Right now, there are about 60 assorted cases of people trying to sue Britain’s intelligence services. Is that because our spies are unusually wicked, cavalier or brutal? Or because they may be caught in a legal trap with the laser beam of the human rights lobby moving ever-closer to their vitals? I argue the latter in my Telegraph column today, effectively a defence of what is wrongly described as ‘secret courts’.
For some years now, a game of British spy-catching has been going on. The rules are simple. Say a bomb goes off in Pakistan this Christmas and the police round up suspects with their, ahem, usual care and attention. They are all released, without charge. But it is now standard operating procedure to sue the Brits – especially if one had spent some time in London. All he needs do is claim he was questioned by a Brit (or on behalf of one) and then sue, claiming tangential MI5 or MI6 involvement. He demands to see the files on him. If he was a suspected jihadi, files would likely exist. Under current UK law, this demand is valid.
Except the British security services knowing that they usually cannot defend themselves in court – because to do so would mean making public secret documents, blowing agents or betraying allies. They could mean having to settle out-of-court – and for millions. This is compensation but, without justice. The facts of the case – some of which may have merit, but many do not – remain shrouded in secrecy and mystery.
The Justice and Security Bill debated in Parliament in Tuesday may finally end this. They have what’s known as ‘closed material procedures’ (CMP) within trials: the classified information is shown (and, crucially, is open to challenge) by specially-vetted lawyers. Canada, Australia, the Netherlands and Denmark have all brought in similar changes to balance justice with security. But in Britain, the human rights lawyers – and their friends who qualify as Special Advocates – say it’s an affront to justice. The human rights lobby quite like the complex system (as do most lawyers) and want it kept as it is.
Crucially, the CMP is already being used in UK deportation cases – and used to defeat the government again and again. The young Russian lady who was advising/having an affair with Mike Hancock, a Liberal Democrat MP, was identified as a threat to national security by the government. But she won her case after a Special Advocate challenged the government’s evidence in court using CMP. Abu Qatada also used CMP to defeat the government a month ago.
Allowing our spies to use CMPs would bring Britain into line with other civilised countries dealing with terror threats, it would allow proper cases of abuse to be heart in court and it would deter spurious claims being made against the spooks on the ground that they can’t, at present, fight back.
I’m normally suspicious when ‘national security’ is invoked in an argument. The snooping bill, for example, has nothing to do with spies (who, anyway, have permission to intercept any communication they want). The snooping bill would be of greatest help to tax inspectors and other government agencies. But modernising courts to deal with security cases ought to be a straightforward procedure. It’s time to let our spies off the rack.