Secret Justice

Saturday 19 May 2012

Alarming links between British spy agencies and torture, unlawful abductions and dealings with dictators have been exposed in recent years, prompting investigations and major court cases. But now, in a historic move that could erode centuries-old principles of open justice, the government wants to limit sensitive material being disclosed publicly – enabling complicity in human rights abuses to be kept secret.

The controversial plans are set to be included in the Justice and Security Bill, formally announced earlier this month in the Queen’s Speech. The Ministry of Justice says “common-sense” change is needed to protect national security and better equip courts to pass judgment in cases involving classified information. Because the new legislation would enable the government to present evidence to a judge without having to disclose it to the whole court, however, there are major concerns it could lead to cover-ups and put the government and other public bodies above the law.

“The simple fact is that closed courts are inherently unfair,” says Clare Algar, executive director of human rights group Reprieve. “What the government is proposing is a system in which they can use whatever evidence they like against the citizen, but the citizen is unable to challenge or even to see that evidence. This is unacceptable in any circumstances.

"Our current system is working well, and judges have always been extremely deferential to the government on matters of national security. Yet it appears that our security services are attempting to undermine our justice system because they are unwilling to be held accountable in a court of law."

Justice secretary Ken Clarke argues that the government will have to reveal “damaging” secret security information or settle out of court unless ministers can order some cases to be conducted behind closed doors. Clarke says that Britain’s intelligence-sharing relationship with America was dented after a ruling in 2010 forcing ministers to reveal a document showing British complicity in the torture of West London resident Binyam Mohamed, who was held at US-run prison Guantanamo Bay over alleged links to terror groups.

But last month the government’s claims that US authorities have withdrawn or reduced the amount of intelligence it shares with Britain were attacked by the joint parliamentary committee on human rights as being based on “spurious assertions”. And former officers from the US Central Intelligence Agency told the Daily Mail the US would “never hold back” information from British spies if it was “important to their domestic security.”

Prominent critics argue that the reform, far from being motivated by a desire to protect national security, has more to do with preventing politically damaging details from being made public.

“We should not sacrifice Britain’s open and transparent justice system simply to protect politicians and their officials from embarrassment,” said former director of public prosecutions Ken MacDonald in February. “After a decade in which we have seen our politicians and officials caught up in the woeful abuses of the War on Terror, the last thing the government should be seeking is to sweep all of this under the carpet. However, that is exactly what their disastrous secret justice proposals are likely to do.”

Macdonald’s scathing remarks took on added significance last month, when it emerged spy agency MI6 had tried to avoid having to appear in open court by offering a payment of £1 million to Abdelhakim Belhadj, a Libyan dissident it helped hand over to Muammar Gaddafi’s regime in 2004 as part of America’s extraordinary rendition programme. Belhadj and his pregnant wife were abducted by US authorities in Bangkok after a tip-off from MI6. They were forced on a plane to Libya where they were mistreated by Gaddafi’s secret police – and are now suing Sir Mark Allen, an ex-senior member of MI6, for “complicity in torture" and "misfeasance in public office."

If the Bill were to become law by the time Belhadj’s case makes it to a British courtroom, a government minister could sign off a “closed material procedure” (CMP) certificate vetoing sensitive information about MI6’s role being publicly disclosed. CMPs were first established by Labour in 1997 to be used mainly in a small number of immigration cases concerning the deportation of terror suspects. In 2010, for instance, alleged extremists based in Manchester and Liverpool were accused of having links to al-Qaida – but in subsequent deportation hearings CMPs were applied to keep evidence against them secret.

Crucially, aside from cases involving terror suspects and torture, the newly proposed Bill has far wider ramifications. It would apply across all civil court cases or inquests and could potentially be used not only to protect the security services – but also to halt sensitive information involving the police, the army and other public bodies from being revealed. (The definition of “sensitive” information is broad, encompassing the disclosure of anything deemed contrary to the interests of national security, the international relations of the United Kingdom, or the detection and prevention of crime.)

Inquest, a charity that provides support to bereaved people affected by contentious deaths, such as deaths in custody and police shootings, believes the government’s proposals “seriously undermine fundamental legal principles of natural justice and open justice.” The group, whose members number lawyers involved in high-profile cases including the Hillsborough disaster and the shooting of Jean Charles de Menezes, has warned that the Bill, if legislated, would “fuel fears that the state is attempting to deliberately prevent information about its own culpability in deaths becoming publicly known.”

“It is deeply regrettable that the government is pursuing proposals to extend the use of closed material procedures,” says Helen Shaw, Inquest’s co-director. “It is abundantly clear that there is no need for such sweeping changes to the law.”

But not all elements of the Bill have been subject to such intense criticism. While many argue it would be particularly detrimental to the accountability of the secret services in the courtroom, others point out that at the same time, in stark contrast, it also contains a proposal to enhance their accountability to parliament. Currently spy agencies MI6, MI5 and GCHQ are overseen by the intelligence and security committee (ISC), an executive-appointed group of nine parliamentarians, which reports directly to the prime minister. The government wants to improve the ISC by having it report formally to parliament for the first time.

