Secret hearings will undermine open justice in Britain
Earlier this week, the Justice and Security Bill entered its second reading in the House of Lords. The Bill is supposed to safeguard the UK’s ‘national security’. Yet it is clear that the notion of ‘security’ embraced by its proponents is deeply flawed. In the words of Lord Pannick QC at the Lords reading on Tuesday, the Bill will ‘undoubtedly damage the ability of the courts to give judgments that are fair and are seen to be fair.’
The Bill’s primary aim is the introduction of secret hearings, or ‘Closed Material Procedures’ (CMPs), across the UK civil court system. This will mean that ministers can apply for non-criminal courts to hear sensitive material in ‘closed session’ for national security reasons. The Bill is likely to have the greatest impact on cases involving accusations of state complicity in torture and other serious human rights violations such as illegal detention and rendition.
Under the new rules, the person bringing the claim against the state, the claimant’s legal team, and anyone who has not been security vetted would be excluded from the secret hearing. Their interests would instead be represented by a security-cleared barrister called a Special Advocate.
The problem with these kind of procedures is that they allow the government to rely upon evidence that cannot be properly challenged, while also stopping the public from being able to follow the entirety of the case. Special Advocates condemned the secret hearings in their consultation response to the Justice and Security Bill, saying that where they are already in use they ‘represent a departure from the foundational principle of natural justice’ and, despite the assuaging role of Special Advocates’s, are ‘fundamentally unfair.’
The government claims they need the bill in order to use intelligence material in court which, if disclosed, would endanger Britain’s international intelligence-sharing relationships and reveal the shadowy techniques of the security services.
The state is keen to avoid a repeat of the case of Binyam Mohamed, a former Guantánamo detainee. In his case, the Court of Appeal ordered the disclosure of evidence that Mohamed had been tortured. This violated the ‘control principle’, which dictates that where a country shares intelligence (in this case the US) it is for that country to decide when it is disclosed. Thus, it is argued that unless the UK has a law that prevents such disclosure, the US could decide not to share information about, say, a potential terrorist attack.
But the assertion that the US would stop sharing intelligence with the UK simply does not stand up to scrutiny. Shortly after the judgment in the Mohamed case, a White House spokesperson – predictably – said that ‘we need to redouble our efforts to work through this challenge, because the UK remains a key partner in our collective efforts to suppress terrorism’.
The idea that one of the UK’s closest allies would fail to disclose details of a terrorist plot is ludicrous. It appears more likely that the arguments put forward by the then-Foreign Secretary were geared at dodging a public debate about the role of the British Security Service in the mistreatment of Binyam Mohamed.
The bribery case against arms company BAE Systems is one poignant example from recent ‘national security’ case law, which shows the worrying degree of deference the judiciary is prepared to pay government in these matters. In the 2008-case of Corner House Research v Serious Fraud Office, the British government closed an investigation into whether BAE Systems had bribed the Saudi Royal family, on the grounds that Saudi Arabia was threatening to stop sharing intelligence.
The High Court was not so easily swayed. In a strongly-worded judgment, it found that closing the investigation on these grounds would be damaging ‘not merely to the reputation of the Serious Fraud Office … but to the reputation and very existence of the rule of law.’ But sadly this ruling was later overturned by the House of Lords, then Britain’s highest court, who found the director of the Serious Fraud Office to have acted lawfully in balancing the public interest.
The Corner House case points to the fundamental flaw in the government’s narrative: the suggestion that we must balance justice and security. This idea fails to acknowledge that justice and security are two sides of the same coin. The security of the nation is not the ability of its citizens to go about their business without harm, but rather the protection of the nation itself. It is this security, and our core societal values, that are threatened by this Bill.