Secrecy and moral hazard

Our Government has knowingly facilitated the rendition and torture of prisoners. This statement is not mere “conspiracy theory”, as Jack Straw once told the Commons. It was found as a fact by the Court of Appeal in Binyam Mohammed v FCO [2010]. Just as shocking, the Court of Appeal found the Government had made false statements to the court and to Parliament to cover up the truth. The court concluded that “the security services have an interest in the suppression of such information”.

In a democracy, such cruelty and mendacity should have provoked action to expose wrongdoing and prevent repetition. Unfortunately, the contrary is the case. The Government has introduced the Justice and Security Bill which will close the path to accountability in two ways: first, by the introduction of secret courts called ‘closed material proceedings’ (CMPs); and second, by giving MI5, MI6 and GCHQ immunity from Norwich Pharmacal disclosure orders.

CMPs would allow the Government to communicate with judges in secret and deploy security-sensitive material against other parties in their absence. Such practices have been outlawed for centuries. They are seen as the hallmark of totalitarianism. They will damage public confidence in the courts at home and destroy our moral standing abroad. Over 50 security-cleared special advocates who have experience of CMPs in special immigration appeals commission hearings, have condemned them.

The Government says CMPs are needed because the secret services cannot defend themselves against abuse allegations in open court without damaging national security. It has asserted there are some 27 such cases in the pipeline, but forbidden any independent verification of that. It has refused to allow the special advocates or the independent reviewer of terrorist legislation to inspect the case files, except for three “selected” cases. The Joint Committee on Human Rights concluded that the Government had failed to justify CMPs in such cases.

Furthermore, the bill would let the Government use CMPs aggressively in any type of civil litigation, including committal to prison for civil contempt, habeas corpus hearings or even personal injury actions brought by disabled servicemen.

The abolition of the Norwich Pharmacal power against the security services would immunise them against disclosure orders in any type of case - complicity in torture, murder or crimes against children. The latter is not fanciful. Children were rendered to Gaddafi’s Libya with UK involvement.

In 2005 Conservative MP Andrew Tyrie set up an all-party group on extraordinary rendition in an effort to get at the truth. Last week he and I published a paper for the Centre for Policy Studies entitled ‘Neither Just Nor Secure’, which calls on the Government to think again.

The bill has been condemned by the Times, the Daily Mail, the Independent, the Guardian a former DPP, a former attorney-general, Liberty, Justice, Reprieve and now the think-tank founded by Margaret Thatcher. The integrity of our justice system is at stake. The bill is now at the committee stage. If any issue should bring lawyers out onto the streets, this is it.