Anthony Peto QC: A very un-British Bill – my response to Robert Buckland MP.
Conservatives are supposed to defend ancient rights. In their hands the great principles of English Law such as "innocent until proven guilty" and the rules of Natural Justice should be much safer than with progressives who openly seek to sweep away ancient rights to build a new order.
Yet it was John Major who began the present un-conservative trend when he abolished the right to silence - a key element of the presumption of innocence. If a man is accused, it is for the prosecutors to make the case against him. Nothing should properly be inferred from his refusal to co-operate. So it used to be, but no more.
And now it's Ken Clarke who is sweeping into the trash can of history the principle of open justice. He is seeking to introduce secret courts in circumstances where "national security" is at stake. What does "national security" mean in such a context? Anthony Petro QC tells us in the linked article that evidence about a confession having been extracted by torture
...was successfully suppressed by the government on the grounds that it would damage national security...
Not exactly the most encouraging example.
Clarke tells us that we need secret courts to protect our intelligence sharing relationships with other countries. David Anderson QC, the independent reviewer of Terrorist Legislation, has branded that a "scare tactic".
Former DPP Lord Maconald has said that
Mr Clarke’s comments look like a smokescreen for plans which are aimed not at keeping the British people safe, but at sparing the embarrassment of the security services when they get mixed up in wrongdoing. Instead of promoting this thoroughly un-British legislation, which is designed to make our courts secret as though we were living in Europe in the 1930s, Mr Clarke and his colleagues in government should concentrate on holding the security agencies to account when they break the law.
Lest you think that these are just the voices of lily-livered sympathisers with our enemies, consider the words of the former top legal advisor to the British Army in Iraq, Colonel Nicholas Mercer
The justice and security bill has one principal aim and that is to cover up UK complicity in rendition and torture. The bill is an affront to the open justice on which this country rightly prides itself and, above all, it is an affront to human dignity.
The fact that some of those individuals who are complicit in rendition and torture can not only assist in the drafting of the bill but also vote to cover their tracks is a constitutional scandal.
The bill attacks the sacred principle of the Rule of Law that "be you never so high, the law is above you." It removes a citizen's right to bring a civil action against high officials for violations of their personal rights. As Anthony Peto QC says,
These rights are so fundamental that for centuries they have been called the rules of “natural justice”. This brand of justice has “Made in England” stamped all over it. It is our proudest and most enduring national product. This Bill would tarnish the brand for ever.
Could there conceivably be anything less "Conservative"?
Why can't our security services, like those in other countries, give evidence in court? If that threatens the secrecy of their activities, they can give evidence from behind a screen and via a voice changer, provided the judge is duly satisfied of their status. Then their evidence could be tested, they could be cross examined and justice could be done. Yet the British State prefers to screen them from scrutiny. It prefers to suppress evidence of their wrong-doing. It is entirely out of its box; a self-regarding beast operating in its own, not the national, interest.
I have never been more sure that the greatest enemy of my liberty is the British State. Nor more sadly aware that this does not vary according to the politicians in charge. There could be no better evidence than this odious bill in which the state seeks to protects its own at the expense of those who are supposed to own it. It rather suggests it thinks it owns us.