A curious distinction...

Amnesty International has today released a pretty damning report on the UK Government's anti-terrorism legislation, claiming that its implementation has given rise to serious human rights violations", or, in the case of such measures as the introduction of a crime of "indirectly inciting terrorism", is likely to do so in the future. In one other memorable formulation, the report criticises the UK's "Kafkaesque" practice of locking up terror suspects, for years at a time and without trial, on the basis of "secret evidence". The invocation of Kafka's work here is hardly hyperbolic.

A brief summary of the report is available on Amnesty's website. The report itself is quite lengthy, but will undoubtedly make for uncomfortable reading for Blair and co. It does not, however, seem to raise any objections that will shock those who have been following the debates on, for example, the proposed introduction of a crime of "glorifying terrorism" or the Government's practice of seeking guarantees from certain States that returnees will not be subjected to torture on their return (I should add that this impression is based upon the summary of the report in the Amnesty press release and in various UK papers today; I have not read the full report).

What is important, however, as demonstrated by the media coverage that this release is getting today, is the fact that a major and respected human rights NGO such as Amnesty is saying it, and saying it all at once in an official report. This is further indicated by the Government's somewhat odd response, introducing the curious distinction of the title of this post. Lord Falconer, the Lord Chancellor, has argued that, in theory, human rights law allows a high degree of latitude for the adoption of weaker or stronger stances on "security" issues. He went on to argue:

What Amnesty is doing is, in practice, disagreeing with us on whether or not the laws are too tough. But they should not suggest that we are breaking human rights principles because we are always complying with human rights principles. It is unfortunate that an organisation of Amnesty's standard is, in effect, attacking our values when what they are really doing is saying that you are being too tough in relation to the stances you are taking within human rights law.

This argument, that Amnesty are disagreeing with the Government over how human rights should be applied (how tough we should be on terrorists within the framework of human rights law), is a baffling and deeply disingeneous mix of non-sequitor, diversion and naked assertion. No-one denies that human rights obligations can be interpreted in more or less stringent fashions: it is a mammoth (and quite unfounded) leap of logic to suggest that, on this basis, this is all that Amnesty is disagreeing over. Words and phrases such as "in practice", "in effect" and "really" are designed to divert our attention away from the plain meaning of Amnesty's critique, and to reinscribe it within the discourse preferred by Lord Falconer; while his assertion that "they should not suggest that we are breaking human rights principles because we are always complying with human rights principles" is a pretty much perfect example of how to beg a question. To be clear: regardless of the merit of Amnesty's claims, they are not quibbling with the government over the toughness of its stance within the limits set by human rights obligations; they are alleging that Government policy has directly led in the past, and will lead in the future, to trangressions of those limits, violations of those rights.

Lastly it is worth noting Lord Falconer's claim that the fact that the Government has "sought to stay within" the ECHR is proof that their values haven't changed is also more than a little suspect. Firstly, it is interesting to note his invocation of "values", which, in a manner similar to his use of the phrase "human rights principles" above, seems almost suspiciously keen to avoid the talk of hard, pspecific legal obligations. Secondly, mention of the "fact" that they have "sought" to remain within the framework of the ECHR does nto neccesarily mean that they have succeded (although it does seek to have us believe that any transgressions were an unfortunate error, not a result of any human rights mala fides). Lastly, and relatedly, few if any of the practices that Amnesty complained of have been tested before the European Court, and many claims under the Human Rights Act can be expected before the UK courts in the near future. That a finding of violation will not derail the Government has been made clear by Tony Blair, in a quote used by Amnesty to begin its report:

Should legal obstacles arise we will legislate further, including, if necessary, ammending the Human Rights Act in respect of the interpretation of the European Convention on Human Rights.

Falconer's use of the ECHR to deflect the allegations levelled by Amnesty in its report may, thus, come back to haunt him...