(From the archives) Originally posted on April 4, 2012 by markdowe

BALANCING SECURITY AND LIBERTY

Keeping citizens safe and free is the primary role of the state. In attempting to achieve this it must properly balance the requirements of national security with the principles of liberty. In Britain, this tension runs like a thread throughout its history. Over the centuries, the executive has sought to arrogate further powers to itself – usually in the name of protecting the people – while Parliament and the judiciary have acted as a check on its presumption. Invariably, parties in opposition believe the government of the day is acting in an illiberal fashion; yet when they take office, they discover that achieving the right balance is harder than they imagined.

When in opposition, the leaders of the two parties now making up the Coalition were vehemently critical of Labour’s plans for a substantial extension of the state’s surveillance powers. But having flip-flopped, the Conservative-LibDem coalition are now making precisely the same supportive arguments as their predecessors. The problem with this kind of volte-face is that it erodes public trust in government, and makes it harder for ministers to do anything in the name of security without being denounced for their illiberal instincts. This is one reason why the Government’s proposals for ‘secret courts’ have received such a sceptical, if not hostile, reception. In a report published today the joint parliamentary committee on human rights adds its criticism, saying that plans outlined in a Green Paper last year to hear some civil actions involving the security and intelligence services behind closed doors are based on ‘spurious assumptions’ and are ‘inherently unfair’.

The Government is seeking to extend the so-called evidence procedures following the claims for damages brought by Binyam Mohamed and others, who alleged that Britain had ben complicit in their mistreatment whilst in Guantanamo Bay. Rather than disclose information that might damage national security, the Government withdrew from the action and paid substantial compensation. Under plans put forward by the Coalition, a judge would see the evidence and hear arguments from special advocates with appropriate clearance. However, no one else – including the plaintiffs – would be entitled to know what was being discussed. This should go without saying that this is not open justice. The question, though, is whether it is justified.

On balance perhaps it is – so long as these procedures are used only in the most exceptional circumstances and not at all in inquests. There are times when the national interest requires secrecy; it would be naïve to pretend otherwise. But Parliament must ensure that the law is properly framed to balance the requirements of fairness and security.