Claim against Jack Straw, brought by Gaddafi victim and his wife, may be heard in secret under new Justice and Security Act
One of the first cases to be heard by the government's new generation of secret courts may be a claim brought by a Libyan dissident who was kidnapped along with his pregnant wife and flown to one of Muammar Gaddafi's prisons.
Abdel Hakim Belhaj is suing the former foreign secretary Jack Straw and Sir Mark Allen, former head of counter-terrorism at MI6, as well as the British government and its intelligence agencies, over the so-called extraordinary rendition operation from 2004.
The high court in London heard on Tuesday that ministers would probably move to have the case heard under the secrecy provisions of the controversial Justice and Security Act, which comes into force in July.
"The new act will apply to these proceedings," Rory Phillips QC, representing the government, told the court at a preliminary hearing. "It is likely that such an application will be made."
The act has faced criticism from lawyers and human rights groups who argue that its primary intention is not to protect intelligence-sharing arrangements with foreign states – as ministers argued when it was passing through parliament – but to conceal evidence of government wrongdoing in cases such as that brought by Belhaj.
Straw, Allen and the government face claims for damages from Belhaj and his wife, Fatima Bouchar, who accuse them of false imprisonment, conspiracy to injure and trespass to person, misfeasance in public office and negligence.
Richard Hermer QC, prosecuting, said that there was likely to be a lively debate between the two sides over the circumstances in which the secrecy provisions of the act could be relied upon by the government.
Phillips made clear, however, that the defendants were keen to reach a negotiated settlement with Belhaj.
"They would be pleased to enter into a settlement process to draw a line under this case," he said.
"The defendants would like to reiterate … their willingness to sit down with Mr Belhaj and his representatives, face to face, in order to see if we can reach a settlement."
Belhaj and Bouchar's lawyers believe the pair has a strong case, based in part on a secret intelligence file discovered by the New York-based NGO Human Rights Watch during the revolution that toppled Gaddafi.
The file contained a number of letters from Allen to the dictator's intelligence chief, Moussa Koussa, including one in which the MI6 officer made clear that although he did not pay for the air cargo, the intelligence that had led to the couple being detained and "rendered" had originated with his agency.
Other documents discovered at the time showed that MI6 was involved in a second operation in which another Libyan dissident, Sami al-Saadi, was kidnapped and flown to Tripoli along with his wife and four children, the youngest a six-year-old girl. Al-Saadi settled his claim against the British government with a payment of £2.2m.
Belhaj has offered to settle his claim with a payment of just £1 from each of the defendants, but insists that they must admit their guilt and apologise to him, and particularly to his wife.
Despite being visibly pregnant, Bouchar was allegedly chained to a wall when detained by the CIA in Bangkok before being taped head and foot to a stretcher for the 17-hour flight to Tripoli. She was then held for several months while her husband was being interrogated and allegedly tortured nearby.
Such an apology is unlikely to be forthcoming, however, as the two UK-Libyan rendition operations are the subject of a Scotland Yard investigation – one of four police investigations into the activities of British intelligence officers in the years after 9/11.
The high court case was adjourned until October, when the government will argue that the case cannot be tried in an English court, as the events took place outside the UK, and involved foreign intelligence officers.
Were this to be accepted by the courts, Hermer argued, "then whenever agents of the British state are involved in joint operations with agents of a foreign state, they enjoy complete immunity".
The kidnap, torture and arbitrary detention that the couple suffered were offences not only in English law, but "fundamental breaches of international law".
Straw and Allen are also arguing that they are unable to respond to the allegations because of the restraints of the Official Secrets Act.