Is it cheaper to pay off terror suspects than challenge them in court?

4 March 2013

"Setting up secret courts 'would cost more than paying off terror suspects'... according to Government's own report!"

The Daily Mail, 4 March 2013

There was spirited debate in the lead up to yesterday's final vote on the Coalition's Justice and Security Bill, which was described by its supporters as "focused and proportional" and by its detractors as "dangerous and unnecessary". And while the Government carried the day, it was forced to confront vocal opposition from all sides.

The Daily Mail has been at the forefront of the campaign to see a number of the Bill's provisions abolished. It has focused its criticism on the Government's proposal to introduce "closed material procedures" (CMPs). These "secret courts" will adjudicate in certain types of civil cases where there's likely to be discussion of classified information. In theory, if this evidence were to be heard in public, there might be a risk to national security. As such, there will be no public access to proceedings.

Justice not seen, justice not done?

The legislation has been partly designed to tackle the problem of terror suspects bringing civil claims against the British Government. As it stands, if someone accuses the UK Government of being complicit in their wrongful detainment or torture, the security services are usually unable to present evidence in court where "the facts of the case turn on highly sensitive information". As Kenneth Clarke MP, the minister in charge of the Bill, argues:

"The consequence has been that the Government has had to cease to defend itself, leaving state action unscrutinised, citizens with no independent judgement on very serious allegations, and the taxpayer liable for settling cases which may have no merit."

What's the price tag?

As the Daily Mail notes, the impact assessment that the Government itself has produced shows that over the course of the next decade it would cost £8 million to extend the use of Closed Material Procedures. This number is based on an estimate of how much money would need to be spent on 'Special Advocates' (lawyers with the necessary security clearance), as well as 'judicial and representation' fees. 

Therefore, under the current system many civil suits are settled by the Government without it contesting the case in court. What's the cost?

A headline in this weekend's Sunday Times (£) declared, "Secret £30 million payout for terror suspects". The following day, the Daily Mail's article quoted Kenneth Clarke as the source of the statistic.

We asked the Cabinet Office, where Mr Clarke is based as a Minister Without Portfolio, to explain how it had arrived at the figure of £30 million. A spokesperson said that the department had not provided this information to the Sunday Times and there was no official figure in the public domain. Indeed, in the Sunday Times article Mr Clarke is only quoted as saying, "We are paying out millions of pounds." 

We've contacted the Sunday Times to ask how it obtained the £30 million statistic but, as it stands, we're none the wiser. 

Most of the civil suits settled by the Government have involved the signing of legally-binding confidentiality agreements - in other words, the amount of compensation an individual receives is not information that will be openly available. The Cabinet Office noted that the only exception to date has been the case of Sami Al-Saadi who, having accused the Government of being complicit in his illegal rendition to Libya, received £2.2 million in compensation. 

The Daily Mail, having wrongly quoted Mr Clarke as the source of the £30 million figure, contrasted this sum with the anticipated £8 million cost of the "secret courts" proposal. It then concluded that it would be cheaper to pay compensation to terror suspects than it would be to conduct justice behind closed doors. At the moment, the Daily Mail's headline suggests that £8 million is, somehow, a larger sum than £30 million. 

If we accept that the Government has already spent £30 million on settlements and there are currently other cases under legal review, then the £8 million projected cost of the new courts might still constitute a saving (assuming that the Government's compensation bill would, accordingly, be reduced). 

The Daily Mail focuses on the additional cost of secret courts compared to the present system while at the same time it neglects to factor in the £30 million that the Government has already paid out. In fact, an extra £8 million over the course of a decade (so, less than £1 million per year) might represent value for money if it will mean the Government spends less on compensation settlements (which, is, incidentally one of the principal aims of the legislation).

We'll be asking the Daily Mail to correct or at least clarify its misleading headline. Although we're currently unable to verify the £30 million statistic, the Daily Mail quotes it (and wrongly attributes it to Mr Clarke). The headline of the article in question suggests that the £8 million cost to the Government is less than this £30 million it has so far paid out to terror suspects.

It's clear that there are many "known unknowns". Yesterday, Mr Clarke admitted to MPs that the Government did not know how many cases would be heard in the "secret courts". It follows that the cost to the Government is likely to vary depending on the number of suits brought under the new system. However, even if we use the figures that are available, the Daily Mail's analysis looks to be incorrect.

After the Coalition's victory in yesterday's vote, the Justice and Security Bill is due to be passed formally later this week. 

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