Torture and England do not mix well. Uniquely in medieval Europe, English common law forbade the extraction of confessions with torture. While poor women from Scotland to Sicily were put on the rack and forced to agree that they were the agents of the devil, English women escaped the European witch craze relatively unscathed. The one exception to the benign rule was the 17th-century Court of Star Chamber, which was allowed to torture the king's enemies. Its barbaric practices were one cause of the civil war. Such was the hatred it aroused that "Star Chamber justice" remained a contemptuous condemnation of arbitrary power from the 17th to the end of the 20th century.
Today, we can no longer enjoy the same sense of national pride, reassuring ourselves that the Star Chamber years were anomalous. The honourable tradition was wiped out on 11 August 2004, when a majority of the judges sitting at the Court of Appeal took us back to the 1630s and declared that evidence forced out of suspects by torturers could once again be considered by English courts. Human rights groups say that the current deliberations of the law lords on whether to uphold the Court of Appeal's decision is the most important case in a generation. They are not exaggerating. What is at stake is whether the "war against terror" can justify an assault on the basic freedoms of this country.
The appeal has been brought by lawyers representing the foreign nationals interned indefinitely without charge or trial after 11 September 2001 in Belmarsh and other high-security prisons. They suspect that some of the evidence against the men was passed to MI5 by foreign intelligence services that employ torturers. The lawyers cannot be sure what evidence is being used, because neither they nor their clients are permitted to know what the detainees are meant to have done.
In the Court of Appeal, Lord Justice Laws listened to their protestations and shrugged his shoulders. Although it was wrong in principle for British courts to consider evidence obtained by torture in Britain, he was "quite unable to see that any such principle prohibits the [Home Secretary] from relying . . . on evidence coming into his hands which has been obtained through torture by agencies of other states . . . If he has neither procured the torture nor connived at it, he has not offended the constitutional principle."
This is the type of casuistry that brings lawyers into disrepute. International law holds that any act of torture is illegal. It does not matter if it takes place in Guantanamo Bay, some fly-blown jail in a developing country, or at Paddington Green Police Station. Torture is impermissible, and that should be an end of the matter. If the law lords don't uphold basic principles, Britain will be in an absurd position. If it is considered acceptable by the judiciary for evidence obtained by torturers in foreign countries to be used to intern suspects in Belmarsh, why should the British security services be constrained? Why should they not torture and present to the courts whatever confessions they extract?
The evident dangers in the case before the Lords appear to have eluded the Home Office and the Court of Appeal. The arguments against torture are practical as well as ethical. The history of resistance to totalitarianism in the 20th century shows that the cliche "Everyone talks" is not always true. Brave men and women have gone to their deaths without blabbing. But most people break, and when they talk, they say what their interrogators want to hear. They agree with their tormenters' suggestions, implicate the innocent and confess to many things to stop the pain.
Such evidence is worthless, but that it should sneak back into the British legal system alongside the shabby tactic of internment should not surprise us. So far, only foreign nationals can be detained indefinitely, but David Blunkett has hinted strongly that he would imprison British citizens without trial if there were a terrorist attack on Britain.
The position of the Belmarsh detainees is not the same as that of the inmates of Guantanamo. They are free to leave if they can find a foreign country that will take them, and several have done so. This proviso sounds generous, but it has made nonsense of the law. If the government is certain that these men are international terrorists, why has it released them? If they are terrorists, surely they are now free to plan attacks now that they are out. If they were not terrorists, what were they doing in prison in the first place?
Ministers say that their critics are not facing up to the cataclysmic possibilities of an Islamist attack. There is some truth in this, but the government is undermining its own case. Suspects can already be charged with the vast number of terrorist offences on the statute book and tried in open court, with no need for secret hearings that undermine justice. The government's descent into authoritarianism is as counterproductive as it is unprincipled. The "war against terror" is a battle of ideas as well as a military struggle. Every time that the United States or a European country takes short cuts, it plays into the hands of those in the Muslim world who say that western talk of democracy and human rights is a sham.
In his dissenting judgement, Lord Justice Neuberger of the Court of Appeal said: "By using torture or even by adopting the fruits of torture, a democratic state is weakening its case against terrorists, by adopting their methods, thereby losing the moral high ground an open democratic society enjoys."
He is right. The interests of national security are best served by the law lords following Lord Neuberger and ignoring the torturers' friends in the judiciary. It is in their hands to save the British state from itself.