18 February 2009

The Law and Subversion and Insurgency Suppression

General Sir Frank Kitson GBE, KCB, MC and Bar, DL wrote, "Low intensity operations: subversion, insurgency, peace-keeping in 1971. In it, he discusses the use of the law by the state (page 69).

"... [T]he way in which the Law should work. Broadly speaking, there are two possible alternatives, the first one being that the Law should be used as just another weapon in the government's arsenal, and in this case it becomes little more than a propaganda cover for the disposal of unwanted members of the public. For this to happen efficiently, the activities of the legal services have to be tied into the war effort in as discreet a way as possible ... . The other alternative is that the Law should remain impartial and administer the laws of the country without any direction from the government. Naturally the governement can introduce new legislation to deal with the subversion which can be very tough if necessary, and once this becomes law the legal services will administer justice based upon it. But the resulting situation situation is very different from that described in the first alternative because in the second case the officers of the law will recognize no difference between the forces of the government, the enemy, or the uncommitted part of the population."

So, with regard to Kitson's analysis, where is Blighty?

The first point to make is that "... [n]aturally the governement can introduce new legislation to deal with the subversion ..." which has been been done. One obvious example is the Terrorism Act 2000 (which has been discussed earlier on this blog; see, To Proscribe Or Not To Proscribe), there are also other examples.

Moving beyond the obvious point the question becomes which of the two Kitson alternatives are being employed in England and Wales?

It is extremely difficult to analyse and not as clear cut as Kitson outlines. I would argue that the latter situation; ie, the law remains impartial.

Unfortunately, the problem with this analysis is that in some circumstances the law cannot be applied impartially. This is seen when the law has to deliberate on, for example, intelligence matters. In this situation, the law is that the judges and law lords have to defer to the State. For example, take the recent decision in Corner House where it was found (in law) that the Head of the Serious Fraud Office was allowed to pull the plug into bribery and corruption allegations between a Saudi Prince and BAe. In this ruling, Lord Bingham of Cornhill at paragraph 23 says,

"On an application for judicial review the court could not assess the extent of the risk to life or to national security by those who advised the Attorney General and the Director, and the Director himself could not exercise an independent judgment on these matters (para 55). He might lawfully accord appropriate weight to the judgment of those with responsibility for national security who had direct access to sources of intelligence unavailable to him. In cases touching on foreign relations and national security the duty of decision on the merits lay with the Government, and the courts were obliged to maintain the boundary between their role and that of the Government."

An interpretation that was echoed by Lord Justice Thomas in Binyam Mohamed (BM),

"In R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, it was again emphasised that the duty of decision in relation to national security and foreign relations lay with the Executive branch of the State. (See paragraph 23)

64 The judgement as to whether the national security of the United Kingdom will be compromised in the circumstances described is a matter on which the Foreign Secretary is the expert and not ourselves.
"

The problem is that although the law can be applied impartially (Kitson's latter description); unless it can analyse the the bases upon which decisions are made; eg, Foreign relations and intelligence, the results may not be impartial.

This is simply because the expert evidence (Foreign relations, intelligence) may be a complete and utter pack of lies (recall the Matrix Churchill affair). The system does not allow for the aspect of elite theory that suggests that States collude with one another in order to murder, rob and generally suppress their citizens. Thus, decisions reached by the courts with regard to the separation of powers are tainted by the leak of poisonous statements such as, "... [it] is a matter on which the Foreign Secretary is the expert and not ourselves ...".

Update 27th February 2010. However, when the bases upon which decisions are made; eg, Foreign relations and intelligence, are analysed by the Courts we get a very different picture. This happened in the continuing case of Binyam Mohamed [2010] EWCA Civ 158 which in its dying gasps argued about one of the paragraphs that was circulated to the parties prior to final publication. The paragraph suggested that the Foreign Secratary, whilst acting on good faith, had made various submissions to the court that where of dubious value because they were based upon information supplied by the security services.

We have,

"The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by Security Services personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. Not only is there some reason for distrusting such a statement, given that it is based on Security Services' advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information."

This statement is extraordinarily damning of the executive and the security services, whilst in another place, the judgment has a dim view of Parliament in that it suggests that it was easy to pull the wool over the eyes of the security select committee.

Lastly, it is anticipated that the statement may have a far reaching effect on other cases; in that, in the absence of this level of scrutiny, is it possible for justice to be done?

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