on the world: a view on human rights
This was written on 14 May 2012 on behalf of the Coalition Against Secret Evidence: www.coalitionagainstsecretevidence.com The bill was published on 29 May
Just weeks after the May 2010 general election, the Coalition government announced a series of measures to “get to the bottom” of the rising tide of litigation and allegations of British intelligence services’ collusion in the torture and abuse of prisoners abroad. The two main limbs of this were the Detainee (or Gibson) Inquiry, which collapsed at the beginning of this year, and the publication of a green paper on justice and security, “[setting] out our proposals for how intelligence is treated in the full range of judicial proceedings, including addressing the concerns of our allies”. The green paper, published in October 2011, contained wide-sweeping measures, which in particular involve extending closed material procedures (CMPs) used at SIAC (Special Immigration Appeals Commission) and POAC (Proscribed Organisations Appeal Commission) to potentially all civil cases.
A public consultation was held, ending in January 2012, to which the government received 90 responses, most of which were highly critical of the proposals and their stated purpose. On 12 March, several NGOs (Reprieve, Liberty, Inquest and Justice) held a cross-party parliamentary meeting in response to concerns about policy implications. Chaired by Lord Lester of Herne Hill, the meeting was well attended by MPs and was addressed by a variety of speakers from the law and media (special advocate Martin Chamberlain, former DPP Lord MacDonald QC, specialist inquest barrister Henrietta Hill and journalists David Rose and Richard Norton-Taylor). The government’s plans were condemned across the board by all present; Lord Macdonald QC described them as “disproportionate and unacceptable”.
Given the potential threat posed to the judiciary by these measures as well as the human rights implications, the parliamentary Joint Committee on Human Rights (JCHR) held its own inquiry. This included its own consultation and hearings involving all parties, including Home Office ministers who were also questioned. On 4th April, the JCHR published its report into the findings of its inquiry.
The report was damning of the government’s plans, stating that they provide “no case for extensive change”. It questioned whether the plan to replace common law public interest immunity (PII) certificates, issued by the courts on a case-by-case basis to determine whether or not disclosure of sensitive evidence should be made, with statutory closed material procedures (CMPs) such as those used at SIAC, are not already adequately provided for in the law; the inquiry found that the government had failed to demonstrate that such was the case, with its argument for the need to extend CMPs based largely on the Al Rawi (2011) case brought by former Guantánamo Bay prisoners against the government for its alleged collusion in their torture and rendition.
Some of the harshest criticism of the government’s plans has come from the special advocates themselves, who are in a better position than most to understand the true implications of the use of CMPs. The JCHR strongly endorsed their view that CMPs are “inherently unfair”. The JCHR also dismissed the government’s proposals for CMPs to be extended to inquests, the government’s third attempt to do so over the past decade. Specialist evidence in this area has stated that CMPs are unsuitable and run contrary to the need for transparency and openness in such cases in both domestic and European law. Dr Hywel Francis MP, JCHR chair, stated that the proposals overall were a radical departure “from our longstanding traditions of open justice and fairness”.
In spite of this barrage of criticism and opposition from all quarters, the government is seeking to press ahead with the plans. Circumventing the white paper stage which usually follows, the Justice and Security Bill was announced in the Queen’s Speech among bills to be put before parliament this session, meaning that the proposals may well become law before the next general election. During their hearing before the JCHR, Justice Secretary Kenneth Clarke admitted that the scope of the plans was not very clear and James Brokenshire, Security Minister, stated that the intelligence services had been consulted on the plans first. On the date of publication of the JCHR report, deputy Prime Minister Nick Clegg called for a rethink of the plans, however whether he and the Liberal Democrats will oppose the plans in parliament remains to be seen.
One of the key criticisms of the plans is the government’s sincerity in its alleged desire to protect national security and the public interest; many have accused it of acquiescing to the demands of the intelligence services and foreign intelligence agencies, such as the CIA. The proposals would put British intelligence above accountability and scrutiny and assign the powers of the judiciary to the very ministries likely to be under investigation.
While a number of the allegations relate to the previous government, the Coalition government’s own reputation is not entirely blameless. The Binyam Mohamed case, which provides the main argument for one of the limbs of the proposals, concerned whether or not British officials knew this British resident was being tortured in Morocco. After years of denial and outright lies, it emerged that the government did know. In spite of this knowledge and the infamous use of torture in Moroccan jails, not addressed in the reforms planned in response to the Arab Spring, this has not prevented the British government from signing a memorandum of understanding which provides the basis for deportation with assurances to that country of any person deemed to pose a threat to national security, that threat being assessed on the basis of a CMP. In this respect, the current government is very closely following the example of its predecessor.
In addition, in March this year, the High Court allowed two Kenyan men (along with a claim allowed by a third claimant last year) to prosecute the British government for its alleged involvement in their rendition to Uganda and torture there in the summer of 2010; they allege American and British intelligence officers were present when they were abused during investigations. The High Court has allowed them to bring their claim and seek documents in support of their application from the government. As in the Al-Rawi case, it is likely that special advocates will be used and the secret evidence will not appear in the final judgment.