Dr Liam Fox is Conservative MP for North Somerset. Follow him on Twitter.
The images of hooded, shackled, boiler-suited detainees in Bagram and Guantanamo which shot round the world in the years after 9/11 undoubtedly had a widespread effect. For some, ‘National security’ became a dirty word. Doubt crept in about the integrity of our services, and about the rules under which they operated.
For Conservatives in particular, that period raised difficult, and without exaggerating the point, painful questions. We have long been proud of our services: tough and effective on the ground, respected the world over. We have also been immensely proud of the concept of British justice which is the bedrock of our success as a nation. Above all we have jealously guarded our reputation as a nation renowned for a deeply imbued sense of fair play.
But these assumptions were thrown up in the air amid the suggestion that we might have been involved in any form of mistreatment. Adding to that shock, we also have had to come to terms with the fact that our courts are simply not equipped to deal justly with allegations of this nature.
In one of his earliest statements to Parliament in 2010 the Prime Minister made clear that this situation could not continue. “The longer these questions remain unanswered, the bigger will grow the stain on our reputation as a country that believes in freedom, fairness, and human rights.” He set out a clear plan to stop the rot and “restore Britain’s moral leadership in the world.” This is what the important Justice & Security Bill, which reaches its Report Stage in the Commons tomorrow, seeks to achieve.
At the centre of the Bill lies a realisation that the world of security and intelligence has changed beyond recognition since the days when even the services’ existence went unavowed. They are now governed by statute, and subject to judicial review. It is neither acceptable nor possible for them to avoid proper scrutiny either in the courts, or by Parliament. Yet, the practical tools both of these institutions required to perform their scrutiny functions had been utterly neglected.
The result has been an absolute car crash: civil damages claims are now able to be brought against the agencies, but they cannot be resolved because the courts are not able to put in place the safeguards that are needed if they are to look in detail at national security evidence.
Let me emphasise that this is evidence which could cost the lives of sources, agents or reveal intelligence gathering techniques if released. It is unthinkable for any country that information which could reveal intelligence techniques, or cost the lives of our agents and sources could be released into the open. The only way of examining it is in a secure, closed environment, currently unavailable in our civil courts.
The unacceptable consequence is that the Government is unable to mount any defence in court, and so we have not actually got to the bottom of any of these cases in which abuse has been alleged. Worse, we have the spectacle of million pound taxpayer payouts going to individuals who have not had their case tested in court. There is all too clear a risk that some of this money will make its way to terrorist organisations. There are only a handful of these cases, but they are of unprecedented seriousness, and their number is growing. There is a serious risk that Britain is becoming the destination of choice for this sort of litigation.
As a former Defence Secretary I am particularly appalled at the unbearable pressure this is putting on our vitally important intelligence sharing relationships. Just think about it. This handful of cases for which the courts have no satisfactory remedy all rest on ultra-sensitive national security evidence. Our allies are looking on with horror at this unpredictable situation.
At the Ministry of Defence I was daily aware of the extent and constantly evolving nature of the threats posed to our country – far more aware than most of the public will ever be or indeed would want to be.
Our number one tool in fighting these threats are the over 200 partner intelligence services we work with around the world. Towering above these, responsible for a huge proportion of all of our counter terrorism intelligence, is our partnership with the United States.
These partnerships save lives. Without them the al-Qaeda underwear bomb would not have been foiled. We would not have found that printer device at East Midlands Airport on 29 October 2010 and it would have exploded over the eastern seaboard of the United States. We would not know about Iran’s secret nuclear facility at Qom.
Yet by failing to provide the courts with the adequate tools they require to actually do the job we have asked them to do, we are putting these relationships in mortal danger. The US in particular have put measures in place to restrict intelligence exchanges. But our own agents and sources are becoming windy too. We appear to be seeing a chilling in the global intelligence exchange.
By ensuring that our security and intelligence agencies are subject to the rule of law not just in name, but in practice too, the Justice & Security Bill should resolve these extraordinarily serious problems.
There are those who say that they do not want the Bill, who would prefer silence on questions which go to the heart of what we stand for as a democracy. This may provide good rhetoric but it is misguided. Open justice is an extremely important part of our legal system. But as Lord Justice Haldane has said, it is subject to the “yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done”.