Has David Miliband breached the rule of law?

John Jackson
8 February 2009

John Jackson (London, Mishcon de Reya): On Thursday I wrote an immediate analysis of the 'The case of Binyam Mohamed'. It raises fundamental issues about how we are ruled and whether, indeed, we enjoy the rule of law. 

An examination of extensive exchanges in Parliament last Thursday reported in Hansard makes it clear that David Miliband now claims the US authorities did not make threats in relation to the sharing of intelligence information and that he had not raised this aspect of the BM case with colleagues in the US since the inauguration of President Obama. This is so astonishing as to defy belief when placed next to what the Divisional Court said in its last judgement published last Wednesday. I quote:

'The Foreign Secretary's certificates - - - make clear that the United States Government's position is that, if the redacted paragraphs are made public, then the United States Government will re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided. It was and remains (so far as we are aware) the judgement of the Foreign Secretary that the United States Government might carry that threat out and this would seriously prejudice the national security of the United Kingdom.'

Predictably, the lawyers of Binyam Mohamed are drawing what the foreign secretary has said to the attention of the Divisional Court and are asking for the matter to be re-opened.

Behind this lies an issue that needs repeated emphasis until the public understands it: we are now witnesses to a conflict that strikes at the foundation of government and how parliament and the executive must respect the rule of law. 

There is no need for me to expand on this; It is all to be found in important part of the court's last judgement set out below. But it does need to be much more widely known:

'. it must be and is the duty of a judge in upholding the rule of law to ensure that not only is a particular dispute between parties decided openly, but that matters that come to the attention of the court in the course of a hearing or the proceedings which prima facie constitute an infringement of the rule of law are dealt with openly. ..It is the upholding of the rule of law that is a factor of the greatest public interest in this case, given the allegations against officials of the United States Government and the role of officials of the United Kingdom in facilitating what is alleged.'

'.we have reminded ourselves of our initial view that the redacted paragraphs should form part of our first open judgement as essential to open justice. ..That view was formed in the light of the fact that there was nothing in the redacted paragraphs that would identify any agent or any facility or any secret means of intelligence gathering. Nor could anything in the redacted paragraphs possibly be described as "highly sensitive classified US intelligence". It follows that it was (and remains) our view that the ordinary business of intelligence gathering would not be affected by putting into the public domain the redacted paragraphs as they contain only a short summary of what was reported to the United Kingdom authorities by the officials of the United States Government as to what they say happened to BM during his detention in Pakistan in April and May 2002.'

'..it is our clear view that the requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture and its historic link ..to the necessity of open justice.'

What should concern us all is encapsulated in the emphasis placed by the court on the importance of the rule of law and how, by inference, the court interprets that concept.

Having, unlike most other democracies, no written constitution we, and our fundamental freedoms, are very vulnerable if all the powers in our State, particularly Government and Parliament as well as our judges, do not accept and defend the rule of law as standing above all other considerations. It is crystal clear what the Divisional Court believes the rule of law demands and what it would have preferred to do. It is increasingly unclear why the Foreign Secretary impeded the court or, indeed, whether he paid great attention to the matter and the wider implications of what was doing.

I repeat my earlier observation. This case, and what underlies it, will surely feature in the discussions about our freedoms at the Convention on Modern Liberty on 28th February and thereafter, this matter is far too important to be left to politicians and their official reporters

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