‘The law is above you’

The Brexit case was not the only Supreme Court litigation relating to the respective power of ministers, parliament and the judiciary last month. There was also Belhaj and another v Straw and others [2017] UKSC 3.

Jack Straw held many of the great offices of state under the Blair and Brown administrations. Indeed, he titled his autobiography Last Man Standing. This was well received. Peter Hain in the Guardian saw it ‘very much in character, crafted with literary elegance - erudite, forensic and fascinating’. Straw had ‘an impressive grasp of history and a deep Labour party hinterland’. Indeed, Straw made a popular and competent lord chancellor, respected by both branches of the legal profession.

It is only fair to disclose that I do not share the otherwise wide admiration of Straw. This is not because he was caught in a Channel 4 sting that exposed him to the allegation of ‘cash for access’ once he got the peerage which he could reasonably expect to receive (Straw denied any wrongdoing). He was, after all, cleared by the Parliamentary Standards Commissioner, though a peerage did not follow. My sense of personal betrayal by the one cabinet minister for whom I have ever voted - albeit for the presidency of the National Union of Students – comes from elsewhere. Straw knew, in a way that Tony Blair may not, the extent of the betrayal of Labour’s constituency in taking the UK into the Iraq war. He knew the political arguments. He also knew the legal ones. He explicitly overrode  advice from his own chief legal adviser, Sir Michael Wood, as to the legality of the war. He ended up on the wrong side of the worst foreign policy disaster since the second world war, even if the Chilcot Inquiry charts his ultimately futile attempts to soften the intemperance of the Americans.

The recent Supreme Court case relates to another Foreign Office matter. Here is Lord Mance on the underlying facts: ‘Mr Belhaj, a Libyan national and opponent of Colonel Gaddafi, and his wife … were … deported by the Chinese authorities to Kuala Lumpur. There they were detained. MI6 is alleged to have become aware of their detention and … to have sent the Libyan intelligence services a facsimile reporting their whereabouts. … Thereafter, they allege, they were … put on board a US airplane which took them to Libya. There they were further detained …  They allege that they suffered mistreatment amounting to torture at the hands of US agents in Bangkok and in the airplane and at the hands of Libyan officials in Libya. They allege that the United Kingdom “by common design arranged, assisted and encouraged [their] unlawful rendition ... to Libya”’.

All this might have remained the baseless claims of a foaming-mouthed jihadi had there not been unexpected Libyan regime change. This not only instantly transformed Belhaj into an important regional leader, it led to the unfortunate discovery of a smoking gun. On 8 March 2004 Sir Mark Allen, a senior Secret Intelligence Service official, wrote a letter that he no doubt now regrets to the then head of the Libyan External Security Organization. The ‘safe arrival’ of Belhaj was ‘the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over recent years’. It seems unlikely that Sir Mark was indulging in a frolic of his own unauthorised by his political boss.

Straw and the UK government have refused to answer questions and asserted the doctrine of foreign state immunity – the notion that the UK courts should not adjudicate on the legality of foreign officials in sovereign states acting under their own laws. However, the case is about the liability of British officials and ministers and, as Lord Mance said: ‘The issues now before the Supreme Court do not attract state immunity, because the legal position of the foreign states, the conduct of whose officials is alleged to have been tortious in the places where such conduct occurred, will not be affected in any legal sense by proceedings to which they are not party.’

Belhaj, clearly a formidable politician not without a sense of humour, has offered to settle his case for £3 and an apology. This sum will now have to be supplemented by the not inconsiderable legal expenses of taking the preliminary point to the Supreme Court. Nevertheless, it would seem to be rather a good deal for the UK government, which is spending taxpayers’ money to resist the case. As to Straw he will, no doubt, consider – but may not follow once again – such action as he is advised. There seems little case for any continuing costs indemnity if the settlement offer is rejected.

The important constitutional point in this case is that, as in Brexit, the judges have had to weigh in to hold the executive to account. As old Tom Denning liked to intone: ‘Be ye never so high, the law is above you’.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice