I understand the dismay and frustration on the part of those who have argued that Pinochet must be punished for his crimes. It is tempting to claim that the cause of bringing an evil man to account should be more important than the detail of whether a judge was, or could be seen to be, unduly influenced by his connections to Amnesty. That instinct is wrong because it undermines the very values on which a civilised state is based. Without consistency and transparency, the law loses its authority. Democracies elevate themselves above dictatorships by observing sound procedure, even when it would be simpler to cut corners.
Even before Hoffmann's lapse, the case had taken us into uncharted territory. The 3-2 decision by the Law Lords to overturn the High Court's ruling that Pinochet did enjoy immunity from prosecution as a former head of state represented a major change in the way that judicial rulings are made. The panel did not apply existing law, as the High Court had done when it ruled early that the General did enjoy immunity. They decreed - by a margin of one vote (Lord Hoffmann's) - to remake the law as they thought it should be.
The Supreme Court in America works in this way, as do continental systems: judge-made law there, rather than the application of precedent does, however, demand that those who sit in high judgment must be beyond suspicion of bias. Now that the European Convention on Human Rights has been incorporated into British law, the Law Lords have an enlarged role thrust upon them for which they seem wholly unprepared.
Currently, this elect 12 inhabit one of the dustier corners of the British constitution. We know nothing of them, beyond what they deign to tell us in Who's Who of their fondness for gardening and opera. They are appointed on the patronage of the Lord Chancellor, who gives no reason for his choice or omissions. The present incumbent, Derry Irvine, has been prompt in calling on them to scrutinise panels, in order to ensure that such a perceived conflict of interest does not arise again.
It is quite extraordinary that they needed to be told this. Neither does it address the more important question of who is chosen to exercise justice at this level, and how. As a first step, the judges should, before their appointment, be scrutinised by a Commons committee. Lord Ackner, a retired Law Lord, has complained that there is "a great danger that we will soon have the American position that newly appointed judges are cross-questioned about their views and interests". As dangers go, this one does not strike me as particularly terrifying. The Human Rights Act will produce a large number of cases revolving around the question of whether individual or collective rights should triumph, and which thus have strong political undertones. It is not unreasonable for their pre-dispositions to be a matter of record.
This is the time of year when the more daring political commentators publish prophecies for the year ahead. The events with the deepest impact, however, come out of the blue. The ripples from Pinochet's ill-fated stay in London will continue to spread well beyond his lifetime. Just when we thought that New Labour had ironed out all the troublesome creases in the party's crumpled past, along came a subject on which many Labour MPs, activists and supporters held the strongest of views and which had never been discussed in the modernisation of the party, since there were no grounds to suspect that General Pinochet would ever cause Tony Blair grief. As a result, the case is turning into a litmus test of all sorts of things, few of which have anything to do with Chile.
Jack Straw's decision to allow extradition to proceed has been hailed as brave, which is the one thing it was not. A brave decision in politics is one which goes beyond the prevailing orthodoxy. The orthodoxy in the Labour Party was for extradition. Indeed, the swell of support for such a move took Mr Blair by surprise. My hunch is that the Prime Minister's reticence on the matter is down to the fact that he would have preferred to return the General forthwith. I suspect he is uncomfortably aware of the contradictions involved in having allowed Pinochet to Britain at all, only to end up supporting his deportation to Spain.
Far be it from me to accuse politicians of being influenced by their baser instincts when they colonise the moral high ground. But had Mr Straw sent the General smartly back to Chile, his hopes of leading the Labour Party after Mr Blair would have been destroyed. The Home Secretary is the Government's outstanding success story, an able and respected minister and lively intellect. His television manner, in welcome contrast to his predecessor, does not cause small children to run behind the sofa. But on the matter of asylum, Mr Straw has got a touch of the Michael Howards. His tough human rights Bill, to be introduced next year, will rouse strong passions and accusations of illiberalism. A symbolic crusade against a reviled dictator helps restore the balance of Mr Straw's appeal.
So unexpected was the Pinochet problem that even Peter Mandelson found himself off-message. His unguarded comment that the General's presence in Britain was "gut-wrenching" was open to mockery, once it emerged that the Foreign Office had assured Pinochet that he was free to travel here and allowed him to use the VIP arrival lounge at Heathrow. But Mr Mandelson was right. It is gut-wrenching that men like Pinochet, with blood on their hands and no remorse in their hearts, should trip around London enjoying prosperous retirements. He should have been declared persona non grata years ago. But he was not, neither by the previous government, nor by this one.
Instead, he ended up facing a committal procedure in Belmarsh magistrates court. The Amnesty spokesman said of the court appearance: "It felt absolutely right. This is the way it should be." Surely not. It is not the business of Europe to dispense justice for the crimes committed on another continent. Nor is it up to us to determine how other countries come to terms with the crueller chapters of their pasts. The General does not belong in the dock in London or Madrid. He belongs in Chile: his country and his graveyard.Reuse content