The Government’s claim that “nothing currently heard in open court could be heard in secret” under the Justice and Security Bill can only mean one of two things: either those responsible for the Bill are seeking to mislead the public, or they have failed to understand the full implications of the legislation.
The Bill would give ministers the power to push civil cases into secret proceedings simply by claiming ‘national security.’ Judges would be stripped of their current powers to weigh competing concerns of the need for justice and the need for security when deciding what should be secret and what should be public. This loss of an independent balancing mechanism would naturally give the government the ability to keep more information secret.
This is not solely a fringe view: the Government’s own Reviewer of Terrorism Legislation has warned that under these plans, the “the judge’s hands are effectively tied” and “the Secretary of State […] pull[s] the strings.” He has also pointed out that, should the Bill pass, “some cases will be tried by a closed material procedure that could have been fairly tried under [the existing system of] Public Interest Immunity.”
Current ministers may honour their promises concerning secrecy, but the reality is that there is nothing in this Bill that ensures this will be the case. It will create an irresistible temptation, by providing a way for governments to conceal embarrassing information and kill off the cases which might reveal it.
Had this Bill been in place a decade ago, the public would not have found out about the UK’s role in the torture of Binyam Mohamed. What that case also demonstrated is that we sadly cannot rely solely on the promises of our politicians.
The rhetoric which is being used to defend this Bill is hopelessly out of step with the text of the legislation. The Government must think again before granting itself sweeping powers over the courts, which would roll back centuries-old traditions of equality before the law and adversarial justice.
This was first published as a letter to The Guardian.