The British government should not participate in legal torture

The British government should not participate in legal torture

Andrew Lilico

I write that headline. I look at it. It doesn't seem like it should be controversial. Indeed, if I have written such a headline twenty-five years ago, readers would probably have expected the body of the article to contain some terrible revelation about police malpractice in Northern Ireland. And yet, as a strange and disturbing reflection of our age, I am not not merely in a minority amongst the general population (who, I presume, would always have been happy enough to see some rapists, child murderers, terrorists and others tortured) but, oddly, even amongst the chattering classes. Indeed, in such a minority that my view would be regarded as not merely wrong and extreme, but bordering on the unacceptable.

I do not believe that the British government should torture people itself or participate in their torture by others. So, that means torture should not be legal, evidence obtained under torture should not be admissible as evidence in a trial, we should not deport people to countries where they themselves will be tortured, and we should not deport people to countries where others will be tortured into giving evidence against them.

I do not believe this on the basis of Britain having signed up to any convention and as such feeling obliged to play by the rules as a team player now we've signed. I would oppose the British government participating in legal torture even were we signed up to no international conventions touching on torture at all. Neither do I believe this on the basis that I contend there is any "right" not to be tortured - I don't believe in human rights at all.

Indeed, I firmly believe that we are only having our current debate about when it's okay to torture people precisely because people have signed up to the authoritarian and illiberal doctrine termed "human rights". Under any rights-based system the government contends that it creates rights - e.g. the right not to be tortured. Well, if the government creates such rights then it can take those rights away or modify them. So, since the British government asserted itself the creator of the right not to be tortured, with the Human Rights Act 1998, it now regards modifying the right not to be tortured as within its power.

I, on the other hand, am not a supporter of the sort of state wherein governments create rights. Instead, I prefer states in which we begin with freedom over ourselves - we are free by nature, and thus free logically prior to the emergence of any state to grant us rights - and the state curtails our freedoms in various useful ways. I do not have an abstract right not to be tortured; I am simply entitled to go about my businesses without interference and under the state's guarantee of my person and property unless and until I break some law that entitles the state to interfere with me, and then we specify the nature and limits on the state's interference with me - whether it is allowed to imprison me, or subject me to rehabilitation / brain-washing, or beat me with a whip, or hang me. I am free from being tortured by the state not because I have any right not to be tortured but simply because no law has been enacted entitling the state to torture me - and under classical-modern interpretations of Common Law no such law could be enacted; the queen's judges would not deploy or accept it and it wouldn't be a "law".

The government should not torture or participate in torture. If a foreign government requests we send back someone it is hunting, and we believe it intends to torture that person, then if we send the person back our government is participating in torture. It is complicit; it is involved; it cannot claim to be absolved of responsibility; it was a cog in the mechanism that led to that torture. Similarly, if we believe that government might not torture the person it hunts, but would instead torture someone else (say, some witness) to obtain evidence against the person it is hunting, then again if our government sends the hunted person back it is participating in the torture of the witness.

My objection to torture is not contingent upon whether I like, admire, hate or despise the person tortured. Few people, if any, would be content to torture people they liked and admired. Almost by definition, someone that we might be tempted to torture will be someone we believe unpleasant and dangerous. So when one comes to any specific case, it will always be tempting to abandon the general principle - claiming that the specific circumstances mean "this time it's different"; that it would be helpful, perhaps, to pass some special law to allow the participation in torture in just this case. But we either accept that we should not torture even unpleasant and dangerous people or we deny that torture is illegitimate.

Which is it?

Comment: I agree with most of this article, save for "I don't believe in human rights at all" and "authoritarian and illiberal doctrine termed "human rights"". I do believe in human rights and do not accept that the ECHR is authoritarian nor based upon an illiberal doctrine. Perhaps the headline should read The British government should not participate in illegal torture?