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Secret courts condemned - a threat to liberty and justice?

Author: ObiterJ

13 Mar 2012 | 16:37

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"Secrecy, being an instrument of conspiracy, ought never to be the system of a regular government" - Jeremy Bentham (1748-1832)

Until this week, reaction to the Government's green paper on 'Justice and Security' has been muted. It has taken the form of detailed and reasoned submissions and has tended to come mainly from organisations and individuals with a legal background. Writing on the UK Human Rights Blog, barrister Adam Wagner, somewhat despairingly, referred to the "sound of tumbleweed greeting secret civil trials proposals".

There are now 77 published responses on the Justice and Security website - with the possibility that more may yet be published. Given that 'Special Advocates' are at the heart of the proposed 'Closed Material Procedure' (or CMP), the two-part excoriating response from those practising in this capacity is particularly interesting.

They said: "The introduction of such a sweeping power could be justified only by the most compelling of reasons. No such reason has been identified in the Green Paper and, in our view, none exists." They find the CMP proposal to be "insupportable" and urge Government to consider an alternative system of security cleared lawyers receiving information subject to 'protective orders' as used in the US.

Earlier this month, the Daily Mail commendably raised the profile of the whole topic. On Wednesday 29th February, the newspaper declared that the proposals were a 'chilling threat to liberty and justice',  arguing that "Mr Clarke's plans are so glaringly open to abuse that they have no place in a civilised country's legal system". On Friday 2 March, the Mail continued with 'Secret courts condemned - by the very lawyers who would have to run them'. Here they indicate areas where important information which is in the public interest might not have been revealed under a closed material procedure. These include 'friendly fire' military deaths, shortages of military equipment and also mistakes made by MI5 in connection with the 7/7 suicide bombings in London.

Lest it be thought that the increased noise is just coming from the Daily Mail, it is worth noting that Frances Gibb writing in The Times informed us that Britain's anti-terrorist watchdog has warned of the dangers of ministers being given unprecedented powers to order secret trials. David Anderson QC, the independent reviewer of terrorism laws, told The Times that he is not persuaded of the need for this very significant change. Ministers have proposed powers enabling them to order the use of secret, or closed, trials in damages claims wherever they decide that evidence is too sensitive for open court. Mr Anderson is reported as having said: "There may be a case but I am urging caution. I am very wary of the way that the Government is seeking to define the category of cases... by reference to 'sensitive information'". Some views expressed by Mr Anderson in January 2012 may be seen here.

Further adverse comment may be read at The Guardian - 'Justice and Security Green Paper: Silence in Court'- which sees the proposals as a "reaction to the failure to keep the lid on information suggesting UK complicity in torture and rendition". Regrettably, this has some force given that the proposals were devised following the 'without prejudice' settlement of the Binyam Mohamed litigation.

(Fuller detail and consideration of the proposals may be read at the following blogposts written in November 2011: (1) The government's case; (2) Proposals and Consultation; and (3) Oversight.)

Not everything in the green paper is necessarily to be condemned. The idea of improved oversight of the security services merits serious consideration. However, the rotten core is the proposed closed material procedure to be instigated by Ministerial order when there is 'sensitive' material. What is 'sensitive' is not defined and would be basically left to the Minister's determination.

If introduced into law, this would very likely become a particularly unruly horse since claims that material is 'sensitive' could extend by widely-drafted legislation to prevent disclosure of serious wrongdoing by government or its multitudinous agencies. Widely drafted legislation is not unusual; for example, The Regulation of Investigatory Powers Act 2000.

Secret hearings are the tools of those with dirty linen to hide. This green paper is something up with which we should not put...! The need for a rethink is clear and urgent.

ObiterJ is the author of the Law and Lawyers blog. Click here to follow ObiterJ on Twitter.

For more, see Justice wide shut from The UK Human Rights Blog.

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