Coffee House

No, Mr Bond, I expect you to settle out of court

21 December 2012

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.

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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.

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Show comments
  • Dukesy

    a practice of lawyers called Public Interest Lawyers seem to be the main beneficiary of this. They appear to have represented every jihadist who’s ever had the slightest grievance against the British State and won. Some might conclude that they trawl the World looking for any spurious case from which they can profit. True 5th Colouminst

  • dorothy wilson

    Why is this happening?

    1. Ample supplies of legal aid. available to all and sundry.

    2. Greedy and amoral lawyers who line their pockets by directing their “clients” in the direction of that legal aid to pay their massive fees. And if their cases do not succeed in the British courts accessing yet more legal aid to take them to the ECHR

  • dalai guevara

    Our position towards the ECHR is pretty much untenable right now. Hundreds of civilian foreigners are currently settling with the MoD as we speak and all we hear is about is how outdated the Human Rights legislation is. Really? Shame on us.

  • Brown Finger

    Andrew Mitchell: The Metropolitan Police have David Cameron over a barrel regarding his contacts with Coulson, NI,et al. Cameron had access to illegally obtained information of the then current Brown administration. Blackmail is a dirty word and its well within the volcabulary of the Metropolitan Police.

  • HooksLaw

    Off topic, but we are in for a tough 4 years if John Kerry becomes Secretary of State.

  • HooksLaw

    Good luck with trying to argue that one with the usual suspects Mr Nelson. As with the ‘granny tax’ lies and the lies about Cameron’s pledge, we get the witless ‘snoopers charter’.

    Quite frankly give the massive tax evasion going on I would be happy to see more ‘snooping’. But the customs and revenues already have quite a few draconian powers.

    2008 – ‘Armed with their new powers, tax inspectors will be able to make “unannounced” visits to a person’s home if they are suspected of…’
    2008 – ‘Tax inspectors are to be given intercept powers under the Regulation of … Serious Fraud Office under fire over electronic eavesdropping rule…’
    2010 – ‘Tax inspectors have been given police-like powers to access … ‘

    • Colonel Mustard

      Yes, we understand the present government’s attraction to more rather than less ‘snooping’, despite their Coalition Agreement promises, and therefore your support of that approach.

  • Wilhelm

    I don’t think we should be worried about spys, it’s the enemy within that I’m concerned about, marxists infesting our education system, teaching / brainwashing our children.

    As this clip demonstrates , from the 1980’s, the school play is twisted into a drama about black liberation.

    • Wilhelm

      Part 2 Left wing brainwashing and radicalisation of Britain

    • HooksLaw

      Yon missed out the ‘sieg heil’ at the end, but I can imagine the salute.

      • Wilhelm

        Hooky squeals” sieg heil ”

        This is the classic standard form of abuse by the Left. The ” nazi ” jibe is constantly used to delegitimize any nationalism
        and social conservatism with the most potent weapon in the Left’s rhetorical

        The principal purpose of the incessant repetition more than 70
        years after the war is to stigmatize any nationalist movement, National Socialist or otherwise.

        The Lefts anti-Hitler
        orthodoxy, invoked almost daily, is in effect tacit propaganda for multiracialism
        and a potent device to keep all nationalists perpetually hiding in closets,
        too afraid of labels like “racist” and “nazi” to openly say what we sincerely

        • Sarah

          So I won’t be seeing any “feminazis” from you, “Wilhelm”.

  • ButcombeMan

    “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.”

    Fraser you are reducing your comments to those of a cub reporter on the Daily Mail. This statement of yours is inaccurate & misleading. Even the term “snooping bill” is reducing this place to that of tabloid journalism. Even spies (in the UK) do not get to do what they want.

    “Greatest help to tax inspectors? You are being ridiculous. “Tax inspectors” by implication those dealing with the affairs of ordinary tax payers typically do not access electronic contact data.

    That small bit of HMRC which deals with serious fraud, multimillion pound VAT, Export licensing and so on could get access and no doubt do now, to what exists now, in controlled circumstances.

    The bill will be of greatest help to those dealing with the most serious, organised, domestic and international criminality and terrorism. SOCA (soon to be the NCA,) and CEOPS, Special Branch, the SFO, Anti Terrorism Police (to stay with MetPol for now-maybe move to the NCA later) and the HMRC Investigators I described.

    Why are you misrepresenting this?

    You and other commentators need to face up to what the bill is trying to do, it is to keep pace with the increased possibilities for electronic contacts.

    If the bill falls, the UKs response to serious criminality will continue to degrade, We may not notice much at first, we surely will eventually.

