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After some years of legal questions and challenges, about the safety of various Middle Eastern countries in particular, the government (originally New Labour) attempted to negotiate so-called ‘Memoranda of Understanding’. These MOUs were basically designed to be gentlemen’s agreements rather than legal commitments with those countries, Jordan included, in an attempt to extract promises not to torture those deported from the UK. The aim was to pacify and persuade UK and European Human Rights Courts that our government was adequately protecting those it was about to deport.

This approach was understandably controversial. If a country cannot be trusted – on the basis of, for example, credible reports from agencies such as the US State Department, UN monitoring bodies and Human Rights Watch – to respect international multilateral treaties and conventions against torture, why would its leaders be trusted to honour a convenient little bilateral deal stitched up for the convenience of a British Home Secretary trying to be shot of a high-profile undesirable? There was and is a real fear on the part of Liberty and others that these pacts aren’t worth the paper they’re written on. Also,
an international human rights monitor of any integrity would surely refuse to police such a specific agreement. It’s difficult to imagine who would volunteer to go and confirm the good health of a notorious suspect recently deported from Britain while listening to the screams of a torture victim in the next cell.

Nonetheless, there was a rare precedent for deals of this kind. The United States still executes people, often after lengthy periods on death row. This is anathema to European notions of common decency and human rights. For some years suspects or defendants facing capital charges in the US have been extradited there only on the basis of an understanding with our own government that the death penalty cannot apply. To date this seems to have been honoured.

Abu Qatada’s most obvious return destination was Jordan, of which he was a citizen. For years the torture and fair trial record of this monarchy raged in our domestic courts as well as the Human Rights Court in Strasbourg. Eventually, however, coalition Conservative Home Secretary Theresa May announced in 2012 that she had secured not just a deal with Jordan in relation to this particular terror suspect’s treatment but crucially, a change to its constitution banning the use of evidence obtained by torture. This development was obviously instrumental in Abu Qatada’s eventual departure from Britain a year later. Theresa May could arguably have claimed a victory for human rights and the rule of law at home and abroad. Not only had she deported the suspect while respecting the previous findings of our courts, she had secured a change to the law of another country, way beyond the reach of the European Convention, that ought to make torture just a little less convenient or palatable in that jurisdiction. Sadly and perversely, in my view, she stole moral defeat from the jaws of victory and spoke instead of ‘reforming’ the Convention and perhaps pulling out of it altogether.

To return to Binyam Mohamed, his case also demonstrated how our government could hide behind the ‘control principle’,
whereby intelligence shared with an ally is not revealed without the originator’s permission, to conceal its own bad behaviour. In this instance, in 2009 government lawyers argued that paragraphs of the court judgment that criticized MI5 on account of its awareness of Binyam Mohamed’s ill-treatment could not be made public because of the control principle. However, it also quickly emerged that the Foreign Office had conveniently not even bothered to ask permission of the relatively young Obama administration for the relevant material to be made public.

This highlighted the symbiotic but toxic relationship between secrecy and torture and the inordinate lengths that governments and securocrats will sometimes go to in the avoidance of scrutiny and accountability, whether to public opinion or even the law. When the judicial criticism of the government’s attempt to suppress evidence was eventually published in February 2010, certain parts of the intelligence and political establishment were nothing short of furious and this indignation festered away until beyond the 2010 general election. It found eventual expression (some policies, practices and powerful personnel are unaffected by democratic elections) in the Justice and Security Act of 2013 – a piece of legislation which has absolutely nothing to do with either justice or security.

The Justice and Security Act replaces fair and even-handed civil trials in which a government, military, ‘spook’ or police party to litigation participates under the same rules as their opponent, with the ‘closed material procedures’ of the Special Immigration Commission that were used to perfume internment in Belmarsh and then punishment without charge under control orders and their replacement, TPIMs. Under this procedure, the ordinary person, usually someone making a civil claim in relation to some kind of alleged bad behaviour by the state, finds herself shut out of large parts of the proceedings, sometimes for several days of argument, while the lawyers on the other side get to present evidence and argument in secret to
the presiding judge. Hardly equality before the law. Instead it’s a bit like a football match where one side is repeatedly ordered off the field so that the other team can be alone with the referee on an empty pitch with an open goal. Successive governments have tried to argue that the presence of the judge operates as an adequate safeguard of justice. But how can that be? The judge doesn’t know what the claimant would have argued if she were in the room and with sight of the case against her. The referee cannot substitute for the team that isn’t even in the park.

