Wednesday 17 November 2010

The Al Rawi case settlement: security and the justice system

The government has now entered into a mediated settlement of litigation which alleged British complicity in torture and abuse.  The government hopes that the settlement will "draw a line under" the matter - see The Guardian 16th November 2010.  The Court of Appeal (Civil Division) judgment in the "Al Rawi" case is here and it was on appeal from a decision of Silber J - here.

The statement by Kenneth Clarke (Secretary of State for Justice) may be seen here - Parliament - Guantanamo civil litigation settlement statement.   Mr Clarke emphasized that the government does not condone torture and does not ask others to do it on our behalf.  The settlement was achieved by mediation and is subject to a legally binding confidentiality agreement.  The alternative to this would have been protracted and extremely expensive litigation and, so it was argued, would have been damaging to Britain's security interests if various matters were revealed in court.

A further point made by Mr Clarke was that the government is planning to publish a "green paper" in 2011 which will contain proposals aimed at dealing with issues of national security when raised in civil proceedings, inquests or inquiries.  A system is being planned in which intelligence material that is relevant to a case would be seen and heard in secret hearings and withheld from interested parties and their lawyers.  This would seem to envisage a further extension in English law of the use of "special advocates." See  Guardian 16th November 2010.  The Green Paper would also contain proposals relating to oversight mechanisms of intelligence work.

In July 2010, the Prime Minister announced an inquiry under the Chairmanship of retired Lord Justice of Appeal Sir Peter Gibson - see here.   At the time, there was a view that someone else should have been appointed as Chairman given that Sir Peter is the Intelligence Services Commissioner and might therefore be seen as, to an extent, too close to the intelligence services.  It is said that the inquiry cannot commence its work until the Metropolitan Police reach a decision relating to possible criminal charges against an MI5 officer and an MI6 officer.** (see Note below) 

Lord Macdonald (the former director of public prosecutions) has said in a speech to the Royal United Services Institute conference on intelligence oversight , that members of the Intelligence Services Committee should be appointed by parliament rather than the prime minister. It should also question MI5 and MI6 on operational matters.  This proposal ought to be taken seriously by the government.  A further speech to this conference was delivered by Lord Justice Gross - "National Security and the Courts."

Then there is the on-going inquest into deaths arising from the 7th July Bombings in London.  The Acting Coroner (Lady Justice Hallett) ruled that MI5 officers could not give evidence in secret - see BBC 3rd November.  The Home Secretary announced that a judicial review of that decision would be sought - see BBC 9th November

Finally, Amnesty International has issued a report which criticises European institutions for failing to hold countries such as the UK to account for alleged involvement in rendition and secret detention - see "Open Secret: Mounting evidence of Europe's complicity in rendition and secret detention."

For the near future, it seems unlikely that a line can truly be drawn under any of these important issues even if the government has reached an expensive (and controversial) settlement in the Al Rawi case.

** Note: Late on 17th November it was announced that there is "insufficient evidence" to proceed against an MI5 officer - see The Guardian.   The statement from the CPS is very brief.

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