Secret Justice

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But last month the government’s claims that US authorities have withdrawn or reduced the amount of intelligence it shares with Britain were attacked by the joint parliamentary committee on human rights as being based on “spurious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.”

Academies and Free Schools

At schools across England, there is a rising tide of anger and concern among parents and teachers. Amid accusations of government bullying, as a result of the 2010 Academies Act, hundreds of schools are being transformed into independent academies that operate outside the control of local authorities. The government says the change, a historic shift away from the comprehensive education system, is for the better. But critics argue it is more about creeping privatisation than improving standards.

Chorlton High School in Greater Manchester is one of many where there is active resistance to the process. Unlike some low ranking schools, which are being forced to become an academy by the Department for Education (DfE), the governors at high achieving Chorlton want to voluntarily convert. They believe that because of the current financial climate, becoming an academy would “best protect the nature and ethos” of the school.

However, parents and community activists have formed a campaign group to oppose the move, which they argue would leave the school unaccountable to local people and could open it up to for-profit providers in the future.

“We’ve got a very good school, why change it for the Tories?” says 55-year-old Mark Krantz, a former teacher whose son studied at Chorlton High. “Without having a ballot of the community which the school serves, they don’t have the right to give our school away and turn it into an academy forever. The school’s been there for over 50 years; how can it be right that a small group of governors decide that they believe this is what should happen?”

As part of its “education revolution”, the coalition wants all schools to have the chance to become academies. Of the 3127 maintained secondary schools in England, as of 1 February, around half – 1580 – had converted to academy status.

Receiving funding directly from central government and not local authorities like comprehensive schools, academies have greater freedom and control over their finances and do not have to follow the national curriculum. Some can be sponsored by charities or businesses, which can choose the headmaster of the school and have a say over what is taught.

Controversial so-called “free schools” can also be set up by groups of parents, teachers, charities, trusts or religious groups, which then become academies and receive central government funding. 24 free schools opened in 2011 and a further 72 are planned to open in September 2012 and beyond.

One, the Phoenix Free School, is set to be established in Oldham next year. Run entirely by ex-military servicemen and women, it will attempt to instil “martial values" in children, using a mix of unqualified and qualified teachers who the school’s ex-army cofounder says will be told to discard “every liberal idea taught in teacher-training courses.”

“Putting troops onto our streets may control the symptoms of social breakdown. But putting troops into our schools would do far more to address the underlying problems,” says Tim Knox, director of right-wing think-tank the Centre for Policy Studies, which is backing the Phoenix school. “In particular, ex-servicemen and women can provide the role models and sense of discipline that is so often lacking in inner city schools.”

But teachers groups are staunchly against the introduction of free schools and academies, questioning the merit of allowing untrained educators and companies with vested interests to exert influence over children.

“For a young person to develop fully, they need to have a really broad rounded curriculum – not something that’s narrow and aimed at one particular job or industry, which is what we’re seeing,” says Avis Gilmore, north west secretary of the National Union of Teachers. “We are opposed to the whole process because we see it is dismantling the state education system.”

There is widespread anxiety that the Academies Act is leading to what is in effect privatisation. Although the coalition has given assurances that it will not open up schools to for-profit companies, it refuses to rule out doing so in the future. Already, firms such as Barclays Bank have sponsored schools – raising questions about what they as businesses stand to benefit.

“It’s anything but privatisation through the back door – they’re parking the tanks on the lawn,” says Alasdair Smith, spokesman for the Anti-Academies Alliance. “They’re blowing local authorities away so lots of schools feel that they have no choice but to become self governing academies or to join chains.

“It’s exactly the same as what’s being done to the NHS. There’s no mandate for this. What you’re seeing are corporate raiders lining up to take over our schools – that’s the bottom line. If you want to improve schools you’ve got to focus on the quality of teaching and learning. It’s not about changing structures and governance.”

The rapid boom in school conversions has proved costly for some councils. In Yorkshire, at least 16 schools tied to private finance initiative deals are applying or have become academies, according to the Yorkshire Post. This could mean the region’s councils are forced to pay millions for schools they no longer run or own.

Last month, governors of Coleraine Park Primary in Tottenham, north London, became the latest in a line of schools forced to become an academy by the DfE following a poor Ofsted report. Coleraine was made to accept sponsorship by the Harris Federation, a charity chaired by Tory peer Lord Harris, which runs a chain of academy schools. The charity is not-for-profit, though notably one of its directors was paid over £240,000 in 2010.

“Coleraine’s governors feel that the Secretary of State has disempowered them without due regard for their role and has in fact bullied them into a decision in a way that nobody wants,” the governors wrote in a disgruntled statement. “We believe that handing it over to the Harris Federation will not necessarily improve standards more than they would have done on the current trajectory.”

Downhills Primary, also in Tottenham, is faced with a similar predicament. Because it has been placed in special measures by schools inspectorate Ofsted, which means it is underperforming, the DfE is able to compel it to become an academy under the powers granted by the Academies Act. The school’s head, Leslie Church, recently resigned after coming into conflict with education secretary Michael Gove – but parents are vowing to fight the conversion in his absence.

“At our school the children are happy, the children are learning and I don’t have concerns,” says Wendy Sugarman, 44, whose eight-year-old son attends Downhills. “There is some really good teaching going on. The Ofsted report was very, very harsh.

“I just think that the whole thing stinks. When you look into the academy chains, it’s all about money. As parents we chose to send our children to the school because it had certain qualities, and I worry that the ethos of the school will be destroyed by an academy chain. I feel that they have no grounding or experience working with Haringey, our borough.”

Fears about the degree to which academy status can improve schools were confounded in February after Birkdale High School in Southport was deemed “inadequate with special measures”, the lowest ranking, four months into its academy status.

“Progress is inadequate and students do not achieve as well as they should,” Ofsted wrote in its report. “The failure of senior leaders to improve teaching quality and tackle inappropriate behaviour has contributed to a far less favourable picture of provision and outcomes than at the time of the previous inspection.”