July 14 2024
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Secret Courts: an affront to justice and the rule of law

Secret Courts: an affront to justice and the rule of law

Thanks to Tony Blair’s pathetic desire for a place in history as a defender of the western way of life and his consequent decision to take the UK into a war in Iraq that did not have the legitimacy of backing from the UN he has made the UK a target for a terrorist attack, writes Mark George QC. Like anyone else I have no desire to see any such attack become reality.

We have had a veritable plethora of legislation passed in the last few years which is more than adequate to deal from a legal point of view with those who plot terrorist attack against the UK. In any event no one who supports the Justice & Security Bill has even tried to suggest that fears about terrorist activity have anything to do with why such a Bill is apparently needed.

One of the consequences of wishing to join the US in its campaign in Iraq and later in Afghanistan has been the fact that the UK government, which at the time happened to be run by the Labour party, became involved in torture carried out by the US. The UK assisted in this venture by providing facilities to the US and by supplying lists of questions to be put to suspects under torture.

Even if it be true that no UK agents actually took part in torture they knew it was going on and positively went along with it. It is a matter of deep disgrace to the UK government and especially to people such as Blair and then foreign secretary Jack Straw.

As a result of UK collusion a number of British citizens and former victims of the US detained in places such as Bagram airbase and later Guantanamo Bay have sued the UK government for damages for torture and other gross mistreatment. Since those civil claims have been heard in UK courts some of the details have become public knowledge.

On occasions these claims have threatened to expose the worst actions of our security services and their political masters. In civil proceedings each party is entitled to demand ‘discovery’ or disclosure of documents held by the other side in the proceedings which may reasonably assist that party to prove its case.

Dirty linen
When those documents disclose information that that party would rather keep hidden their disclosure can of course prove very embarrassing to the party whose complicity for example in rendition and torture is thereby exposed. This has happened in a number of cases in the past. One way in which the government has tried to avoid too much adverse publicity has been to settle the proceedings by paying damages to settle the claim without it ever coming to trial.

That is very attractive to governments keen to keep their dirty linen washing out of the public gaze even if it means them having to pay out thousands of pounds in compensation to their victims.

But the government and UK security agencies faced with a number of these actions and fearing that more may follow in the future is keen to limit the opportunity for these matters to be played out in public. That is why they are keen to see the laughably misnamed Justice and Security Bill become law.

This Bill has nothing to do with either justice, since it seeks to deny justice, or security which is adequately provide for elsewhere in the armoury of legislation on the statute book. Instead this Bill is specifically designed to provide cover for the UK government and its security agencies by ensuring that such cases take place in private and in circumstances where the party suing the government will not be able to know what evidence the government holds that could help that party to prove its case against the government.

Closed material procedure
One device that will be involved is the so-called closed material procedure which means in essence that one party will be kept in ignorance of material shown to the court, in secret and on which the case will be decided. It also involves the use of barristers who have been ‘security cleared’ to see sensitive material which they cannot disclose to the party who is suing the government.

A party will thus not know why their claim has failed, if it does, although both the court and the government will. If this sounds like something from a Franz Kafka novel or ‘1984’ come to life that is because it is. This is shocking stuff from the country that prides itself as having invented fair trials and given birth to the concept of the rule of law.

In this way the government hopes to be able to keep its dirty secrets under wraps and to prevent the public to whom they are supposed to be beholden from knowing what its government gets up to whilst they sleep tight in their beds.

Now, I don’t think I am naive about all this. I am prepared to accept that there may be times even in a democracy when a government needs to keep some things secret from the rest of us, at least for a period of time. But that does not and in my opinion never should allow a government to get involved in what is undeniably illegal activity such as torture and then think that it is entitled to keep us in ignorance of that fact. One of the benefits of living in what is meant to be a democracy is the right to know what our government is doing in our name.

There was massive opposition to the invasion of Iraq as we have been reminded by a flurry of recent articles about the 10th anniversary of the two million people march though London a few weeks before the illegal invasion began.

Many of those who opposed the Blair government knew full well that war is a dirty business and they did not accept that a case had been made for killing thousands of innocent Iraqis in a war which the Bush government was so obviously keen to prosecute and which Blair thought gave him a golden chance of basking in the reflected glory of a speedy US victory. Now that we have at last some idea of what the government got up to we are entitled to demand that civil proceedings arising from this should take place in open court where we and the press can see and hear all there is to be told about the involvement of the UK is rendition and torture.

It is not acceptable for a democratic government to engage in illegal activity particularly when it is as gross as torture and when it happens it is equally unacceptable for the government then to try to keep such activity secret from the rest of us.

We have a right to know what our government has been getting up to. Apart from anything else it will ensure that the next time a UK government tries to rally support for an illegal war the opposition will be even greater than it was over Iraq and MPs will feel emboldened to deny the government support for such a venture.

The Justice and Security Bill is an affront to justice. It is shameful that any UK government should propose it. If the Lib Dems have any principles left after three years in coalition they will all vote against this Bill and hopeful the Act will never see the light of day. If it passes into law it will be a shameful day for British justice and yet another indication that UK governments no longer care about the rule of law.

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