The first acid test for Britain's new government is not the economy, but whether it is capable of an act of simple humanity. Can Theresa May deliver on the repeated promise of Tory and Lib Dem leaders to end the torment inflicted by the state on Gary McKinnon, the hacker with Asperger's syndrome, whom the Home Office wants to send to lengthy imprisonment and likely suicide in a US jail? His courtroom cruelty is scheduled to begin again on 24 May: the time has come to end it, once and for all.
In 2002, from a council flat and with a battered first-generation laptop, McKinnon hacked into US army computers with a gusto and brilliance attributable to his Asperger's. He left a polite message of political protest against the post-9/11 Bush administration: "US foreign policy is akin to government-sponsored terrorism these days." He did not realise that the damage he was causing would amount to £350,000. He could have been tried for criminal damage in Britain. Instead, the Virginia state prosecutors lay in wait for two years until the Extradition Act was changed and then demanded Britain surrender McKinnon for what the courts accept will be an eight to 10-year prison sentence.
On any view this punishment would be cruel and disproportionate, but the Home Office was unmoved. Jacqui Smith, quite disgracefully, refused to give McKinnon even the benefit that Britain insisted upon for the Natwest Three, namely bail when extradited to the US, and the right to serve part of the sentence in the UK. It was then that a leading expert on Asperger's, Dr Simon Baron-Cohen, diagnosed McKinnon's condition and reported that he was likely to commit suicide if extradited. But that did not bother the Home Office.
It was not that Alan Johnson was incapable of doing the right thing, he was just incapable of working out how. Parliament in the 2003 act had limited the home secretary's discretion to refuse extradition to the US to punishment that was "inhuman and degrading". These are the weasel words of the European convention, which cannot apply to Americans or to their prisons, which are no more degrading than ours.
But the uncivil servants intent on harrying McKinnon out of the country have forgotten that Britain has its own Bill of Rights, forged in the glorious revolution of 1689 and forbidding punishment that is "cruel and unusual". This law should today protect UK citizens against sanctions that are overly severe by British standards. A 10-year sentence in a foreign jail, imposed on a suicidal man whose crime would, if prosecuted in the UK, almost certainly receive a suspended sentence, is about as cruel and unusual as it can get.
Nick Clegg and Chris Huhne said so, repeatedly, during the election campaign. Last year all the senior Tories agreed, especially David Cameron ("I am deeply saddened and worried about Gary McKinnon ... I simply see no compassion in sending him to America"), Damian Green and Boris Johnson.
So, over to May, then. Her main difficulty will be to override her Home Office advisers, who have for years fought an unremitting, expensive and merciless battle against this poor man and his indomitable mother. They will, perhaps, tell their minister that if she reverses the Smith-Johnson decision, the Americans might take her to court for judicial review. But this is unrealistic: the Obama administration is unlikely to challenge a decision of the new British government. And even if it does, it is unlikely to be successful. And even if that happens, parliament is sovereign and can sweep away any adverse court decision simply by passing the Gary McKinnon (Freedom from Extradition) Act (2010).
McKinnon, like Stieg Larsson's girl with the dragon tattoo, is a rare and talented individual with Asperger's who should have been compassionately dealt with eight years ago for reckless hacking. Yet Home Office officials – Orwell called them "the striped trousered ones who rule" – are still out to get him. In court on 24 May they intend to argue that because "he has no history of serious self-harm or suicide attempts", European law cannot save him from ending his life in an American prison. That may be so. But British tradition, infused with Portia's admonition that mercy must always season justice, demands that his torment end. If May does not have the humanity to free McKinnon, her party and its coalition partner were elected under false pretences.