Ken Clarke has blamed Tony Blair’s “disastrous war on terror” for the need to introduce secret courts to protect sensitive intelligence material.
In a Guardian article, the former justice secretary says that armed conflicts begun under Blair have prompted a rise in compensation cases from former detainees who allegemistreatment.
The intervention by Clarke highlights Tory divisions over Afghanistan and Iraq after military action was launched in the wake of the 9/11 attacks. Clarke voted against the Iraq war in 2003 while David Cameron voted in favour.
Clarke uses language that is unlikely ever to be used by the prime minister. “Most people are aware that Tony Blair’s disastrous war on terror has resulted in a substantial rise in individuals, often former detainees, bringing compensation cases against the UK government alleging mistreatment,” he writes.
Clarke brands critics of the government’s justice and security bill, which will usher in secret courts, as “reactionary parts of the human rights lobby”. He says it is necessary to introduce the new measures to ensure intelligence material can be admitted as evidence without risk of exposing it to the public domain.
Under Clarke’s plans such intelligence would be heard by a judge but not by claimants or their lawyers. The judge would in effect be obliged to obey a minister’s request for information to be kept secret on grounds of “national security”.
The bill was drawn up after the court of appeal agreed to disclose CIA information which showed that MI5 and MI6 knew Binyam Mohamed, a British resident was abused and subjected to inhuman treatment while held as a terror suspect. It was also prompted by UK citizens suing the government for compensation after being held in Guantanamo Bay.
Ministers, including Clarke, argue that the bill — pressed for by MI5, MI6 and the US government specifically to stop the kind of disclosures about their activities made in the Mohamed and other civil cases — would not be used as a cover up.
The bill does not mark a “shady move” by the state to “cloak the dark forces lurking deep within government,” Clarke writes. “Far from extending secrecy, allowing cover-ups or switching off the lights, done right, this bill will for the first time extend justice into the most secret activities of the UK state.”
Clarke rallies to the defence of the plans after the Guardian reported that he would no longer be responsible for the justice and security bill after his demotion in the recent cabinet reshuffle. He will in fact retain control of the bill, allowing his successor Chris Grayling to focus on a more traditional Tory law and order agenda.
Clarke writes: “My new title of minister without portfolio has given my activities an amusing air of mystery. But still I was surprised to see that Monday’s Guardian editorial stripped me of future responsibility for what the more reactionary parts of the human rights lobby have nicknamed my ‘secret courts’ bill.”
He says he supports the changes because he is an instinctive liberal. “A stalwart supporter of the British judiciary who are the best in the world. In my opinion it is a travesty that they can’t give judgment in the very cases which raise the most serious questions about the way we are governed and the nature of our democracy.
“The result is that we have no answers to shocking allegations made against British agents. And we are potentially putting the taxpayer in the situation of paying out significant sums to individuals who could be linked to terrorism simply because crucial evidence cannot be brought before a judge.”
Clarke insists there will be safeguards to ensure there is no “mission creep”. He writes: “The judge and not the executive will have to take the key decisions about whether a closed hearing is justified. Even if they do allow a closed hearing in principle they will retain the power to order the government to disclose material, or to remove it entirely from the courtroom because it is prejudicial or not in fact national security sensitive at all. Clearly, any suggestion that these closed hearings would make anything secret which is in the public domain now is emphatically wrong.”
The intervention by the former justice secretary comes as the Liberal Democrat leadership braces itself for a backlash at next week’s conference in Brighton. The latest conference agenda, published on Wednesday, reveals an attempt to quash a motion calling for the withdrawal of and opposition to the justice and security bill.
An amendment, to be moved by the LibDem peer Lord Marks, has now been tabled backing the bill which echoes the government line. It says only that secret hearings should be used as a “last resort” and “to the bare minimum necessary to safeguard national security”.