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Nick Harkaway

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Illiberal Democrats

Posted: 04/04/2012 16:16

Disclosure: I should state for the record that I am married to Clare Algar, the Executive Director of the small but plucky band of heroes known as Reprieve. This speaks to my possible bias, but also to a basic understanding of what's at stake; it was my good fortune, for example, to discuss the underlying issues with the late Tom Bingham, Lord Bingham of Cornhill. If you take an interest in the idea of justice and the nature of a free society and have not read his book on the rule of law: run, don't walk, to the bookshop and order it immediately. It is a clear and elegant statement of what the rule of law is and why we should cherish it.

Reprieve, meanwhile, is a human rights legal organisation of around twenty five people which punches ridiculously above its weight. The charity handles death row cases around the world, getting Brits out of appalling situations in countries where very bad things happen, and also deals with the 'war on terror'. The latter part has included persuading the US authorities that a confused teenager was not an Al Qaeda financial mastermind, and that the man who lost an eye during his detention was not in fact the dead Chechen leader "Walid" but Omar Deghayes. More well-known, of course, is the case brought on behalf of Binyam Mohamed which exposed evidence of his treatment at the hands of the US - after already having been grotesquely tortured in Morocco - and which has led to the new government's present attempt to change the law in favour of a star chamber in which ministers cannot be embarrassed or made to look like monsters, even if they deserve it.

So that's where I begin. I do not propose that everyone in Guantánamo or its evil twin at Bagram is innocent. I just don't believe we should incarcerate people without trial and torture them or facilitate and profit from their torture. It's vile and it doesn't even work. It makes us enemies - deserved ones, alas - and it cheapens and sullies what we strive to be, all for the sake of information we can't rely on which, if true, we could probably have had faster by other methods.

Which brings us at last to the point of this post (sorry, but you really do need the background): this coalition, which promised to do away with Labour's ugly authoritarian approach to the law, proposes to introduce a number of changes to the legal system. These changes are illiberal, unjust and unworkable, and they are part of a wide streak of instinctive control freakery which runs through this government. Don't look at the Green Paper on Justice and Security alone - look at it alongside the Communications Capabilities Development Programme [2].

The CCDP, as the Telegraph newspaper recently pointed out, is essentially a revival of Labour's ill-fated Intercept Modernisation Programme, which both Tories and Lib Dems spoke against in opposition. It calls for providers of mobile phones and Internet access to keep logs of every action made online, essentially equivalent to requiring the Post Office to keep a note of the sender and addressee of every letter and parcel. It would also keep a record of where a given message or call was made, allowing the plotting of personal habits on a map. This is not, incidentally, a counter-terror initiative. Terror investigations already get access to this sort of thing when they need it. This is for everything else. And Nick Clegg seems to be perfectly okay with all that, thus reducing to zero the chance of my ever voting for him again.

So, back to the Green Paper on Justice and Security, which, with the sort of Orwellian flourish traditional in recent government nomenclature, is neither likely to increase access to justice nor to enhance security. Rather, it makes the government's job easier at the expense of the citizenry's legal protections. It protects the government from the possibility that, as in the Binyam Mohamed case, judges might order them to produce what they know in order that a trial should be fair, at the expense of their perceived right to avoid a merited public shaming.

This is about the creation of a system which can deny a plaintiff a fair hearing when that fairness might upset a foreign intelligence agency or trouble the minister. It is the dismantling of a key part of our criminal justice system and the undermining of a key tenet of our jurisprudence.

The paper calls for a setup in which government misdeeds are examined in secret. We already have a system of 'special advocates' in which approved defenders represent a client who may not know the evidence against him. (See how that goes? I accuse you of something, but I won't tell you specifically what it is. Your lawyer, dealing with a span of your life which may be years long, has to defend you without asking you what you were doing in a particular day, or asking what witnesses you would call to rebut allegations.) In this new context, what a secret court system means is that the government's own wrongdoings - and sadly there seem to be quite a few in this arena - cannot effectively be scrutinised by those to whom wrong has been (or may have been) done. Understand, this isn't only about terrorism or incidences of torture, but also cases which might be brought by the families of soldiers killed or injured as a result of inadequate equipment. What the Green Paper proposes to do is place the government beyond reach of its own court system - something which is simply and in the most profound way undemocratic.

Put these two things together and you have a gloriously complete structure for bad governmental behaviour: a population monitored at all times, most especially in their communications with one another and their access to information, and a secret court system which can be invoked to prevent plaintiffs against government from hearing the government's case, and even accused persons from hearing evidence brought against them. It's a world of judicidal murkiness in which the power of the state is hard to interrogate or even assess. And lest you imagine that such great powers must inevitably be used responsibly, do remember the go-round we had with evidence being witheld in the 90s: innocent men went to prison because a government didn't want to confess its sins. And remember, on a more ludicrous note, the bold deployment of anti-terror laws by local councils to prevent that terrible jihadist menace: fly-tipping.

We simply cannot afford to allow our government to go unscrutinised, most of all in amid the bleak seeming imperatives of the 'war on terror'. It's not that they can't be trusted with that sort of power; it is that no one can. Its very availability creates rot. We must not surrender the Rule of Law to the rule of ministerial fiat, or the tradition of fair trial to the convenience of the security machine.

 

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