Greater and lesser crimes are not so very far apart

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The Independent Online
ONE OF the most persistent errors, embraced as fervently by Mr Tony Benn 20 years ago as by Mr William Hague today, is that there are certain "issues" which are important and others which are not. Examples of the former include education and housing, employment and health, of pressing concern to "our people", ordinary people, "the people out there" and other much-patronised categories. Examples of the latter include the constitution, systems of voting and international finance, of interest only to the metropolitan elite, dwellers in Islington (in reality, as I can testify, a very mixed area) and inhabitants of what is called the Westminster hothouse.

"I've never had one question on the doorstep about the House of Lords/devolution/proportional representation/the single currency" is a common formulation among MPs. It may be true enough, but so much the worse for the doorstep. The entire history of the Major administration was shaped by the Maastricht Treaty and the subsequent parliamentary struggle to incorporate it into law. If we had possessed a different voting system in 1997 Mr Tony Blair would not enjoy his huge majority. And the story of every single previous Labour government has been decisively affected by international finance.

Mr Blair's most crucial decision since May 1997 has been to stay out of the euro until after the next election in the hope of winning it. The most interesting news of last week was that Mr Rupert Murdoch had moved into Italy and had no principled objection to the single currency. There are few things to which Mr Murdoch does have a principled objection. As the headmaster Claude Elliott once advised: "Try anything once, except incest and Morris dancing."

In the meantime, Mr Blair has one problem which might have been avoided. It is what to do about General Augusto Pinochet. My guess is that he will leave it to Mr Jack Straw.These extradition cases can have political consequences. Some of us remember the extradition of Chief Enahoro and its effect on the Macmillan government.

In this country we have an independent judiciary, as the Lords of Appeal demonstrated last week, and as other countries - and some commentators in this country, including Mr Harold Pinter - do not seem able to understand. But at both ends of the judicial process, at the start and the finish, there are mist-enshrouded areas. It is, for instance, difficult to believe that the initial warrant for the general's arrest was not issued without at least the knowledge of Mr Straw.

Whether he could have stopped it if he had wanted to is more difficult to say. As matters turned out, he did not. His line was that the law must take its course and that his task was to uphold the law. In the Divisional Court Lord Bingham held that the general could not be extradited not only because he enjoyed sovereign immunity but also because he was himself neither a British subject nor someone who was alleged to have maltreated British subjects. This rather neglected the torture of Dr Sheila Cassidy, and no doubt of other Britons as well. But maybe the Spanish judge had not included it in his extradition request.

It makes no odds, however. In the Lords the argument disappeared that the general was not a British subject or someone who had abused them. It seemed to vanish into the atmosphere. Instead their lordships concentrated on whether General Pinochet enjoyed immunity as a former head of state. Lord Nicholls, who gave the leading opinion of the majority of three judges, held that torture and hostage-taking were so abhorrent that they destroyed what was called sovereign immunity. But, as far as I can make out, these crimes against both international and domestic law can still be committed with impunity when the accused is in situ as a head of state. In these circumstances sovereign immunity remains.

Moreover, lesser crimes can still be carried out and the accused retains his immunity not only when he is head of state but afterwards as well. Lord Slynn, who gave the leading opinion of the minority of two, stated as one of his reasons for dissent that it was impossible or, at any rate, difficult to distinguish between greater and lesser crimes.

There is surely something in this. In the early 1970s, for example, the British authorities certainly subjected Republican suspects in Northern Ireland to torture. Admittedly it was nothing like as horrible as the practices which General Pinochet's lads went in for. But it was torture all the same, involving as it did beating, kicking and what were prettily dubbed "sensory deprivation" and "positions of strain". A cover-up was duly attempted under the then Lord Chief Justice, Lord Widgery, who was, as it happened, off his head, which was covered up too. But the Conservative government's deception was soon detected both at home and abroad.

The head of state at the time was Queen Elizabeth II. She is safe enough because, despite her frequent travels to far-flung quarters of the globe, she is an existing head of state, and will so remain until her death, unless an Act of Abdication is passed to allow Prince Charles to succeed her. She is safe enough. But what of Sir (as he then wasn't) Edward Heath, who was prime minister? That he was not then head of state makes no difference. His successor as Conservative leader, Margaret Thatcher, was very put out when it was the Queen who represented this country at the D-Day commemorations in 1984, while Francois Mitterrand, as President of the Republic, represented France. Sir Edward's position would only make his extradition easier. For there could be no question of his pleading sovereign immunity. He would have been directly responsible. Mr Gerry Adams and his brave boys might try to capture him.

Mr Bertie Ahern, the Irish Prime Minister, might lend respectability to the enterprise by giving it his imprimatur of approval. But, as we know, he would do nothing of the kind, nothing to disturb in the slightest degree his happy relations with the British government, as demonstrated by the sycophantic newspaper and television coverage of Mr Blair's recent speech to the Dublin parliament, with News at Ten going so far as to parrot the No 10 cry that he was following a path which only JF Kennedy and Nelson Mandela had trodden before. Forgive and forget, said Mr Blair, look to the future, that sort of thing: much the same policy, as it happens, as is being pursued by the present administration in Chile. There is no danger to Sir Edward from Ireland, though if I were Lady Thatcher I should give Argentina a wide berth, for the sinking of the Belgrano was certainly a war crime.

If this has any moral for Mr Straw, it is that he should send the general back to Chile as soon as he can. He has said, or allowed it to be said on his behalf, that he will not be guided by political considerations, that it is a quasi-judicial decision which he has to make. This is indeed the way in which ministers or, rather, their civil servants, arrive at decisions of this kind, by means of precedent. There are few precedents for this case. The Lords decision was unexpected. And the general was here as an honoured guest, even having a risotto made for him at the River Cafe. Why, he might just as well have been received at No 10. There was an element of entrapment. Mr Straw should let him go.