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on the world: a view on human rights

Justice and Security Bill: An Affront to Open Justice

This is a presentation I gave on behalf of CASE (Coalition Against Secret Evidence) at the CAMPACC monthly meeting on Monday 10 September 2012

The Justice and Security Bill was introduced into the House of Lords on 29 May by Lord Wallace of Tankerness QC, a Liberal Democrat peer and Advocate General for Scotland.  The stated purpose of the bill is to: “strengthen oversight of the security and intelligence agencies. It will allow civil courts, through the limited use of closed proceedings, to hear a greater range of evidence in national security cases”.

The bill is essentially divided into three parts, each of great importance to the administration of justice and the work of the security agencies in the UK:
1 – Oversight of the intelligence and security agencies
2 – The use of closed material procedures (CMP) in civil cases, and
3 – Disclosure proceedings
These three issues are closely linked, however it is the government’s proposals to introduce secret evidence (closed material procedures) into civil proceedings that have proved the most controversial and alarming, inviting criticism from almost all quarters; they will be considered here.

There are two aspects to the background to this issue:
i – Background to the bill
ii – Background to CMP

i – THE BILL: In July 2010, shortly after the general election, the then new Coalition government announced a package of measures to deal with the rising tide of litigation and allegations of British intelligence services involvement in torture overseas. Related to Guantánamo Bay and torture by proxy – extraordinary rendition and collusion with foreign intelligence services that torture – some of these claims have been proved and concern both British and foreign nationals. Furthermore, at the time, the government was still reeling from  the Binyam Mohamed [2010] case, which had damaged confidence in the government and intelligence services and revealed the extent to which the Foreign office was prepared to mislead parliament, the courts, the media and the public over this case and fresh litigation was underway (Al-Rawi & Others [2011]) by former Guantánamo Bay prisoners for disclosure of what the government knew of their torture, rendition and abuse in Guantánamo Bay and elsewhere. 

These measures included the now defunct Detainee Inquiry, much criticised and from which many of the parties involved had withdrawn before it collapsed under the weight of mounting criminal cases against the government earlier this year, the publication of guidance to the military and intelligence services and a Green Paper “which will set out our proposals for how intelligence is treated in the full range of judicial proceedings, including addressing the concerns of our allies.” Unfortunately, in announcing these measures, the Prime Minister chose to speak of the “mistreatment” of detainees, rather than torture.

Once a number of outstanding cases had been settled, including the case brought by former Guantánamo prisoners, which ended in an out-of-court settlement, the Green Paper on Justice and Security was published in October 2011. Proposals included “introducing legislation to make closed material procedures (CMPs) more widely available in civil proceedings”, potentially across the board, to protect national security. In making its argument, the green paper largely relied on the two abovementioned cases and a third employment tribunal case, Home Office v Tariq [2011]. The proposals, alleged to protect national security, pose a risk to the right to a fair trial, the principles of open and natural justice as well as a threat to human rights and the constitutional independence of the judiciary. The measures, most of which have survived into the Bill, essentially mean that there will be no open scrutiny of the potentially illegal actions of government and its agents, unless the government decides otherwise, and victims of such actions will have no real remedy or means of obtaining disclosure of the truth of events or evidence that may support their case.

The measures have been roundly criticised by the media, human rights NGOs, the legal establishment and some sections of the political establishment. A public consultation was launched at the same time as the Green Paper, ending in early January and drawing around 90, largely critical, responses. Given the potential threat to human rights, the parliamentary Joint Committee on Human Rights launched its own inquiry, the report of which was published in April. This cross-party report too was damning of the government’s plans and added to the chorus of protest against the highly unfair and disproportionate nature of the proposals.

