Now is the time to say sorry

If the Gibraltar judgment is not to endanger the peace in Northern Ireland, British apologies are vital

The Government has a choice to make about the Gibraltar judgment. It can wallow in the raw emotion that this extraordinary event provokes, mixing as it does anti- Europeanism, patriotic support for elite British soldiers and hatred of the IRA. Or it can do the difficult thing, swallowing hard, expressing puzzlement and sorrow, yes, but trying to ensure it does nothing to damage the peace process or popular attitudes to Europe. The first reactions were all bad ones.

For ministers, wallowing in anger is hard to resist. Yesterday's moralising by IRA apologists and former Dublin ministers was nauseating. The judgment was a national embarrassment. There was nothing synthetic about the fury of Conservative MPs when they heard of it.

More cynically, ministers know that the Conservative Party, as it nears its conference, is in need of some brutish attitude-striking. Michael Heseltine's radio performance yesterday was certainly that. During the course of a few minutes he managed to smear Labour as the friend of terrorists, suggest that the European Court of Human Rights was relevant to the lesser breeds of eastern Europe but not to Britain, and promise to take not the slightest notice of this "ludicrous" decision. Oh yes, and he also left hanging the questions of whether ministers would agree to pay the legal costs awarded against the Government.

That whirlwind of righteousness gives us a taster of what we can expect at Blackpool next month. But however satisfying such spasms may be, they leave some difficult questions for the Government. First, there is the status of the court itself. Back when the ITV documentary Death on the Rock caused such a furore in 1988, Margaret Thatcher attacked its account of Gibraltar as "trial by television". Now there has been a trial by court; but not, it seems, the right court.

There was serious doubt about the legal status of the Convention on Human Rights from its early days; the Attlee government's attorney-general, Sir Hartley Shawcross, commented that any student of British legal institutions "must recoil from this document with a feeling of horror". Now, nearly half a century on, the European Court still seems to lack the unquestioned authority here that it needs - largely because ministers refuse to treat it gravely. One can hardly imagine Mr Heseltine, or any other minister, dismissing a decision by the Law Lords as incomprehensible and of no importance.

It now looks likely that there will be a Cabinet-level argument about whether Britain should limit its involvement with the court when various protocols come up for discussion later this year - or even pull out altogether. Among those attracted by a hard line are Michael Howard and, judging by his tone yesterday, Mr Heseltine. Because this could have a serious impact on the Northern Irish peace process, Sir Patrick Mayhew would oppose them. John Major himself, though livid, will probably eventually do so, too.

This is high-risk politics. Having roused the blood of Euro-sceptic Tories in September, it might be hard to announce at Blackpool in October that Britain was, after all, staying inside the court. Leaving, by contrast, would be a piece of anti-European theatre that the party would love. Since Labour and the Liberal Democrats are committed to patriating the Convention in British law, it would also put clear blue water between Government and Opposition.

But is it the kind of distinction that would benefit the Tories? Do they really want to be going into the next election as the party that wants to take away rights rather than extend them? On a more serious note, have they thought through how such a petulant storming-out would play in Ireland?

This comes at a difficult time for the peace process. Relations between London and Dublin are not as good as publicly advertised. Recently, the wires have been humming over the question of where IRA prisoners serve their sentences, and behind that is a growing worry in the South about London's uncompromising approach. "Really, they have given nothing," argues one Dubliner. "Our deepest worry is that Major's confidence about the IRA not going back on the ceasefire is based on British intelligence which is, in fact, not very good - it's the same intelligence that failed to warn Major that the ceasefire was coming in the first place."

Utterly cynical Tories might argue that the Conservatives would lose nothing if the ceasefire broke down. The Prime Minister would have tried his decent best and honourably failed. No one, though, seriously suggests that Mr Major would allow such a thing to happen if he could prevent it.

Which takes us back to his reaction to the court. This is an awkward time when republican frustration is rising. Emotions are as high in Ireland about the Gibraltar killings as they are here. For Britain to respond to the court by denouncing it and stalking off would be seen as confirming everything Sinn Fein says about London's hypocritical attitude to the rule of law.

It would be a damaging symbol of British arrogance. And the Irish have a point. For years there has been a stubborn refusal to accept any criticism of British actions in Northern Ireland, a historical self-righteousness that wipes away the years of bigotry and discrimination which UK citizens suffered in Northern Ireland. Yet Britain has mostly kept itself above the self-examination that the peace process requires. Everyone must repent and admit their tribalism, except the agents of the Crown. IRA killers, Sinn Fein propagandists, loyalist bigots, fellow-travelling republicans in Dublin - all must shuffle into history's confessional. British ministers, though, find nothing to feel humble about at all.

It is this separation between civilised and savage that the court judgment mocks on the world stage. And the truth is that war, even a war against terrorists, degrades aspects of the democracy that wages it. There were the shoot-to-kill allegations, which have never been satisfactorily refuted; the Diplock courts; the miscarriages of justice in London; the broadcasting ban.

You do not have to accept the moral equivalence of elected British politicians and Irish terrorists to agree that these things damaged our national reputation and deserved to damage it. They ought to take Britain down a little into the common ground of confessions and, dare I say it, apologies.

Imagine a different British reaction to this judgment. Imagine Mr Heseltine had gone into Broadcasting House to say that, though he personally sympathised with the SAS men, there was no doubt that "unfortunate and regrettable mistakes" had occurred during the fight against terrorism, and that these were days for self-examination. Imagine if he had said that no party to the tragedy of Northern Ireland, including the British Government, was blameless and that it was time to acknowledge this and move on.

Such humility would have had a powerful and benign impact on the peace process. It is not too late for a little of that tone to be heard and for cooler judgements to be made about the court. Yesterday's events gave ministers a sort of sudden character test: behave like statesmen or like politicians. Let's hope that after their patriotic storm, their calm is coming.