Introduction

The announcement today that the government has apologised to Abdelhakim Belhaj and Fatima Boudchar, as well as paying compensation of £500,000 to the latter, would seem to mark the beginning of the end of the process of attempting to secure accountability for some of the most astonishing events in which the British government is known to have been involved in recent decades. In this post I outline the different strands of that process and consider where today’s announcement leaves us, and what remains to be done.

Background

Belhaj was a senior member of the Libyan Islamic Fighting Group, an Islamist group which opposed Colonel Gaddafi during the later years of his period as Libyan Leader. Belhaj and Boudchar, his wife, had been living in China when they decided to seek to travel to the United Kingdom in order to claim asylum. They were instead detained and transported, eventually, to Tripoli where they were mistreated. Though Boudchar – who was pregnant at the time of her ordeal – was released shortly thereafter, Belhaj was detained for seven years, and on his release fought in the Libyan Civil War of 2011, commanding the Tripoli Military Council.

British involvement in the rendition of Belhaj was revealed only when a letter from Sir Mark Allen, MI6’s head of counter-terrorism during the relevant period, was unearthed in the office of Gaddafi’s head of security after the fall of the regime. The letter, as extracted by (and with the insertions of) the Court of Appeal, read as follows:

Most importantly, I congratulate you on the safe arrival of [Mr. Belhaj]. This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built up over recent years. I am so glad… [Mr. Belhaj’s] information on the situation in this Country is of urgent importance to us. Amusingly, we got a request from the Americans to channel requests for information from [Mr. Belhaj] through the Americans. I have no intention of doing any such thing. The intelligence about [Mr. Belhaj] was British. I know I did not pay for the air cargo. But I feel I have the right to deal with you direct on this and am very grateful to you for the help you are giving us.

These events took place very shortly before Tony Blair concluded his famous ‘deal in the desert’ aimed at bringing Libya back into the international community. Ever since the UK’s involvement came to light, attempts have been made to seek some form of redress, with the NGO Reprieve assisting Belhaj and Boudchar and their son on a number of fronts. Today’s announcement brings to an end several of the strands of the process. I consider those strands in turn.

Tort claims  

A number of tort claims were brought against Sir Mark Allen and Jack Straw, the Foreign Secretary at the relevant time, as well as various public bodies (including the Security Service – MI5 – and the Secret Intelligence Service, MI6). In related cases and previous cases – including those relating to persons held in Guantanamo bay – the Government has settled the claims without admitting liability, arguing that to do so avoids a situation in which the Security and Intelligence Agencies are distracted by the need to spend time and energy resisting claims. Belhaj refused to agree to such an approach, offering instead to settle the case for a token sum from each of the defendants if it was accompanied by an apology. The government instead resisted the litigation in every conceivable way, at one point finding itself before the Investigatory Powers Tribunal to face claims that it had intercepted the communications between Belhaj and his legal representatives.

The key plank of this resistance was the deployment of the doctrine of Foreign Act of State, a rule of non-justiciability (in the fullest sense) which means that the courts cannot adjudicate certain claims where to do so would be to impugn the sovereign actions of a foreign state. Perhaps tellingly, it was not claimed that the British involvement itself was protected by the related but distinct doctrine of Crown Act of State, which relates to the sovereign acts of the United Kingdom. At the beginning of last year, the Supreme Court held that even if the doctrine of Foreign Act of State was engaged here, British action fell within the public policy exception to it, and so the claims could proceed to trial. Where the Guantanamo cases, however, were brought against a background of uncertainty as to whether the courts had the power at common law to order a closed material procedure (the Supreme Court eventually holding, in Al Rawi v Security Service, that they did not), the Belhaj case was to be tried in the era of the Justice and Security Act 2013, which makes closed material procedures available in civil proceedings generally. It had already been accepted that the criteria for the holding of a closed hearing were met here, and so had the claims been tired, that trial would have taken place behind a veil of secrecy. Belhaj’s representatives would have been unable to see much of the material upon which the government was relying to resist the claims, with that material instead shown to a security-cleared Special Advocate not permitted to communicate with the claimants. Given the multitude of jurisdictions in which relevant events took place, and the involvement of a number of different state actors, justice would not only not be seen to be done, but may in fact not have been done. Today’s announcement of compensation for Boudchar, and the making of an apology to both – though without any admission of liability – brings to an end this element of the affair.

Criminal law

The private law element was accompanied by a criminal investigation. In summer 2016, four years after the Metropolitan Police and the CPS had set up a panel to investigate issues around the treatment of detainees, it was announced that no charges would be brought against one suspect as there was ‘insufficient evidence to afford a realistic prospect of conviction for any criminal offence’. It nevertheless noted that there was sufficient evidence to support the contention that the person in question had:

1. been in communication with individuals from the foreign countries responsible for the detention and transfer of the Belhadj and Al Saadi families;
2. disclosed aspects of what was occurring to others within this country; and
3. sought political authority for some of his actions albeit not within a formal written process nor in detail which covered all his communications and conduct.