ii – CMP: The use of CMP is not new and involves the use of special advocates, security-vetted barristers, who represent a party in closed proceedings in court, during which confidential evidence, which cannot be disclosed to that party or their lawyers in open court, is disclosed to the judge. The special advocate who can discuss the case with the party prior to that disclosure being made to them cannot do so afterwards, and the party in question is thus unable to present an adequate defence to any allegations made against them on the basis of the confidential (closed) evidence. It is meant to be used in exceptional cases and usually arises in national security cases where one of the parties is a government body or public authority. It was most significantly introduced in the Special Immigration Appeals Commission Act 1997, creating SIAC, a special court which hears national security deportation cases, usually involving deporting alleged terrorism suspects and foreign dissidents to countries known to practice torture. SIAC too was created to deal with such exceptional cases; however, with its increasing use and more such cases since 9/11, a decade of litigation against the procedural unfairness of proceedings there has ensued, including cases taken to the European Court of Human Rights in Strasbourg. Almost no SIAC appellant knows the grounds for which the government is seeking or has sought to deport them and, beyond the special advocates representing them, have no means of fighting them, thereby undermining the adversarial system and open justice. Although the Justice Secretary uses SIAC as an example of the success and “fairness” of such measures in the Green Paper, that assessment is almost completely opposed by everyone else and it is unsurprising that some of the sharpest criticism of the proposals has come from the special advocates themselves, who undoubtedly know the system far better than most.

Although most prominent at SIAC, it is also used at the Proscribed Organisations Appeal Commission (POAC), has been used in employment tribunals and its use is spreading. In some “torture evidence” civil claims, rather than relying on a public interest immunity (PII) certificate, usually used in such cases, and decided by the judge, the government has tried instead to use CMP. With PII, the evidence is then excluded completely, whereas with CMP, the evidence is excluded from one party. The proposals in the bill would also devolve the power to order the use of such procedures from the judiciary to the executive, who may be the minister whose department is a party to the proceedings, and which is seeking to rely on that secret evidence. In several of these “torture evidence” cases, judges have asked the government to clarify the law on the use of CMP and are reluctant to use them without statutory provisions for its use.

One such case was recently dismissed at the High Court in London; while the BBC hailed this as a “win” for the government, it is difficult to assess the merits of such a victory when parts of the evidence and judgment rendered are unknown. While similar cases relate to the previous government’s term, the facts in this case took place in 2010, after the Coalition assumed power. One of the key criticisms made of the bill is that it provides immunity to the government and secret evidence helps it to hide its involvement in international crime and that of other governments. National security, furthermore, remains a vague and undefined notion.

Where are we now?
Circumventing the white paper stage that usually follows a green paper, the bill was introduced in the House of Lords on 29 May, a week later than anticipated, allegedly due to disagreement between the Coalition partners over its provisions. The Liberal Democrats claimed a victory when the bill was published with inquests removed from the scope of CMP and their proposed use was limited to national security cases. The use of CMP (section 6) remains the most controversial point. Former Director of Public Prosecutions and Liberal Democrat peer, Lord MacDonald QC, said that the reforms made to the bill do not go far enough. Criticism has continued, including in a report by the House of Lords Constitution Committee and the continuing threat posed has meant that the JCHR is continuing to take evidence on the bill.

Having completed committee stage in the House of Lords in late July, where a number of amendments were tabled, the bill is likely to reach the House of Commons later in the autumn. Debated almost entirely by professional lawyers in the Lords, amendments proposed are largely to mitigate the provisions it contains, and it is largely anticipated that the bill will go to the Commons. Many critics believe that the bill is disproportionate to the aims it seeks and do not see the purpose of it at all. The government, however, is determined to pursue it, so much so that in spite of a recent cabinet reshuffle, in which a new Justice Minister was appointed, Kenneth Clarke continues to assume responsible for this bill and will see it through parliament.

Most recently, criticism of the bill has come from the UN Special Rapporteur on Torture, Juan Mendez, who said that such courts “would hamper the ability to deal effectively with torture.”

The Liberal Democrats have already announced that the issue will be discussed at their party conference. Other political parties and/or fringe meetings may well do so too, however in the coming months, individuals and organisations, including media organisations, concerned with the protection of human rights and victims of such abuses must  step up calls for this bill to be scrapped.


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