Time to untangle the debate over secret courts – Angela Patrick

24 September 2012 by

Tomorrow, Liberal Democrats will debate the Justice and Security Bill and will vote on saying no to the Government’s controversial secret courts proposals.  Played in the press as a good opportunity to put clear blue water between the coalition partners, the motion will give a party members a chance to speak out on a Bill which many see as an anathema to the traditional liberal commitment to open, fair and equal access to justice. 

The Bill would – for the first time – introduce the controversial “closed material procedure” (CMP) into our ordinary civil justice system.  In CMP, one party to proceedings and their legal representatives are excluded from a hearing and from seeing any evidence, argument or judgment associated with closed material, leaving Special Advocates (security vetted lawyers) who they cannot discuss the case with to represent their interests as best as possible.  These exceptional procedures have been criticised by both commentators and courts since their inception as a flawed and unfair mechanism which endangers the rule of law and open justice (JUSTICE and others have dissected the Bill on this blog and elsewhere, highlighting its serious long-term political and legal implications).

In advance of Tuesday’s debate, the recently reshuffled Ken Clarke MP QC, Minister without  Portfolio, has rigorously flashed his “instinctively liberal” characteristics to reassure his coalition partners (and us all) that the Justice and Security Bill is broadly on “the right track”.  That Mr Clarke has kept responsibility for the Bill seems to be a acknowledgement by the Government that Parliament will need a liberal sweetener of some kind to get the Bill through it’s likely difficult last stages in the Lords, and its introduction to the Commons.

A highly critical letter from Sadiq Khan MP, the Shadow Lord Chancellor and Justice Minister to the Deputy Prime Minister, reportedly deconstructs the Minister’s claims as “misleading” and the rush to legislate on this issue as “misguided”.

Untangling the debate 

Conference season in coalition provides an all-too-easy opportunity to treat the tensions between the two Governing parties as sport.  However, the substantive legal issues raised by the debate on the Bill are too important to be reduced to politicised, sound-bite coverage.  It is doubtful that many will be convinced by Ken Clarke’s foray into the Guardian.  However, a few snippets from the Minister need explanation:

[T]his bill will for the first time extend civil justice into the most secret activities of the UK state, bringing our security services further into the light and improving their accountability

There is nothing in the Bill which would increase transparency or accountability.  The Government considers that using CMP will prevent the Government settling claims without a defence in circumstances when public interest immunity (“PII”) might be refused.  This argument is undermined significantly by the fact that the Government has been unable to point to a case where PII has led to this result.  Not least, the Government settled the Guantanamo Bay litigation before the Court had considered the application of PII.

Unfortunately, the Minister paints a misleading picture of the Bill as expanding the powers and discretion of the ordinary courts.  Although CMP might allow material previously excluded under PII to be considered by a judge; to suggest that this enhances fairness ignores that the material will not be subject to the ordinary adversarial process.  As Lord Kerr stressed in the Supreme Court decision in Al-Rawi, evidence which is unchallenged can positively mislead.  In short, the Bill will require a judicial decision on the basis of information provided by one side in secret, which has not been challenged effectively.  The introduction of this mechanism into the ordinary civil justice system represents a step-change in our approach to adversarial justice and could fundamentally undermine the credibility of both the system and individual judges required to give judgment in CMP.

No country anywhere in the world allows material that genuinely puts national security at risk into the public domain, and that includes a courtroom.

Nothing in the current system of PII puts national security at risk.  No material has been disclosed under the existing system that has put national security at risk.   The debate on the Bill is about expanding CMP, not protecting national security.

Tony Blair’s disastrous “war on terror” has resulted in a substantial rise in the number of individuals, often former detainees, bringing compensation cases against the British government alleging mistreatment. But what most people do not know is that these cases almost never reach a conclusion in court.

The Government has stressed that it wants CMP to apply to a small number of cases, largely linked to the work of the intelligence services and the war on terror.   Wide-spread concern has been expressed about the risk of applying these exceptional measures to controversial cases where the UK is implicated in some of the most serious human rights abuses, including torture.  However, the Bill applies to all cases where any harm to national security may arise.  The Bill does not define national security and the Government has been clear during its passage that it might apply to the work of the police and other agencies at home.  It will also apply to litigation against private sector bodies.  It provides a power for the Secretary of State to extend the scope of CMP to other kinds of proceedings by secondary legislation, which could include inquests.

Judges and not the executive will have to take the key decisions about whether a closed hearing is justified.

The Bill provides for the Secretary of State to make an application to a judge to ask for CMP.  However, in practice, the judge’s hands would be tied.  If any evidence of harm to national security is produced, CMP must be used as default.   The judge must not consider competing public interests (such as the interest in open justice) or the seriousness of the harm to national security.  The judge cannot consider whether alternative mechanisms used under PII could be used, such as redaction, confidentiality rings or anonymity orders, to allow more information to be disclosed.  In practice, it is highly unlikely that a judge would subject the Secretary of State’s assessment that national security is in danger to close scrutiny.

Claimants will not be allowed to see the evidence, but an independent advocate will represent their interests and be able to challenge it.

The Special Advocates who would perform this independent role have been some of the strongest voices against the extension of CMP, which they consider “inherently unfair” (see this post). While some argue that the Advocates have understated their value, most agree that their function is extremely limited by their inability to take effective instructions.  That the Government has resisted calls from all benches to amend the Bill to allow the judge greater discretion to disclose summaries and other material to the excluded party, and to enhance the role of the Special Advocate confirms the Government’s intention that their role should remain a limited one.

More reactionary parts of the human rights lobby have nicknamed [this] my “secret courts” bill.

The Bill is rightly controversial.  Ken Clarke’s dismissal of criticism from “more reactionary” human rights commentators has already been publicly debunked.  JUSTICE, as an all-party, legal reform organisation is rarely considered radical. However, we enjoy the company of not only domestic and international legal organisations – including the UN Rapporteur on Torture – but politicians across the political spectrum in criticising the extension of CMP.   In addition to now vocal critique from within the Liberal Democrat party, and from the front bench of the opposition, the Bill has faced consistent calls for significant amendment from all benches in the House of Lords, including from the respected cross-party House of Lords Constitution Committee.

JUSTICE has urged Liberal Democrats to support the motion tabled by Jo Shaw.  The debate on the Bill will continue when Parliament resumes in October, with its final stages in the House of Lords expected before the end of the year.  The Government’s continuing refusal to engage with cross-party criticism of the Bill and its supposed safeguards is becoming stale.  We at JUSTICE hope that members of the coalition, from both parties, are listening to the rational (and far from reactionary) arguments against the Bill on Tuesday.

This guest post is by Angela Patrick, Director of Human Rights Policy at JUSTICE. Follow JUSTICE on Twitter (@JUSTICEhq

JUSTICE is hosting fringe events at all three party conferences, together with the party legal associations.  All attending conference are welcome to attend.  Full details are available here.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:

2 comments


  1. Rosemary Cantwell says:

    24 September 2012

    Dear Ms Patrick

    Justice cannot be seen to be done if it is behind closed doors.

    QED

    Human Rights are eroded when “secret courts” can decide what is and is not in the public interest.

    I also hope that we do not have a “Bill of Rights” that will jeopardise the Human Rights Act.

    Thank you very much for your timely warning.

    With best wishes

    Rosemary Cantwell

  2. forcedadoption says:

    Try debating about the secret family courts that jail mothers if they protest publicly when their newborn babies are taken for “risk of emotional abuse” and given to strangers for adoption ! Ian Josephs

    Sent from my iPad

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: