The government's 'concessions' over secret courts are not concessions at all
Don’t get me wrong, I enjoyed Spooks as much as the next person, although I lost interest once the characters played by Rupert Penry Jones and Hermione Norris were bumped off. Along with most people, I have no illusions as to how accurate a portrayal it represented of the security services. Most amusing was the idea that there were only about a dozen spies at most, all highly swashbuckling, protecting us.
Nobody thinks there are spies much like James Bond either, but I suppose most people would generally assume that our spies at least are the good guys and reasonably successful in doing their jobs. And there’s the rub. Mostly we have no idea what they are up to, which is why the government’s proposals for secret courts are so worrying.
I wrote not that long ago about why these plans undermine the principle of open and equitable justice and why we should oppose them. Secret courts have no place in an open and democratic society and apparently the justice secretary Ken Clarke has finally been swayed by the Daily Mail’s campaign against the proposals.
Or perhaps not. The much-trumpeted climbdown, most notably on the proposal that public inquests might be held in secret, is really nothing of the sort, if you take as your starting point the principle that all institutions must submit to the rule of law. Instead, this bill means that the intelligence services can insulate themselves from legal challenge and press scrutiny.
That is not to say we shouldn’t welcome the concessions, limited though they might be, although, as with any government u-turn, it is always worth remembering what Shami Chakrabarti, director of Liberty, calls the ‘oldest parliamentary trick’ where you start with ‘a policy so outrageous that any crumb of comfort looks half reasonable’.
The other crumb offered by Clarke has been to decide that a judge, not a minister, will make the final decision on whether proceedings should go into close session. It's difficult to see, however, how the proposals, which remove judges' public interest immunity discretion, are anything other than a whitewash.
In reality, this 'concession' is a nonsense. Under the bill, a judge ‘must’ agree to a secretary of state’s demand for secret hearings if the disclosure of information ‘would be damaging to the interests of national security’. This, says Clarke, is a much narrower criterion than ‘the public interest’. It may well be, but the problem remains, who defines what is in the interests of ‘national security’. The judges? The government? The spies?
One key opponent to the proposals, Liberal Democrat peer and former Director of Public Prosecutions, Lord Macdonald, told the Today programme that ‘judges pay a high degree of deference to ministers in the area of national security’. Judges themselves agree. As Lord Kerr of the Supreme Court said in al-Rawi, the leading case on secret hearings in civil claims, ‘evidence which has been insulated from challenge may positively mislead’.
I don’t know about you, but I want to know what is being done, in my name, to protect ‘national security’. I want to know if my government has been complicit in the torture of detainees overseas or has allowed their rendition back to brutal regimes where their lives are in danger.
I am quite sure the Intelligence and Security Committee doesn’t provide the accountability it’s supposed to. But that’s hardly surprising when it is appointed by the prime minister, has its reports vetted by him and probably only sees what MI5, MI6 and the government want it to see. The committee probably knows this, but that doesn’t make me feel any better about it.
Ken Clarke claims there will, in fact, be more justice under these proposals because the only alternative is silence. This sounds pretty unlikely to me. Much more likely is that he wants to protect ministers against civil damages claims, like those from Guantánamo Bay detainees ‘to whom we paid a lot of money recently because we could not put the evidence up against them’.
Lord Macdonald suggests the government has failed to come up with any concrete examples where this has happened. More to the point, it doesn’t make it any more like fair justice if the case goes ahead in secret and is decided on evidence that one of the parties can’t even see.
It is worth citing the case of Khadidja al-Saadi who was rendered at the age of twelve by the UK to Gaddafi’s Libya. Her family are taking the British Secret Services to court for conspiracy to torture after failing to get either an apology or an explanation for their ordeal. Even with Ken Clarke’s ‘concessions, her case will be held in secret, so we’ll never know the truth.
On hearing about the plans, Khadidja al-Saadi said they sounded
‘a lot like the trial that Col. Gaddafi used to sentence my father to death. In that case, my dad told me, a man came from behind a panel and whispered intelligence in the judge’s ear. My father had no opportunity to respond and had no idea what was said. [He was] sentenced to die. I say ‘sentenced’ but it was no trial. It was a joke. Is this really what Britain wants to do with my case?’
And this, ultimately, is the point. I don’t want my justice system to be compared with that of a raving, maniacal and badly-dressed despot. I don’t want our spies, however noble and just they might be, running around unchecked. And I don’t want ministers to act as judge and jury, deciding what I can and can’t know about what they are doing in my name, because it isn’t always good and it’s not always pretty.