Last week the Justice Secretary, Kenneth Clarke, told the  Commons that an out of court settlement had been negotiated to head off threatened legal actions brought by Binyam Mohammed and others who claim compensation for the alleged participation by British security services in torture, at an estimated cost to the taxpayer of up to £20 million. No admission of culpability was made, nor were the allegations withdrawn. Details of the deal are to remain legally confidential. (So much for the much vaunted Freedom of Information Act, see post of 17^th October 2010.)

The Prime Minister’s spokesman commented that “some people would find the payouts unpalatable.” We think ‘outrageous’ is a better description, at a time when British taxpayers are facing a swingeing VAT increase and curtailment of housing and child benefits,  British students are being required to take on mountains of debt and many British public servants are facing unemployment. By a hideous coincidence, this deal has also been struck at a time when the inquest into the 7/7 London bombings is revealing full details of the sufferings of ordinary British people in the course of that Islamist atrocity.

We do not condone torture, and accept that appropriate compensation is due where unlawful acts have been committed. That, however, should have been properly established in court, where the extent of the claimants’ maltreatment and the legitimacy of British intelligence’s involvement in them (if any) could have been thoroughly tested. Such a course, however, was said by Mr Clarke to be practically impossible owing to the wide-ranging nature of the case brought by the claimants who, very probably at the instigation of their lawyers and the human rights industry, would have tried to extend a claim for compensation into a political indictment of the whole Anglo-American intelligence relationship. Mr Clarke claims that defending such a case would have involved the scrutiny and possible public disclosure of some 500,000 documents, some involving highly sensitive intelligence material, both British and US, whose confidentiality the courts have, up to now shown little inclination to respect. This might have entailed a threat to future Anglo/US intelligence sharing, legal costs escalating to £50 million resulting from a vigorous defence by the Government’s lawyers and the diversion of large numbers of security service personnel from their prime task of preventing another 7/7 atrocity. We believe that these fears may be exaggerated. If not, it is surely incumbent on Mr Clarke to remove, through legislation if need be, the power of unelected judges to override the view of elected Ministers on the withholding of intelligence material where terrorism is involved.

The price we have paid for this exercise in pragmatism is high, not merely in financial terms. The settlement is already being hailed by the human rights industry as a victory over ‘lawlessness’, although nothing of the sort has been either admitted or proved.  The stain on the reputation of British intelligence is indelibly implanted, whatever the Head of MI6 may say in its defence, and will no doubt be exaggerated in Al Qaeda propaganda well beyond any misconduct that might conceivably have been revealed in court. The Prime Minister may justifiably feel that he has drawn a line under a particular and very nasty problem inherited from his predecessors, but further cases will arise involving the same issues of disclosure of secret material and the control of suspected terrorists posing a threat to the safety of the British public. The results of the forthcoming wide-ranging inquiry into the operations of the security services will very probably be dismissed as a whitewash, particularly by human rights activists and their sympathisers in the media. There is also another particularly bitter pill to swallow.

Binyam Mohammed is not a British citizen (see post of 30^th December 2009). He was allowed to remain when he was abandoned here as a teenager in the 1990s and was clothed, fed and housed at the taxpayer’s expense. He also received education and a chance of technical training which should have enabled him to earn a living. It was his decision, and his alone, to abandon the life offered to him and go to Afghanistan. His subsequent release from Guantanamo was due, at least in part, to Gordon Brown’s intervention on his behalf with the US Administration.  Following the settlement of his ‘torture’ claim, we owe him nothing; and because his release by the US (and that of the other ex-Guantanamo claimants) is conditional on close monitoring of their activities, his continued presence in the UK represents a further distracting burden on the security services. On the basis of  Mohammed’s past interviews with sympathetic journalists, there appears to be sufficient evidence for his permission to remain to be revoked under the terms of the Immigration Directorate’s Instructions, (Chapter 9, para 322(5)). Nor could deportation be regarded as a punitive measure, given the amount of compensation awarded which would provide a good standard of living in, for example, his native Ethiopia.  But the UK Border Agency has taken a different view and in October granted him indefinite leave to remain, for reasons which it refuses to divulge. We speculate that this extraordinary concession forms part of the confidential settlement to which Mr Clarke referred, and that it extends to the other claimants (some of whom are said to be asylum seekers) as well. We can only hope that if monitoring reveals any grounds for reconsidering their leave to remain, through their conduct or associations for example, the Agency will carry out its duties with more resolution than it has shown so far.

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