29 May 2012

The Justice and Security Bill: unaccountable government and unfair courts


Ken Clarke

The Justice and Security Bill has been published today. The government claims to have made significant concessions. In fact, none of these touch the heart of the bill, which is designed to place our Security Services above the law and keep torture and rendition out of open court.

The Bill is entirely unnecessary -- the current system of Public Interest Immunity has worked perfectly well  for many years on countless terrorism cases -- and is a brazen attempt by our Security Services to insulate themselves from legal challenge and press scrutiny.

The Bill will severely damage the ability of the public to hold the Government and its agencies to account through the courts; skew court proceedings heavily in favour of the Security Services; destroy our centuries-old tradition of open justice and prevent serious state wrongdoing – such as torture – from ever again coming to light.

Reprieve’s Executive Director Clare Algar said: “It is deeply worrying that our government’s response to its complicity in rendition and torture is not to strengthen our legal safeguards but to destroy them. This Bill will ensure that our Security Services never have to face an open court - or the scrutiny of the media or British tax-payers - even when they are mixed up in the most serious crimes. Among other cases, the rendition-to-torture of twelve year-old Khadidja al-Saadi back to Gaddafi’s Libya will never be heard in open court. The Coalition must drop this Bill – or become the government which put British spies above the law.”

1) The government’s ‘concessions’

What the government says

We have dropped secret inquests, a significant concession.

What this means

The government has effectively acknowledged that that secret inquests cannot produce a just result, and has rightly dropped the idea. Yet the rationale that applies to dropping secret inquests should be applied to the entire Bill. Secret ‘justice’ is not justice at all, whether it be for a grieving family or a victim of torture or rendition. Secret hearings undermine two of the most fundamental principles of our legal system: that all evidence must be able to be challenged by the other side, and that justice must be seen to be done. It will also create a parallel system of secret case law, known only to a privileged few. This Bill remains a broad and brazen assault on our centuries-old tradition of British justice.  

What the government says

They have significantly narrowed the category of cases to be heard in secret from ‘sensitive’ or ‘public interest’ cases to ‘national security’.  (National security is not defined.)

What this means

Post-9/11 torture cases will be heard mostly in secret. This was the purpose of the Bill in the first place – to stop the torture cases – and is still intact.  Under the law, the Libyan rendition cases – Belhadj and al-Saadi – will likely be heard in secret. As a rationale, the UK will say the US will be angered by a public airing of the facts. The government will argue that there is an ongoing national security interest in suppressing British involvement in torture where another party to the torture is a foreign state.  This argument has been largely discredited

What the government says

A judge will independently decide whether a Closed Material Procedure (secret court) is appropriate in each case.

What this means

Judges, without the benefit of hearing the view of the other side, will often get the balance wrong.  Once the statute is in place, judges tend overwhelmingly to defer to the government’s national security assertions. Judges themselves know this. This is exactly why the Supreme Court rejected this suggestion of the government in the leading case on secret hearings in civil claims: al-Rawi. As Lord Kerr of the Supreme Court said in that case: 'evidence which has been insulated from challenge may positively mislead.'

What the government says

These changes will improve oversight of the security services because more cases will be (secretly) tried.

What this means

On the contrary, many cases of high public interest will not be brought or will become impracticable to litigate. That’s because one side – the party suing the government for torture – will have slim to no idea of the opposing side’s case. This will reduce access to justice for torture victims, not improve it.

2) The Bill in brief

Rolling out closed courts across the civil justice system

The Bill is expected to make ‘Closed Material Procedures’ (CMPs) available across the civil justice system, whenever a minister claims ‘national security’ is involved. In CMPs, the claimant is excluded, while the Government brings forward secret evidence against their case. The claimant is represented by a ‘Special Advocate’ – a security-cleared lawyer – but they are not allowed to talk to one another. This makes it impossible for the claimant effectively to challenge the evidence brought against them, as they simply will not know what it is. It will lead to a one-sided process, justifiably described as ‘Kafkaesque,’ in which the state is allowed to make a case against the citizen which the citizen is not even allowed to hear.

