Opinion: The Avoidance of Embarrassment Principle

There is one principle that Labour politicians seem willing to test to destruction in the English courts. It is the avoidance of embarrassment principle. The Foreign Secretary has not only tried to apply that principle in court, in full public view – where he has looked increasingly ridiculous in the Binyam Mohamed case – but his legal representative has also tried to pursue the principle in private, in an ultimately unsuccessful attempt to conceal his master’s shame and the
Government’s hypocrisy.

Even though the Government appeal in the Binyam Mohamed case was dismissed the Foreign Secretary told the House of Commons that the Foreign and Commonwealth Office had won a victory. In the end, though it
had been unable to keep a few short paragraphs confirming Binyam Mohamed’s inhuman treatment secret, the court had, David Miliband claimed, upheld the ‘control principle’. A vital principle that he insisted
protected the confidentiality of information received from the intelligence services of friendly states.

The Lord Chief Justice, Lord Judge, was clear that despite the issuing of one public interest immunity certificate after another the court could not accept that the intelligence relationship between the UK and the US was threatened by the publication of material which confirmed the British Government’s extensive and detailed knowledge of Binyam Mohamed inhuman treatment and its shameful role in unlawful efforts to extract
information from him.

Lord Judge also made it clear that it was fear of embarrassment rather than the protection of secrets that motivated Government’s lawyers in their action before the court. In his judgement he noted that:

…publication of the redacted paragraphs would not reveal information which would be of interest to a terrorist or criminal or provide any potential material of value to a terrorist or a criminal. The redacted paragraphs do not… identify methods of surveillance currently unknown to potential terrorists, or reveal the methods employed by the security and intelligence services to penetrate terrorist groups. Indeed …the publication of the redacted paragraphs would not and could not, of itself, do the slightest damage to the public interest.”

The Government’s motive, despite the Foreign Secretary’s protestations that it was driven to court by its desire to keep US secrets, was laid bare by a release of information about its own dealings with the court; a
revelation which it had not anticipated. The Government’s advocate in the Binyam Mohamed case, Jonathan Sumption, had written to all three judges in the case to warn them that there was one paragraph in their draft judgement that would attract more public attention than any other. It was a paragraph they simply had to change, because it would be widely read as implying that the:

    (i) UK’s security service lacked a culture that respected human rights;
    (ii) had failed to make plain its rejection of coercive interrogation techniques;
    (iii) accepted and tolerated members of staff who were prepared to mislead parliamentarians and privy-counsellors;
    (iv) had operated a culture of suppression in its dealings with the Foreign Secretary; and
    (v) had, in sum, rendered assurances given by members of the Government about its behaviour meaningless.

The paragraph, paragraph 168 of the judgement, about which Jonathan Sumption was so concerned, presents the view of the Master of the Rolls, Lord Neuberger. In its published form it seems unlikely to attract much public attention:

(Para 168)…the Foreign Secretary must have prepared the certificates on the basis of advice from members of the SIS and the SyS, whose involvement in the mistreatment of Mr Mohamed has been the subject of findings by the Divisional Court. Having said that, witness B is currently under investigation by the police; and it is impossible, at any rate at this stage, to form a clear or full view as to precisely what his involvement was in the mistreatment of Mr Mohamed.”

Just so, my Lord.

And, just in case you wanted to know what the Foreign Secretary thought about the way in which the amendments pressed by Jonathan Sumption had been obtained you do not have far to go. The Foreign Secretary observed that the amendments were the product of: “… a normal piece of legal practice”.

Unfortunately – for the Foreign Secretary at least – there is a problem with the avoidance of embarrassment principle. Embarrassment is often squared in the attempt to avoid it.

Just so – oh Lord!

* Ed Randall, a Liberal Democrat councillor in the London Borough of Greenwich from 1982 to 1998, edited the Dictionary of Liberal Thought jointly with Duncan Brack. Ed lectures on Politics and Risk at Goldsmiths University of London and is the author of Food, Risk and Politics, published by Manchester University Press in 2009.

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