A very un-English practice

New Statesman, 4 November 2005

We always see the past through the lens of the present, and it was perhaps inevitable that historians would compare the Roman Catholic conspirators who nearly decapitated England’s government 400-years ago with al-Qaeda. For all the dangers of twisting history, it’s not a bad cliche.

The 17th century feels near to us. Then, as now, religion as much as class or the struggle for constitutional rights moved men and women. Robert Catesby, Guy Fawkes and the young men they led to early deaths didn’t see themselves as common assassins but as holy warriors on a crusade against a corrupt world. The blades of their swords carried the legend, “The Passion of Christ”. They, too, dreamed of a kind of Caliphate: they wanted their spectacular to lead to the return of the universal jurisdiction of the Holy Mother Church to England. They, too, presumed to believe that they were the defenders of their persecuted co-religionists rather than a cause of persecution. Their idea of earthly paradise was as archaic as the Islamists’: the golden age of sacred law and natural order before the Reformation.

And then, as now, there was talk of torture – more than talk in the case of the Gunpowder Plotters. When Fawkes was taken, James I said that “the gentler tortures” should be used first, and he was hung by manacles from the walls of the Tower. In her history of the plot, Antonia Fraser says it is impossible to discover if his captors then tied him to the rack, although reports of his smashed body suggest they did. In any event, Fawkes broke under the pain, as most do, and betrayed his associates. “He beginneth to speak English,” said a satisfied Sir Edward Hoby.

The usual thing to say at this point is how far we have moved on in four centuries. Certainly, the hanging, drawing and quartering the plotters endured has gone, and after 7/7 Muslims didn’t suffer a repetition of the anti-Catholic persecution that followed 11/5. In the case of torture, however, we do an injustice to our predecessors when we pretend we are their superiors.

As E P Thompson was fond of observing, England is an odd country, and one of the peculiarities of the English is our abhorrence of torture. Judicial torture came to medieval Europe in the 11th century when the church discovered that the Romans had allowed it. So well-established did it become that great European minds found the idea of respecting the sanctity of suspects’ bodies ridiculous. An exasperated Jean Bodin, “the Aristotle of the 16th century”, dismissed the notion that women suspected of witchcraft should not be tormented. “Proof of such evil is so obscure and difficult that not one out of a million witches would be accused or punished if regular legal procedures were followed,” he ruled in 1580.

Scotland, France and all the countries of western Europe allowed torture, except England, which ignored the Romans and stuck with the Anglo-Saxon common law. Sir Edward Coke, Bodin’s English contemporary, was adamant that “there is no warrant to torture in this land”. He meant in the common law courts. It could be authorised by the monarch or the privy council, and practised under the royal prerogative by the Court of Star Chamber. James I had to sanction the torturing of Guy Fawkes personally. If his interrogators did put him on the rack, they would have done so in the Tower, which held the only rack in England.

So alien was the Star Chamber that its abuses were a cause of the English Civil War. The folk memory of the loathing it aroused survives to this day. If you denounce an arbitrary tribunal as “Star Chamber justice”, at least part of your audience will know what you mean.

In the light of English tradition, the government’s claim that the law lords should allow it to use evidence that foreign torturers may have collected appears outrageous. It is as much an offence to the enlightened opinion of the 17th century as the 21st, and the Lords should throw it out.

Cases do not get to the House of Lords because they’re simple, however. If the Lords go against the government, all evidence from, say, Egypt will be inadmissible because the Egyptians may have used torture. The result will be a paradoxical inversion. The authorities will be able to deport a harmless Egyptian cabbie who came to Britain as an economic migrant, for breaking immigration rules. But they won’t be able to send back a member of Egyptian Islamic Jihad as he “may” be tortured on return. If there is evidence from Egypt that he is plotting an attack on the Underground, they won’t be able to use that against him either because it “may” have been collected by torture. In other words, the greater the alleged threat a foreign suspect poses to the country, the harder it will be to deal with him.

In the long run, the way to resolve the paradox is for the EU to do what it does best and use its economic muscle to force humanitarian reform. Egypt, Jordan, Algeria, Morocco and the rest must be told that if they want to trade on advantageous terms, they must meet basic standards.

But by then some of us may be dead. The police and intelligence services say they’re getting frighteningly few leads. What to do about the holy warriors who would once again blow up the Houses of Parliament is the most difficult question of our times. Every possible answer is grim. If we allow the evidence, we will sanction torture, however indirectly, and have blood on our hands. If we don’t, we may let bombers escape and have blood on our hands. Maybe our own blood.

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