Sir David Davis criticises Justice and Security Bill in the Mail on Sunday


David writes for the Mail on Sunday asking ‘What IS the point of the Lib Dems if they back new law that protects torturers?’

“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.

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.

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?

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?”