Sunday, 17 February 2013
Well Observed II
Henry Porter writes:
It pays to ask a simple question when confronted with a piece of legislation such as the justice and security bill, which has become so complicated that probably no more than 100 people in the country fully understand it.
Outside parliament, there is a dim sense that the bill will introduce closed material procedures – secret courts – into English civil law in cases where national security is said to be at stake. People are beginning to appreciate that this means a claimant is banned from knowing anything about their case and that this in turn will make it easier for ministers and the intelligence agencies to cover up wrongdoing, such as rendition and torture.
But that is about the limit of public awareness.
After a few days of working out where the legislation stood, who supported which obscure amendment and what chance this writhing monstrosity had of becoming law, I asked the simple question: where did the bill come from? After all, it wasn't in the Conservative or Liberal Democrat manifestos. It wasn't part of the coalition agreement and clearly there is no public demand for it. Indeed, those who do know about the bill regard it as a shocking offence to open justice – the principle that cases are heard and decided in public – and natural justice, where a person can expect to see the evidence presented by the other party and receive a fair hearing. This is not us, they say. This is Kafka and Stalinism, not Britain.
So where did it come from? The answer is simple. The bill is the idea of the very people it will most benefit – the intelligence services, civil servants and government ministers – which is why they are lobbying like hell for it.
This fact alone is enough to tell you that there should be no compromise on the traditions of English common law and that the justice and security bill should be killed off. As secret hearings and their priesthood of special advocates move from limited-use immigration courts to threaten our civil law courts, we can be sure that it won't stop there. Secrecy is habit-forming.
A vote in the Commons is expected in weeks and it's clear we have reached an important moment in the life of the coalition, which may be equal in principle to the attempt to introduce 42-day detention without charge, which Gordon Brown was forced to abandon. So we can expect to see the same plausible briefing of MPs about the need to preserve the integrity of our allies' intelligence. We will hear much bellyaching about a situation in which the government, rather than risking sensitive evidence in open court, is forced to pay out vast compensation to people who have had the temerity to allege the UK's compliance in their torture. And you will see much steam emanate from the former justice secretary Kenneth Clarke, as he insists – without irony – that his bill is reasonable and proportionate and that justice is served by secrecy, rather than diminished by it.
I know you'd like to believe him – I would too – but don't. Justice is never served by secret courts, neither in Beijing, nor here.
Let's not forget how we got here in the first place. After a series of explicit denials, most notably from Jack Straw, the Labour government had to admit the truth that British intelligence services were complicit in rendition and torture during the war on terror. That is why the security establishment wants courts where the assurances of the officials and politicians will be much harder to test and embarrassing evidence will never see the light of the day.
The bill drew a great deal of criticism from peers and MPs on a joint human rights committee. They were worried about the lack of safeguards against abuse and were not assured that ministers had made a convincing argument for secrecy. A number of sensible amendments were suggested by the Lords, which gave judges more power to weigh the interest of justice against national security and, crucially, allowed the claimant to apply for a secret hearing to prise information from the intelligence services. In other words, they went some way to introducing a two-way street.
But most of these amendments were thrown out or neutralised with the help of the Democratic Unionist party's Ian Paisley Junior in a Commons committee two weeks ago, which, incidentally, went largely unnoticed by the media because of the vote on gay marriage on the same day. The principle that secret hearings would be the last resort after every avenue had been exhausted, including the use of public interest immunity, has been abandoned. And naturally the idea that a claimant could use closed material procedure to winkle out information from the intelligence services horrified the spies' lawyers. That amendment was duly nailed. So the benefits of secrecy are to be reserved for the state.
As a Centre for Policy Studies book by the influential Conservative MP Andrew Tyrie and QC Anthony Peto explains, national security can be used to apply secrecy to cases that have nothing to do with torture and do not, in reality, jeopardise national security. Closed material procedures could be ordered to limit legitimate protests, to hamper inquiries by journalists, to prevent people from recovering property seized under the Proceeds of Crime Act and to stop wounded servicemen from suing the Ministry of Defence for faulty equipment. Special advocates would be used to represent claimants who would never be allowed to know why their cases failed or succeeded.
The justice and security bill has a Blair-era hallmark. It is disproportionate and unnecessary, which is probably why it appeals to Jack Straw, who still faces embarrassing questions on torture and rendition that took place on his watch.
But in all this there is mystery. The bill has been devised under a coalition government that includes Liberal Democrats, whose conference overwhelmingly voted against the measure. It is difficult to see how Lib Dem MPs could vote for a bill that restricts rights under the law, at the same time as increasing state power. The justice and security bill is self-evidently against everything they stand for, which may explain recent confusing signals from the party and why a Lib Dem voted against Tory amendments in committee.
Despite Clarke's spin that the bill mostly conforms to the Lords amendments, it is plain that it has reverted to its original objectionable form. As the campaigning Tory David Davis says, if the Lib Dems can't vote against the justice and security bill, what on earth is the party for? The vast majority of the party know, but do their MPs know and does Nick Clegg?