to the individual rights, too.

"I read Henry Porter's evidence [to the Joint Committee on Human Rights]," MacAskill continued, "it concentrates on the Magna Carta and the Act of 1689. None of these matters is of any great relevance to Scotland. We have a distinctive legal system that predates the Act of Union."

It's hard to avoid the suspicion that the radically different legal tradition in Scotland is just not something proponents of a British Bill of Rights even thought about. But the problem is bigger than that - it's not just about what rights go where, or even whether it matters that the Tories could take the UK down a path where there is a human rights lottery, depending on which country you live in.

It is also about what binds the UK together. Not a question I would even attempt to answer, but if I were trying to radically change the constitution, I would certainly have given it some serious thought.

Posted by: Yves | 02/11/2010

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