• prominent Tory backbencher mounts robust attack
• Ken Clarke’s defence of bill challenged
One of the coalition government’s most dangerous and counter-productive bills is being debated in detail for the first time by MPs this week.
The purpose of the Justice and Security Bill is to prevent any information relating to the activities of the security and intelligence agencies, notably MI5 and MI6, from ever being disclosed in public.
MPs will debate the bill’s during its committee stage in the Commons this week. Supporters of the measure — notably ministers, British spooks, and the CIA — say it is designed to protect national security.
Moreover, they add, information which has previously remained private, will in future be heard in court, albeit in secret.
They also say that the bill will enable MI5, MI6, and the police, to respond to the charges made against them — in other words, to deny them. Under the bill, they will be able to do so, but in secret and in the absence of those making the charges.
Opponents of the measure say it is designed to protect the security and intelligence agencies from embarrassment and to prevent their abuses and wrongdoing from being exposed.
Information which had previously been private but could in future be heard in court — but only in secret — includes British knowledge of, or collusion in, the rendition and unlawful abuse (even torture)- of British citizens and residents detained in Guantanamo Bay or rendered to Gaddafi’s secret police in Libya.
To prevent such damaging information from being revealed, the government has paid out millions of pounds in compensation in out-of-court settlements.
The Justice and Security Bill, its supporters say, will enable the security and intelligence agencies to deny (albeit in secret) any charge made against them and so they would not have to pay out any compensation.
Ken Clarke, the minister given the responsibilty for steering this bill through parliament (on the grounds that his liberal credentials would somehow sweeten the pill) made some extraordinary claims in response to a report written by Andrew Tyrie, a prominent Tory backbencher, and published by the centre-right thinktank, the Centre for Policy Studies today (Monday, 28 January).
He said: “This bill will allow light to be shone on material that is currently kept in the dark.” This is true only if it is possible for light to be shone in secret.
Clarke continued: “It will allow for cases to be heard where there is currently no means of hearing them.” There are no means of hearing them now only because the spooks, and their lawyers, will not allow them to be heard.
Clarke went on: “It will allow judges to examine national security sensitive material and establish the truth which is just not possible at present. This should give the public greater confidence that the intelligence services are being held to account.” This all depends on how judges respond to arguments and claims put forward by the security and intelligence agencies.
Judges have traditionally been very wary of challenging the executive (including ministers) when the spooks and ministers hoist the flag of “national security”. It is far from clear whether the judge, or ministers, will have the real final say in such secret court hearings.
Clarke said: “In practice nothing will be heard in closed court under these proposals which is currently heard in open”.
This is perhaps the most disingenuous claim of all. The Justice and Security Bill was drawn up precisely in response to the English courts, in the case of Binyam Mohamed, the British resident abused and rendered to Guantanamo, dismissing pleas by the spooks, ministers, and the CIA, and ordering the disclosure of material (albeit in summary form) showing that MI5 and MI6 knew about his unlawful treatment.
If the bill becomes law, certainly in the view of those behind the bill, that kind of information would never again be disclosed. Nor would such information as MI6’s involvement in the rendition of two prominent Libyan dissidents secretly flown to Tripoli where they were jailed and abused. This would not have been disclosed had it not been for Nato bombs blowing up the headquarters of Gaddafi’s secret police leaving the tell-tale evidence in its filing systems lying in the rubble.
Clarke concluded: “Crucially, the bill will mean the public receives a final judgment in more cases as to whether the government is culpable or not”. But how will the public be able to judge?
The record of the long and sorry history of collusion in rendition suggests we cannot, and should not, trust ministers and spooks to tell the truth in secret courts.
Chris Mullin, the former Labour foreign minister, writes on the bill on the Guardian’s Law site.