Time to untangle the debate over secret courts – Angela Patrick

24 September 2012 by Guest Contributor

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.

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Read more:

•  Lords “Reform”: The Justice and Security Bill – Angela Patrick
• Government has still not made case for “inherently unfair” secret trials, say Special Advocates
• Criticisms remain as dust settles on secret trials bill
• Key Justice and Security Bill resources
• Secret evidence proposals – time to reflect