The Government has published a Bill which would mean that in future, UK complicity in torture and rendition will be covered up, rather than brought to light. Reprieve is working to oppose these plans and ensure they do not become law.
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The Government’s Bill contains a number of measures which would make it extremely difficult to hold the Government or its intelligence agencies to account over complicity in acts such as rendition and torture. The key proposals are:
Expanding ‘Closed Material Procedures’ across civil courts – this risks creating a parallel system of secret justice, operating in the shadows and undermining Britain’s centuries-old tradition of open justice. It will replace the current system, under which the Government’s national security concerns are balanced against the rights and liberties of the individual, with one in which proceedings are strongly skewed in favour of the state. Those who have been victims of wrongdoing by the Government will be denied access to closed proceedings, and represented only by a security-cleared lawyer, with whom they will be allowed little or no contact. In this sense, it flies in the face of the central principle in British law: that you should be able to know what the accusations are which are being made against you, and to challenge the evidence produced to support them.
Limiting ‘Norwich Pharmacal’ applications – this obscure legal term refers to the mechanism by which we first found out about the torture of British resident Binyam Mohamed. The Bill basically aims to get rid of it. Had this been in place at the time, we would never have known about UK involvement in torture. This move will do nothing to stop our country becoming involved in human rights abuses again – but it will do a lot to stop them ever coming to light.
The bottom line is not only that the Bill is the wrong answer – but that the Government has asked the wrong question. After a decade which has seen our intelligence agencies become involved in unprecedented wrongdoing, we should be asking how we stop this from ever happening again – not how to remove the safeguards which allow us to hold the state and its agencies to account.
Views on the Justice and Security Bill
One of the Government’s central claims has been that they are seeking to “maximise the amount of relevant material available for consideration in civil proceedings”.
However, this defence of Closed Material Procedures (CMPs) has in the past been described as “deceptively attractive” by Supreme Court Judge Lord Kerr. “The central fallacy of the argument,” he continues,
lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial. However astute and assiduous the judge, the proposed procedure hands over to one party considerable control over the production of relevant material and the manner in which it is to be presented. The peril that such a procedure presents to the fair trial of contentious litigation is both obvious and undeniable.
The very lawyers who work within the CMP system – known as ‘Special Advocates’ – have also been strongly critical of the Government’s proposals, and the claims made to support them. In their consultation response, they state:
Contrary to the premise underlying the Green Paper, the contexts in which CMPs are already used have not proved that they are “capable of delivering procedural fairness”. The use of SAs may attenuate the procedural unfairness entailed by CMPs to a limited extent, but even with the involvement of SAs, CMPs remain fundamentally unfair.
On 4 April 2012, the Joint Committee on Human Rights published a report on the Green Paper. In the report, the Committee concluded that the Government has failed to make the case for extending CMP's to all civil proceedings and inquests, and described its proposals as "inherently unfair".
The Equality and Human Rights Commission, responding to the Green Paper, has warned that "closed material procedures can never be completely fair [and] are likely to violate ... the right to a fair trial," going on to state that
The Commission further believes that the current system of Public Interest Immunity works well as a means of protecting sensitive information that also respects the common law principles of open justice and natural justice.
The Bill has run into widespread opposition from the media, with The Guardian, the Daily Mail, The Times, The Independent and the Financial Times all coming out in opposition to the plans, and calling on the Government to think again.
Even the Ministry of Justice’s own impact assessment of its plans for secret courts has warned that they will damage the justice system. They have admitted in their impact assessment of the planned reforms that they could cost an extra £11 million every year and lead to a “higher risk of potential security breaches.”
The document states that:
- The introduction of CMPs could have a net cost of as much as £11m each year, since “the savings from [the current system of Public Interest Immunity] are not judged to be significant enough to outweigh the costs of the CMPs over the next decade” (pp19, 27)
- Introduction of CMPs may lead to a “Higher risk of potential security breaches due to a larger number of individuals accessing sensitive information [and] any potential breaches may impose substantial costs to UK security.” (p12)
- The proposals may “[lead] to resentment or a reduction in confidence in court processes” (p2) “and unwillingness to participate in jury service” (p11).
Ken Macdonald, former Director of Public Prosecutions, argues that the fears that UK Ministers have that foreign intelligence agencies, such as the CIA, would stop sharing intelligence with Britain are ‘spurious’. He attests that their relationship with the Americans is not one sided and in his experience these sort of threats ‘tend to ring hollow’.
The Justice and Security Bill was published 29 May 2012. Commenting on it, Lord Macdonald said that, despite improvements made, there are still major problems with it, as "people whose cases are decided against them on the basis of evidence they've never been allowed to see, are still going to feel bitterly aggrieved by a procedure of this sort, and feel they haven't got justice."
This is in fact the sentiment expressed in a letter sent to Justice Secretary Ken Clarke by Khadidja al-Saadi straight after the Bill was published. Khadidja is the daughter of Sami al-Saadi. At the age of 12, she was - along with her parents and three younger siblings - rendered to Gaddafi's Libya by British Security Services. Khadidja's family is taking the British Security Services to court for conspiracy to torture, after failing to secure an apology or explanation for their ordeal. Through the Justice and Security Bill, the UK government is now saying this case should be heard in secret - the press will be barred and the public will never know the truth.
On 26 June, in his evidence to the Joint Committee on Human Rights, the Independent Reviewer of Terrorism Legislation, David Anderson QC warned that the Bill would mean that “the judge’s hands are effectively tied” and “the Secretary of State continues to pull the strings.” Special Advocate Martin Chamberlain also told the Committee that judges will not have the “final decision” over when closed procedures are used, contrary to then Justice Secretary Ken Clarke’s claims.
Further details emerged as the Bill was debated in the House of Lords. On 13 July, it was revealed that the Government could also use 'Closed Material Procedures’ in habeas cases (where unlawful imprisonment by the state is challenged), laying open the possibility that the reason for someone’s detention could be kept secret. Then, on 23 July, Ministers confirmed that the fact the Government has applied for a Closed Material Procedure (CMP) could itself remain a secret.