Just as politicians can undermine the judiciary with dangerous, disrespectful rhetoric about unwelcome judgments and the unelected status of the judiciary, they can equally, and invidiously, undermine the rule of law by co-opting it and making it too cosy and complicit with administration in general and the secret state in particular. Why should a kid on a council estate respect a magistrate’s order if a prime minister won’t respect the highest courts in the land?

So much for the ‘Justice’ part of the Act’s title. What about the ‘Security’ ambition? When, in the past, secret commissions were substituted for fair trial courts it was invariably in the name of some kind of practical security outcome. The original SIAC procedure aimed to remove foreign national terror suspects from the country. Belmarsh was about putting them in prison while control orders and TPIMs placed terror suspects, including British ones, under a form of house arrest or other restrictions in the community. Liberty has argued that these policies are profoundly unfair and therefore ultimately undermine security. They hand martyrs of injustice to the terrorist propagandists waiting to pounce on any apparent hypocrisy on the part of democrats. However, I have to concede that more immediately and narrowly, at least in the very short term, these devices can be said to pursue some attempted security goal (deportation, incarceration or restriction of movement).

Even this cannot be argued in defence of the closed proceedings of the Justice and Security Act, where all that is at stake is
money, for example in the form of compensation for suspects who were rendered and tortured in freedom’s name. This is about civil suits in civil courts. Trials in which, the government argues, it cannot adequately defend itself against allegations of wrongdoing without compromising national security and so would have to settle claims that it could fight and win on a secret one-sided playing field. What is strange about this argument is that government cannot give a single example of the courts behaving insensitively to security concerns or ordering the disclosure of evidence that would put lives at risk. If a relevant piece of evidence in a civil claim were too sensitive to disclose, the courts have a long track record of protecting it with ‘public interest immunity’. Further, it remains for the claimant to prove their civil claim on the balance of probabilities and without access to this sensitive and immune material. If the government paid out on torture claims, it must have believed that such claims had sufficient substance to be proved in court on a balance of probabilities without claimants having access to national secrets. What’s more, when this was done in response to claims from former Guantanamo detainees in 2010, no government application for public interest immunity had even been made, let alone refused.

The Justice and Security Act is a landmark piece of legislation for all the wrong reasons. In it centuries of British civil justice built on the principle of equality have been trashed for cash and the avoidance of embarrassment. As one extremely senior former spy once said to me, ‘I am not prepared to be a cash point.’ Notice the ‘I’ in that statement. It wasn’t the gentleman’s own money, after all. This is what we were dealing with. The arrogance that came with the indignation. The sad lack of humility or reflection on the part of ordinarily unaccountable people when briefly embarrassed over torture by our judges. So they duly instructed their so-called political ‘masters’ to change the law, instead of changing their own methods and practices in order to avoid similar embarrassment in the future.

Sadly, torture and cover-up were not limited to the rendition programme and the metaphysical aspect of the War on Terror. They formed a part of our country’s literal wars too. In September 2011 a long-fought-for public inquiry led by Sir William Gage – which had consisted of 115 days of hearings and heard from some 348 witnesses – found that a 26-year-old Iraqi civilian called Baha Mousa had been detained, tortured and beaten to death by soldiers of the 1st Queen’s Lancashire Regiment. He had suffered ninety-three separate injuries. Crucially, while the Ministry of Defence and its lawyers had long tried to limit blame for the scandal to a few ‘bad apples’ in the army, it was quite clear that the fault was a systemic one. The ministry itself had allowed back into use five cruel interrogation techniques which had been banned way back in 1972 by Conservative Prime Minister Edward Heath in the context of the Northern Ireland troubles. In his findings, Sir William described this as ‘corporate failure’ on the part of the MOD. The techniques in question included lengthy hooding with sandbags; subjecting the prisoner to prolonged periods in stress positions (such as being made to sit in an imaginary chair); long periods of sleep deprivation; ritualized abuse such as kick-boxing people around the room, and other forms of beating.

