Getting our hands dirty

Is it time for the government to withdraw from the European convention on human rights?

That's the question posed by the court of appeal's decision that al-Qaida's "ambassador in Europe", Abu Qatada, and two Libyan terror suspects cannot be deported from the UK.

"DD" was described by the Special Immigration Appeals Commission (SAIC) as a member of the Libyan Islamic Fighting Group. He was found with a map marked with the flight path of Birmingham airport.

"AS" was involved with a serous terrorist group in Milan judged to be close to the operational stage of a terrorist attack in Europe.

As for Abu Qatada, in 2004 Mr Justice Collins, former chair of SAIC, after hearing an appeal against his deportation, said: "The appellant was heavily involved, indeed was at the centre in the United Kingdom of terrorist activities associated with al-Qaida. He is a truly dangerous individual."

The court of appeal, note, accepted these judgments about the suspects. Yes, they were indeed threats to national security with links to al-Qaida. None the less, guided by the Human Rights Act, it stopped their deportation. In effect it let them go - without a "realistic prospect of deportation" the government now has no legal ground to hold Abu Qatada.

The government expressed disappointment and abandoned plans to deport another 10 Libyan suspects.

We have reached this crisis for legal and cultural reasons.

Let's take the legal problem first. The 19th century liberal politician Sir William Harcourt said: "Let us give our republic not the best possible laws but the best which they will bear. This is the essence of politics." This ruling forces us to face the question, how much longer can we bear all the articles of the European convention of human rights? Incorporated into UK law in 1998, the ECHR has combined with native judicial activism to squash every government policy to deal with foreign terror suspects.

Detention without trial was stopped by the law lords in 2004 on grounds of disproportionality (with the exception of Lord Bingham, they judged there not to be much of a threat) and "identicality" (foreign terror suspects were not being treated in the same way as UK terror suspects).

When the government then tried to deport foreign terror suspects it turned out to be impossible in law to send them to countries suspected of abusing human rights. And by and large those are the countries they come from.

The government then spent two years trying to get round this problem by securing "memorandums of understanding". The idea was that countries to whom the suspects were to be deported would pledge not to ill-treat them. The court of appeal decided these memorandums were meaningless last week. It argued that Jordan and Libya could not be trusted and, anyway, even if the suspects themselves would not be ill-treated, there was a possibility that they would not get a fair trial at home because one of the witnesses might have been ill-treated.

Now they will probably be placed under "control orders". And how have they worked out? One headline tells the story there. "A suspected al-Qaida recruiting sergeant is on the loose in Britain after becoming the seventh control order suspect to abscond." Security minister Tony Macnulty has complained that control orders are not even our second - or third - best option for dealing with suspected terrorists, but under existing laws they are as far as we can go.

The cultural problem we face is that the existing laws are as far as many people want to go. In a therapeutic culture such as ours we will do almost anything to evade what the philosophers call the problem of "dirty hands".

Moral people sometimes find themselves in "impossible" situations. They have to respond to the immoral or evil acts (or plans) of others within a structure of choice which ensures that whatever they choose they will violate a moral principle they hold dear. Whatever they do, the moral person ends up with dirty hands. In such situations, Stephen de Wijze points out: "it is possible for an action to be justified, even morally obligatory, yet nevertheless also wrong". And he explains why this is so:

"What appears to be incoherent and paradoxical occurs because ... our moral reality includes a range of conflicting demands on our practical moral reasoning, each demand backed by credible independent claims which can sometimes pull in incompatible directions."

But in a therapeutic culture, notes Jean Bethke Elshtain, this kind of paradoxical and practical moral reasoning is offensive. We struggle to "think of political issues as anything other than as a private saga of internal well-being". Feeling good about ourselves trumps all. A prudential or real-world morality is eclipsed by our performance of self-identity. An older distinction between moral man and immoral society is lost. Elshtain warns us we must recover that distinction. "One can't only focus on one's own goodness but one is obliged to focus on the concrete situation and ask what is to come."

After this ruling the government has no alternative but to open a debate about "what is to come".

Of course, one can take the attitude that when the director-general of MI5, Jonathan Evans, tells us at least 2,000 people known to the security services are involved in Islamist terrorism, and there are probably 2,000 more that they do not know about, he is just lying. But if one accepts the figures the options narrow.

The government can derogate from the ECHR and declare, for what it would be worth (symbolically, a lot), that it has decided to give precedence to the 1951 Geneva convention which gives us the right to return any refugee reasonably judged a danger to society. It can cite Cicero - the safety of the people is the highest law. Or it can reform the criminal law until foreign terror suspects can be charged and tried in open court. (Currently, the open presentation of evidence may compromise intelligence operations or fail to meet the requirements of proof in a criminal trial.) Or, if it does not want to risk distorting the entire criminal justice system, it can create something like the Diplock Courts that functioned for 20 years in Northern Ireland.

Every choice is excruciating. But not choosing is not an option. That's the "impossible" situation we are in. Whatever it does, the government now has a duty to get its hands dirty.