The UK's coalition government of Tories and Lib Dems have now pushed through legislation creating secret courts that will protect the State at the whim of Ministers and the Secret Services. It is an outrage.
Anthony Barnett writes: Imagine a country in which the state has access to all the personal communications of all citizens and, thanks to this official mastery of the electronic environment, access also to all personal files and photographs, which it can survey without a warrant and at the whim of the police and secret services, whose penetration by corporate corruption is well documented. Imagine the authorities of this country then passing legislation which gives those same authorities the right to claim any issue that exposes the behaviour or mis-behaviour of those same authorites to be an issue of 'national security' which cannot be exposed in court. Imagine, as a handy add-on, those authorities being able to borrow the interrogation teams of 'lesser races' so that they can exercise the use of torture while claiming clean hands, provided their collusion is not exposed. Who could we be talking about? Putin's Russia? The 'new' China? They should be so lucky. Say hello to a Britain ruled for the first time in living memory by a government forged with the support of Liberals.
Tomorrow, Monday 19 November 2012, the House of Lords, better called the House of Cronies as even hereditary aristocrats would have spat out such a craven submission to the secret services, will be whipped into passing the Justice and Security Bill. If unamended, this will create a system of secret courts undermining the principles of justice as patiently explained by David Davis MP in his article below. To smokescreen their intentions the denizens of the secret state have renamed their intentions as 'Closed Material Proceedings'. For a forensic examination of what the apparently harmless initials CMP will mean should they be branded into the British judicial system see the clinical exposé by Tim Otty we ran in April.
On its own the Bill is an appalling assault on principles of liberty as it threatens to extend impunity to the British regime. At the same time the regime is planning a massive extension of its powers with the Communications Data Bill. For an eloquent assessment of the consequences see this Observer column by Henry Porter. It is the combination of the two pieces of legislation that is so toxic. The Communications Bill hugely expands the powers and reach of the State while exposing it to being abused and corrupted by corporate interests, especially in the age of marketisation. At the same time Justice and Security legislation being voted on tomorrow significantly enhances the ability of the State to cover up its own malfeasance. Together, if passed into law, they provide the two legs on which dictatorship walks: an arbitrary capacity to act against citizens at any time or place and the ability to do so in a lawless way.
If things are so bad, why are things so quiet? Where is the opposition? Its absence is not proof that there is no problem, but that the rot has gone deep. That many of the public know this and are just giving up hope is suggested by the historic low turnout in last week's elections. There is a protest campaign against the Communications Bill - Stop the Snoopers Charter - organised by the Open Rights Group and Index on Censorship, who are co-hosting an event in London's Free Word on 24 November, backed by Liberty, GreenNet and others. But there is not yet a high energy alliance like the Convention on Modern Liberty we helped to run in 2009.
Which brings me to the Liberal Democrats. Their support was crucial then and it defies belief that the leaders of a party which pinned its reputation on its integrity should abandon their fundamental principles for a few weeks of high office. I had assumed that when the party conference this year voted down the leadership and opposed the Justice and Security Bill that that would decide things. After all, the other parties had abandoned internal democracy leading to the decomposition of their membership. Why should the Lib Dems discard such a vital asset - and one so important in a smaller party? Apparently how their mere members vote is of no consideration to the Lords of the Liberal Democrats. At the tug of their ermine they will follow their leaders like shameless scuttlebugs, preferring office to preventing the screams of innocent victims.
Which brings me to the BBC. Why isn't the unpicking of the right to a fair trial, that can be traced back to Magna Carta, an item on the news? Part of the reason is that the Lib Dems and Labour refuse to oppose it in the way that forces the issue into the headlines as a 'story'. But an equal part lies with the compliance of the press and broadcasters to the campaign of lobbying and persuasion mounted by the Security Services, journalist by journalist, editor by editor. It is astonishing. The 'war' against Leveson mounted in full pre-emptive fashion as Hugh Grant predicted is premised on the idea that any legal powers held by the state over the press are in themselves bound to undermine our fundamental freedoms, even if they are merely constituted to allow the poor and weak to effect redress against abuse. Yet the same press, the Murdoch titles especially as the Mail group is more consistent on liberty, regards a massive enhancement of State power over everyone else as benign. This then feeds back into a cautious Corporation and we get what is in effect a media encouraged fatalism towards the development of a surveillance society.
Which brings me, finally, to David Davis MP, whose article from today's Mail on Sunday is cross-posted below. A right-wing free-marketeer, Davis is remarkable for putting integrity above love of office. In 2008 Gordon Brown forced the House of Commons to support legislation that would have permitted 42 days detention without trial. He was accused from his own benches of cajoling and bribing the 'honourable members'. The Conservatives under Cameron voted against the Bill but conceded the argument, that the British public supported this grotesque perversion of justice. Appalled at his own party's stand, Davis resigned from his position as shadow Home Secretary and from his seat and forced a by-election, storming out of the House of Commons when he was prevented from reading his statement within it. The country faced a triple onslaught on its liberty, from detention without trial, from the introduction of ID cards and from the surveillance society, he cried, and now the Commons, the last bastion of its defence, has been suborned. I applauded his extraordinary action at the time, and counter-attacked those who derided him, and later canvassed for him in his by-election which he won with Lib Dem support. His action galvanised opposition, swung public opinion against 42 days detention, helped inspire the Convention on Modern Liberty and contributed to the articulation of the principled element of the Coalition between the Tories and the Lib Dems, that was formed a year later.
Today, these principles such as they were, are traduced and ruined, as voters abandon the polling booths.