When the case was litigated, the House of Lords ruled that the Human Rights Act applied to places beyond our shores over which the UK government had control, a view that senior MOD legal advisers fought as hard as they did the setting up of the Gage inquiry itself. The decision in
Al-Skeini and Others v Secretary of State for Defence
was as important for the protection of military personnel serving abroad as it was to civilian prisoners, and is resisted and used as an anti-human rights gripe even to this day. Once more, accidental and perhaps unlikely human rights heroes distinguished themselves as much as those at the heart of the security establishment brought shame upon their professions and institutions. Lieutenant Colonel Nicholas Mercer, now a Church of England vicar and a
self-identified ‘Shire Tory’, is an obvious case in point. The army’s chief legal adviser in Iraq following the 2003 invasion repeatedly questioned the army’s use of cruel interrogation techniques as contrary to Human Rights Law. As with many US military lawyers who did their best to stand for democratic decency, even in Guantanamo, Lt Col Mercer stood up to his own hierarchy and paid a high personal and professional price.

In the spring of 2003 and six months before Baha was beaten to death, Lt Col Mercer had advised that a judge be sent to Iraq to supervise the handling of prisoners.

‘My job was to protect soldiers from legal proceedings and the degradation of human beings,’ he told
Guardian
defence and security journalist Richard Norton-Taylor after the Gage findings in 2011. But Mercer’s advice wasn’t merely ignored. His army career was ruined. He says that he was told to keep his mouth shut and even threatened with a complaint to the Law Society by the chief MOD legal adviser, Martin Hemming, who shamelessly briefed against Mercer as a ‘flake’ and a fantasist, even in later meetings with me. It’s a particularly nasty tactic to threaten inconvenient lawyers with professional discipline, like ‘playing the man and not the ball’. It would seem that the lawyer as ‘company man’ is not a tradition unique to the CIA or USA. Campaigning solicitor Phil Shiner, who spent many years of his life representing Baha Mousa’s grieving family and securing the Gage inquiry, was similarly subjected to a campaign of more than whispering contempt. Subsequent cuts to legal aid, including residence requirements, will make it very much harder to bring the powerful to account for any similar abuse and cover-up in the future.

Mercifully, Mercer – who subsequently won a Liberty Human Rights Award for his moral courage and professional integrity – was eventually vindicated by the courts and military personnel are now trained in human rights values.

Not before time. My campaigning litigation colleague Emma Norton (nicknamed Brockovich in the office, after the tenacious
American campaigner against injustice of that name) currently works on behalf of the families of young dead British military personnel – both those from the infamous Deepcut Barracks and Anne-Marie Ellement, who committed suicide after a rape complaint against her own military police comrades was ignored. At every turn, Norton faces resistance from a Ministry of Defence establishment that spins and briefs the media that human rights have no place on their patch. But she isn’t arguing for a right to air-conditioning or cigarette breaks. She is arguing against inhuman and degrading treatment and unlawful killing and for justice for those, most of them young, who put their lives in peril with noble ideals at the direction of and in the care of the state.

There is of course a reason why torture and slavery are the two absolute human rights wrongs. They are two aspects of the same extreme degree of degradation and inhumanity. In 2007, we celebrated the bicentenary of the Slave Trade Act, under which sea captains were subject to fines for every slave found on board their ships. The story of the campaign for this seminal piece of legislation is beautifully brought to life in the wonderful Michael Apted film
Amazing Grace
, starring, among others, Liberty stalwart Benedict Cumberbatch (many years before
Sherlock
and the phenomenal success that followed). However, despite the vital moral statement and ambition of that legislation, it was not actually a criminal offence to hold someone as a slave in Britain until Liberty successfully campaigned for section 71 of the Coroners and Justice Act in 2009.