For example, in a CMP, the Government might accuse someone of undertaking a certain activity on a certain day. That person would not hear what the accusation was. They would not even be told when they were accused of this conduct, and so would have no hope of offering an alibi or explanation.

Blocking evidence of Government involvement in wrongdoing

The Bill proposes to abolish a legal principle called ‘Norwich Pharmacal,’ under which the Government can be required to disclose evidence that it has become ‘mixed up’ in wrongdoing, such as torture. No information which threatens national security has ever been made public under the Norwich Pharmacal principle. In that sense, it is hard to see this as anything other than a move designed to spare the embarrassment of Government agencies.

3) Myths debunked

Myth 1: The Justice & Security Bill will “enhance procedural fairness.”

In fact, the opposite is the case: by preventing one side from being able to hear or challenge the Government’s evidence, the Bill will skew procedure in favour of ministers. Supreme Court Justice Lord Kerr has pointed out that “evidence which has been insulated from challenge may positively mislead.” Meanwhile, the Special Advocates, expert lawyers who would work within the closed courts which the Government proposes to expand, have pointed out that CMPs are “fundamentally unfair.” The proposals would strike at the heart of the UK’s centuries-old adversarial tradition of justice, under which each side is able to challenge the other’s case.

 Myth 2: The Bill aims to stop unjustified or “speculative” compensation claims.

 The ‘Norwich Pharmacal’ principle which the Bill aims to abolish was used by Binyam Mohamed’s lawyers in a life-or-death situation. Had they not been able to obtain evidence of his brutal mistreatment, he could have faced execution on the basis of ‘confessions’ made under torture. He has since been released from Guantanamo Bay and returned to the UK without charge. It is grossly dishonest to characterise an innocent man seeking to avoid a death sentence based on torture confessions as a frivolous compensation case.

 By closing down access to justice where claims of ‘sensitive information’ can be made, the Bill’s plans would also prevent the truth from emerging in the cases of the wives and young children of Gaddafi opponents Sami al Saadi and Abdel Hakim Belhadj, all of whom were rendered back to Libya by British intelligence. Mr al Saadi and Mr Belhadj endured years of brutal torture as a result.

 Myth 3: Secret courts will protect national security.

 The current system of Public Interest Immunity (PII), which the Government is looking to replace, already allows ministers a mechanism to stop the release of evidence which could harm national security, with the final decision resting in the hands of a judge. The Government’s own Reviewer of Terrorism Legislation, David Anderson, has stated that the “system founded on PII does not threaten national security,” and has warned ministers against using “scare tactic[s] in order to achieve [their] proposals on secret civil trials."

 Myth 4: The Justice & Security Bill will save money.

 An MoJ impact assessment document in fact shows that the proposals for CMPs could cost up to £11m more each year than under the current system.

 Myth 5: Intelligence sharing with the US is threatened unless the Bill is implemented.

 The former head of the CIA’s Bin Laden Unit, Michael Scheuer, when asked recently if there was nervousness in the US about sharing intelligence with Britain, said “I think less than with anyone else […] The Central Intelligence Agency would never hold any information back from the British that was important to their domestic security, or to the security of their people and facilities overseas." (The World at One, BBC Radio 4, 4/4/12). The Government’s Reviewer of Terrorism Legislation has stated that, “Existing PII procedures do not risk compromising foreign intelligence.”

Meanwhile, the Justice Secretary freely admits he “had no direct contact with the CIA” or the US authorities about this issue. Given that his justification for these damaging proposals is that they are needed to reassure the US, this seems surprising. The Joint Committee on Human Rights has called on the Government to clarify the situation, and if necessary “address the apparent misperception of US officials that UK courts cannot be trusted to ensure that national security-sensitive material is not disclosed.”

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