Next day PS : Peter Neumann has tweeted me to say that Britain is nowhere near a dictatorship. This morning Ken Clarke MP who is pushing through the legislation for the government has been on the Today programme where his last words on the subject were that if he was a member of the CIA he'd want the legislation very much! There is a good short account of the way the legislation brings secrecy into civil proceedings in a way that can prevent citizens from holding the state to account in the Guardian by Philippe Sands and Dinah Rose. This is the point that Peter Neumann has not yet grasped. I'm not arguing that Britain is a dictatorship, that would be silly and anyway if it was I'd not be allowed to argue the point. What I'm saying is that this is the way it comes if it is not stopped - which I believe it can be. The critical thing to grasp here is the momentum and drive behind the repeated attempts this century to expand the powers of the state while removing it from legal checks. Thus the Communications Bill unarguably expands official capacity to identify, categorise and track citizens using the facilities of commercial providers. If this information is abused, for example by the CIA, the Justice and Security Bill will allow the government to cover up the wrong-doing if challenged, by defending itself with secret evidence. The combination of extending state power and preventing it from being openly challenged in court if it is exercised illegally creates the conditions for lawless government from which dictatorship grows.
David Davis MP writes: In the aftermath of the 9/11 attack, British resident Binyam Mohamed was picked up by the Pakistani secret police and given to the CIA. He was subjected to systematic torture, ranging from being held in painful stress positions for days on end, to having his genitals cut with scalpels.
Then he was sent to Guantanamo where he was kept for years. All of this was done, it is now known, with British Government complicity. Eventually he was declared innocent of any crimes, and released.
Most of these events remained shrouded in secrecy until Mohamed brought a court case against the then Labour Government. For years David Miliband and the intelligence agencies tried to stop the courts disclosing the Government's involvement in the rendition and torture regime.
The House of Commons was misled. The court was lied to. MI5 was criticised by one of the senior judges for its lack of candour, and Miliband tried desperately to cover up the hideous story. It nearly succeeded.
The English Court of Appeal was about to accept the Government's arguments, when an American judge revealed what had happened to Mohammed in far more detail than the court had ever considered publishing.
So it issued a carefully phrased, very limited criticism of what the Government had got up to. Nobody in their right mind would have thought it a breach of security, but it was undoubtedly embarrassing.
The lesson that should have been learnt from this sorry tale is that State secrecy should be used to protect real secrets essential to national security, not to cover up crimes committed by agencies of the State. Instead, the current Government has decided to try to gag the courts. Under a new Justice and Security Bill, it is proposing to give the power to Ministers to decide which evidence cannot be heard in court, even when the case is against that same Minister!
The House of Lords will debate this proposed law tomorrow, and the Government parties, including the Liberal Democrats, are going to be whipped to vote for it. If passed, this law would open the door to more secret court procedures in Britain. In certain narrowly defined cases relating to terrorism and immigration we already have secret courts. In them defendants can be tried without knowing why they are in the dock. Their lawyers are not able to discuss the case with them.
These secret courts have operated in the UK in a very limited way since 2005. Labour used them to impose control orders – the controversial measures that put terrorist suspects under house arrest if they could not be deported. The system was unfair from the outset, but few protested because so few people were affected.
The Justice and Security Bill would change that. It would extend the system of secret courts – now renamed Closed Material Procedures – from terrorism cases to any civil case where the Government claims 'sensitive information' is involved.
Of course some information must be kept secret in the national interest.
Despite this, the Government now wants to strip judges of this power and hand it to the Home Secretary. This is a dangerous development. In court cases involving secret evidence, the Government is almost always one of the parties involved. So how can it be fair to let Government Ministers influence what evidence the court can see?
However, we already have a fair system – called Public Interest Immunity – which balances national security with open justice. Under these rules, a Minister must ask the judge for permission to withhold confidential information. The judge then examines the evidence and decides whether or not it should be kept secret. We have used this system for decades, and it has served us well. Ministers cannot point to a single case where judges have revealed documents that harmed our national interest.
The Government argues that Public Interest Immunity is unfair because evidence can be excluded from proceedings if a judge decides it is too sensitive to disclose. They argue it is fairer for judges to see all the evidence in private than to hear most of it in public. As an argument it is deceptively persuasive, but fatally flawed.
If the Government keeps its evidence secret, anyone who sues it cannot challenge that evidence. How can you identify inaccuracies in documents you cannot see? Or cross-examine a witness who never takes the stand? Under these conditions, the 'evidence' is not worth the paper it's written on. What is more, letting Ministers choose what evidence is heard in secret could see them playing politics with justice – claiming information is 'sensitive' when really it is merely politically embarrassing.
Take the case of Libyan Abdel Belhadj. A critic of Colonel Gaddafi's murderous regime, he fled the country with his family. In 2004, as a favour to Gaddafi, MI6 had Belhadj (and his pregnant wife) abducted and returned to Libya, where he was imprisoned and brutally tortured.
Belhadj has since sued the British Government, but we know about his treatment only because, by chance, MI6 papers were found in the office of Gaddafi's spy chief, abandoned during the chaos of the Arab Spring.
It is exactly this sort of wrongdoing that the Justice and Security Bill would keep quiet. Any evidence relating to the intelligence agencies would be classed as 'sensitive'. The court hearing the key parts of the case would be heard in secret, with no lawyers, victims, press or public present to challenge or report what was said.
In the Lib Dems' Election manifesto, Nick Clegg promised to 'restore and protect hard-won civil liberties'. Yet their peers have been told to back this Bill. They ought to defy the whip and vote down this dreadful proposal.
I am cross enough with my own party for swallowing such an illiberal proposal. But if the 'Liberal Democrats' are not prepared to oppose a measure that undermines the fundamentals of both liberty and democracy, then what exactly is the point of them?