    • Colonel Mustard

      The purposes are somewhat broader than your comment suggests:-

      “…(a) in the interests of national security,
      (b) for the purpose of preventing or detecting crime or of preventing disorder,
      (c) for the purpose of preventing or detecting any conduct in respect of which a penalty may be imposed under section 123 or 129 of the Financial Services and Markets Act 2000 (civil penalties for market abuse),
      (d) in the interests of the economic well-being of the United Kingdom,
      (e) in the interests of public safety,
      (f) for the purpose of protecting public health,
      (g) for the purpose of assessing or collecting any tax, duty, levy or other
      imposition, contribution or charge payable to a government department,
      (h) for the purpose, in an emergency, of preventing death or injury or any
      damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health,
      (i) to assist investigations into alleged miscarriages of justice, or
      (j) where a person (“P”) has died or is unable to identify themselves
      because of a physical or mental condition—
      (i) to assist in identifying P, or
      (ii) to obtain information about P’s next of kin or other persons connected with P or about the reason for P’s death or condition.

      I especially draw your attention to the interpretation of (e), (f) and (g) and the very broad understandings that could be formed around these by different governments. Would Rotherham SS be able to argue that preventing the adoption of a child by a UKIP couple is in the interests of public safety and to protect public health? By their own reasoning almost certainly.

      The definition of “relevant public authority” is also broad and well beyond those agencies you suggest. Experience with RIPA suggests that this would, indeed, become a “Snoopers Charter” simply because it appears that “relevant public authority” agencies in modern Britain (which would include the Rotherham SS) are incapable of exercising proportionality or restraint when it comes to their concept of controlling the population’s behaviour and the authorisation process becomes routine and rubber stamped rather than interrogative.

      Finally the “Request Filter” part of the Bill is so labyrinthine as to be all but incomprehensible.

      I trust the intent of the Bill being as you suggest. I simply do not trust the execution or the ways in which the Bill might be used in future.

      Xin Loi!

  • In2minds

    “The Bill has pretty tight protections” – That was said about RIPA!

  • Adrian Drummond

    Has America agreed to this? Don’t we need to get their permission first?

    • Fraser Nelson

      America has far tougher laws, and we’d stop well short of what the CIA has.

  • Bluesman

    The trouble is Mr Nelson, as you know, the CMP would go the same way as RIPA. I would let our spies off the rack but as sure as eggs is eggs this will be extended to every jobsworth with a data entry terminal and an obnoxious telephone manner.

    • Fraser Nelson

      The Bill has pretty tight protections, but I take your point. I’d be up for a sunset clause, to review after two years to see if it the CMP being abused or not. But it has worked pretty well in deportation cases for 15 years.

      • Bluesman

        Mr Nelson the problem is that the “sunset clause” would always be nodded through “we have duty…” and then fade into a Statutory Instrument that does not even need a nod and then extended to meet “developing circumstances”. Still, I find your faith in The Tribunes rather touching. Me? Not as far as I could spit a rat.

      • Ostrich (occasionally)

        “But it has worked pretty well in deportation cases for 15 years.”

        Yeah? And Abu Qatada’s still here?

  • David Ossitt

    “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?”

    Neither of the above, we are simply a soft touch and our human
    rights lawyers actively attempt to drum up business at home and abroad.

    • mikewaller

      Framing the the question as an “either..or” was a pretty shabby trick by our editor. Anybody with any experience of the real world will know that examples fitting both cases will be found with little difficulty. Indeed, there will be a rather more complex pattern. In some instances unspeakable thing will have been done to entirely innocent people with no gain to whatever be defined as “the greater good”. In other cases unspeakable thing will have been done to people who intend us harm with or without gains to the greater good. [Anybody who suggests that torture does not work should look at what the Gestapo managed to achieve in, for example, France and the Netherlands. Put another way, if being nice was always the most effective option, we would all have evolved into angels].

      On the other side of the coin, there will be highly ethical lawyers who fight to expose serious wrongs done to their clients – surely an aspect of the “old liberties” folks to the right bang on about on these lists? – as well as deeply venal lawyers who will seek to milk whatever they can out of the system by defending highly dangerous clients. As usual, there will be many shades in between.

      In short, all the article really shows is that folk who claim that human affairs are essentially binary massively underestimate the complexities of social reality. Again put another way, it is lot easier to be a journalist (or a participant in lists like this!) with a political angle than it is to be in government actually trying to run the country!!! Merry Christmas.

    • disqus_QtzC3LHMJC

      The Police and security services shafted Gordon Brown. It should not be allowed to happen again.

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