This morning the House of Lords has ruled in favour of the Government of
Saudi Arabia
Four men were arrested in Saudi Arabia 6 years ago following a spate of
terrorist bombings, detained and, they allege, tortured to induce them to
confess to planting the bombs on behalf of MI6.  They were released, returned
home and sued for damages.  The detainees had won in the Court of Appeal in
December 2004, but the Saudis appealed, with the support of the British
Government – er, apparently turning on its own "spies". 
Wearing my cynical lawyer’s hat, and ignoring the suffering of the four
people involved, this case raises a number of delightful legal quibbles without
an immediately obvious answer (English translation: fee-earning opportunities). 
Does the Human Rights Act 1998 overrule the State Immunity Act 1978?  Yes, say
traditionalists who uphold that one parliament cannot bind its successors (so
that the later Act must take priority in a clash).  No, say traditionalists who
point to the fact that courts do not act in a way which demeans the jurisdiction
of another state.  Yes, say civil libertarians who believe that human rights are
so fundamental that they trump all other values.  No, say ….  you get the

On the other hand: why is it right to sue Saudi Arabia for having a nasty
police force, but wrong to knuckle under to the European Convention on Human
Rights?  And what about Guantanamo? 
A defence can be mounted for the Guantanamo Bay detention centre as an
innovative response to taking prisoners in a war where the enemy isn’t a
sovereign state: as it were, a reversion to a "common law" pre-dating the
various Hague and Geneva Conventions.  It’s, well, it’s an "anomaly": the sort
of result you get when you let American lawyers run things.  You either agree
with this (and the implicit suggestion that international treaty law is lagging
behind the problems of modern international relations) or you don’t.
The ECHR for British Conservatives is trickier: of course
we agree that countries should abide by a minimum standard of decency, it’s just
that we resent the suggestion – from a bunch of foreigners – that
Britain doesn’t.  Here the response would be the direct opposite to Guantanamo:
modern thinking in the "human rights community" has moved ahead of the
underlying treaty to interpret it in ways never really intended when the ECHR
was signed.
One would not have thought Margaret Beckett is exactly King Abdullah’s cup
of tea and vice versa – but this should be seen as a case of comity: the UK
being more or less forced to respect the sovereign integrity of a foreign
country.  That at least is the line the Department for Constitutional Affairs is
taking, and they’re probably right, legally and pragmatically.  If the UK
conceded the point, the next thing we’ll have is a host of writs against the
Queen over obscure incidents in colonial history.  The four men involved have,
unfortunately, fallen on the wrong side of diplomacy.
I wonder why the Saudis thought they could get away with torturing four
Britons?  Still, let’s hope they buy a few extra airplanes to make up for it.

William Norton

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