Several months later, it was said by the Mayor of London that the Metropolitan Police had ‘submitted a comprehensive file of evidence (in excess of 28,000 pages) to the Crown Prosecution Service seeking to demonstrate that the conduct of a British official amounted to Misconduct in Public Office.’

The decision not to bring charges was the subject of a judicial review. In that case too the Government claimed that considerations of national security made it necessary to hold a closed hearing. That presented a problem: the Justice and Security Act 2013 makes closed proceedings possible in ‘relevant civil proceedings’, which is defined to mean ‘any proceedings (other than proceedings in a criminal cause or matter)’ before the High Court, Court of Appeal, Supreme Court etc. Is the judicial review of a charging decision by the CPS ‘proceedings in a criminal cause or matter’?

This dispute recalls one of the great controversies surrounding the law of public interest immunity (‘PII’), which was the key mechanism for protecting the public interest against disclosure of sensitive material prior to the emergence of the closed proceeding (and which, in fact, remains available even in the context of closed proceedings under the 2013 Act). PII traditionally came in two flavours: content claims and class claims. The former amount to the claim that documents were sensitive because of the content of those specific documents themselves; the latter that they were sensitive not because of their content but because of the class of documents to which they belonged. When the Matrix Churchill trial collapsed as a result of the abuse of PII, one of the disputes was over whether class claims were possible in the criminal context. The authority which had been relied upon for claiming that they were was in fact an extradition case, which was hardly equivalent to a criminal trial. In relation to the judicial review of the CPS’s decision, the High Court held that an application could be made for a closed hearing. That judgment was appealed, on the leapfrog procedure, to the Supreme Court, where it was heard over two days in March. That application for judicial review has now also been withdrawn.

The public inquiry

The third element of the accountability process is an ongoing inquiry into the British involvement in the mistreatment of detainees, being carried out – and, in theory at least, due to be published this year – by the Intelligence and Security Committee of Parliament. Here too, the process has been a rather tortuous one. The ISC carried out earlier inquiries into the topics of rendition and the handling of detainees, both of which were widely agreed to be unsatisfactory in a number of respects. This second inquiry was originally to be a public inquiry carried out by Sir Peter Gibson. The Gibson Inquiry – which was not a statutory public inquiry under the Inquiries Act 2005, and so did not enjoy the powers contained therein to compel the production of material etc – was wrapped up prematurely when the criminal investigation started. At the time, it was said by the Justice Secretary that it was still intended to ‘hold a judge-led inquiry into these issues, once it is possible to do so and all related police investigations have been concluded’. This intention was confounded by handing the matter over to the ISC, which by now had been granted a new status (and new powers), also by the 2013 Act, and which in effect promised to show it was deserving of a second chance:

Those previous Reports were incomplete and, in some important respects, unsatisfactory since, after they had been published, new information which had not been made available to the Committee became known. At that time the intelligence Agencies were not under any statutory obligation to provide the Committee with all relevant information in their possession. They were entitled to reach their own decision as to what to provide. Since those reports were produced, the ISC has been given important new powers under the Justice and Security Act. The Agencies are now under a statutory obligation to provide the Committee with all relevant material. The Committee now has a statutory right to consider all aspects of work across the intelligence community, which is backed by the power for its staff to go into the Agencies themselves and inspect their files. These powers are already being used and will be available for all the Committee’s future work. The Committee is, therefore, satisfied that the problems that occurred in the past will not, and cannot, recur.

The announcement of the settlement of the tort claims should not impact this element of the process for securing accountability for any British involvement in the mistreatment of Belhaj and Boudchar and others.

Conclusion

As this – necessarily truncated – overview of the matter suggests, efforts to establish what exactly was the nature of the United Kingdom’s involvement in what was done to Belhaj and Boudchar, and to secure accountability for any wrongdoing, has been a tortuous one. It is to the great credit of the two, and those who have worked with them, that such persistence has been shown and that this positive result has been achieved.

And while it is tempting to understand the affair as simply (yet) another example of the difficulties of accountability in the field of national security, I would suggest there is something more to it than that. First, what we see in the Belhaj case is an example of the increased likelihood of wrongdoing where the United Kingdom, rather than acting alone, acts in concert with other states. This likelihood is increased when these States would be willing to undertake activities from which the UK authorities are happy to benefit, even though they would not be willing to undertake those activities themselves. The apology offered today noted that ‘We should have understood sooner the unacceptable practices of some of our partners’, but it seems very difficult to believe that the practices of Gaddafi’s regime in particular were not already well-understood.

Second, this affair shows that the state will resist accountability to the greatest extent in those cases which implicate not only its own wrongdoing, but also that of its foreign allies. Given that more and more (perhaps soon all) activities in the domain of national security have an international aspect, this in particular bodes poorly for the possibility of securing accountability in the modern national security context. Though today’s events represent a victory for the claimants, eyes will now turn to the ISC in order to understand whether enough has been or will be done to prevent a repeat of the events for which the UK has today apologised.

Paul F. Scott, Lecturer in Public Law, University of Glasgow

(Suggested citation: P.F. Scott, ‘The Belhaj Saga: The Beginning of the End?’, U.K. Const. L. Blog (11th May 2018) (available at https://ukconstitutionallaw.org/))