“I see this as a measure of making them more accountable,” says Anthony Glees, an expert in security and counter-terrorism at the University of Buckingham. “There is a problem with accountability in our secret agencies; too much secrecy fuels speculation and it leads to a lack of responsible behaviour. But we can’t expect that they can’t have full accountability because then they wouldn’t be secret agencies.”

By enhancing parliamentary accountability while simultaneously planning to radically reduce judicial accountability, though, it is ultimately the overall impact that is of most significance, according to Hugh Bochel, professor of public policy at the University of Lincoln.

“The proposals give greater parliamentary oversight but they reduce the amount of judicial oversight and to some extent civil society and the media,” Bochel says, adding that this is a “negative step.”

“What you need is overlap between all those different forms of oversight and that should give you a good view as you can and accountability in all sorts of different ways.”

Campaigners point out that the Ministry of Justice’s own impact assessment of its plans for secret court proceedings warned of a “reduction in confidence in court processes” and a “higher risk of potential security breaches,” costing up to £11 million every year. This was compounded last month by condemnation from the joint parliamentary committee on human rights, chaired by Dr Hywel Francis, which said in a report that the court plans were a “radical departure from our longstanding traditions of open justice” and “inherently unfair.”

“The government has now tested the parliamentary waters and its proposal to expand secret evidence has been condemned as unfair and unjustified,” says Angela Patrick, director of human rights policy at campaign group Justice. “Proceeding in the face of these conclusions would undermine the coalition’s commitment to civil liberties and could damage public confidence in the justice system irreparably.”

Controversial proposals

The most controversial aspect of the Justice and Security Bill, scheduled to be introduced to parliament over the next year, is the proposal to introduce closed material procedures (CMPs) across civil cases and inquests. CMPs allow the government to present evidence to a judge without having to disclose it to the whole court, including the defendant or claimant and the media (depending on whether it’s a criminal or civil trial). Elite lawyers familiar with the CMP system, known as special advocates, responded to a government consultation in December by describing CMPs as “fundamentally unfair.”

Another proposal the government has tabled is to exempt the security services and block other public bodies from being subject to so-called Norwich Pharmacal (NP) applications. NPs allow someone making a claim of mistreatment or wrongdoing against an individual or organisation to request information from a third party if it is believed to be crucial to the claim. Evidence of UK involvement in the torture of Binyam Mohamed, a British resident who was imprisoned in Guantanamo Bay, was first obtained using the NP method.

The law relating to Public Interest Immunity (PII) – a kind of “gagging-order” – is the current mechanism for ensuring that harmful material is not put into the public domain in civil proceedings. Under the existing system, if a government minister believes disclosure of a document could harm national security they sign a PII certificate and present it to the court. The court will then consider the issue – looking at the material in question if necessary – and balance the public interest in withholding the document against the interests of justice in disclosing it. Famously the government tried to get a PII certificate in the Matrix Churchill arms-to-Iraq case in 1992 that would have concealed the fact that the defendants had been working for British secret services. The trial collapsed and the defendants were compensated.

Government versus Campaigners

A Ministry of Justice spokesperson says: "Serious problems exist which prevent justice from being done in civil cases involving sensitive material. This could allow government actions to go unchallenged, taxpayers’ money will be squandered, justice will not be done and national security will to be put at risk. We need to make sure that courts can consider all of the evidence, regardless of its sensitivity without putting national security at risk. Only then can intelligence agencies be held to account and justice done."

Clare Algar, executive director of human rights group Reprieve, says: “Closed courts will not strengthen oversight of the intelligence agencies – in fact, they will do precisely the opposite. They will put the Government above the law. The proposals for secret justice would massively skew courts in favour of ministers, and prevent the public from finding out the truth about serious wrongdoing. The reality is that these plans are designed to spare the intelligence agencies embarrassment. They are a recipe for unfair and unaccountable government.”

Interception evidence

The Justice and Security Bill would scale back further the amount of evidence that can be disclosed in civil cases and inquests – thereby preventing the full facts from becoming publicly known. Under the current legal framework there are already complaints that too much evidence can be withheld by authorities. This was recently highlighted in the case of 29-year-old Mark Duggan, who was shot dead by London’s Metropolitan police last August, sparking four days of rioting that spread across England. An inquest into the death of Duggan may not be held because crucial evidence based on intercepted phone calls cannot legally be disclosed on “national security” grounds (the justification for this is that it could reveal sensitive police techniques to criminals).

The Independent Police Complaints Commission has criticised the law preventing full disclosure of intercept evidence, arguing that “the law needs to be changed.”

It said in March: "The IPCC believes that it is essential for families to play a full part in any process which establishes how and in what circumstances their family member died. Our principal statutory duty is to secure and maintain confidence in the police complaints system and one way in which this can be achieved is by ensuring that there is proper public scrutiny when someone dies at the hands of the state. We believe the law needs to be changed.”

However, under the changes proposed in the Justice and Security Bill, less public scrutiny, not more, is likely to occur as a result.

This article first appeared in issue no.927 of The Big Issue in the North.