The timing for the conference could not have been better, at the very same time, the House of Lords was crushing the Bill, significantly narrowing its scope. The defeat will send a powerful message to the House of Commons and the government as to the adoption of this legislation. However good this news is, the battle against this piece of legislation is far from over. First of all, narrowing its scope is simply not good enough and second of all, the Bill will have its third reading in the House of Lords on 28 November, which is the last opportunity for amendments to be made before the Bill moves on to the House of Commons where it can still be adopted as it is.
The bill's most controversial proposal is the extension of secret hearing, known as closed material procedures (CMPs), civil courts. The procedure would enable the government to introduce sensitive information in a trial that could only be seen by a judge and security-cleared special advocates who represent the interests of an individual claimant. The government argues that expanding CMPs into civil courts will enable judges to try a bigger range of national security cases and prevent claims being settled out of court or not settle at all. In our view, this new piece of legislation will enable the government to avoid any bad publicity coming from cases of complicity in torture, rendition or worse and looks more like a government’s attempts to hide evidence of its involvement in international crimes, to protect diplomatic and intelligence-sharing relations. Wednesday’s seminar was the opportunity to recall how this bill came into existence and one of the reasons, was the case of Binyam Mohammed.
Binyam Mohammed, an Ethiopian national and UK resident, has been detained by the US Government in Guantanamo Bay prison between 2004 and 2009. Mr Mohamed was arrested by Pakistani immigration officials at Karachi airport in April 2002 when intending to return to the UK. He was tortured in Pakistan, Morocco and Afghanistan between 2002 and 2004. In a statement following his release and return to the UK, he said that during all his time in detention "the very worst moment came when I realised in Morocco that the people who were torturing me were receiving questions and materials from British intelligence". He was transferred to an alleged CIA-run site in Kabul, Afghanistan, before being sent to Guantanamo in September 2004. He was only released from Guantanamo in February 2009 after all charges against him were dropped, but the stigmas of torture and unfairness remained. When back in the UK in 2009, his ordeal came public and with it, the complicity of the UK authorities in the CIA torture and rendition programme. Even though difficult, his torture claims eventually came to light and were recognized in British Court against MI5 in 2010. This would not happen anymore if the Secret Courts Bill was to be implemented. The timing of this Bill is actually extremely revealing, in a time when Human rights activists, organisations and MPs are still campaigning very strongly for the return of Shaker Aamer, the last Briton still held in Guantanamo, to its home in Battersea, south London. Is the UK government waiting deliberately for the Bill to be adopted to avoid any embarrassment such as the case of Binyam Mohamed?
The system as it is today is far from perfect and closed proceedings are already in place. For instance before the Special Immigration Appeal Commission (SIAC), if the Government considers that disclosure of evidence to the plaintiff would harm national security, it may be withheld from him and his defence team. Instead, the material is disclosed to a special advocate who will not be able to discuss it with the appellant nor with his legal team. Many lawyers and human rights activists have criticized this process which does not allow due process in accordance with article 6 of the ECHR. The appellant finds himself having to respond to a case against him, he does not have a clue about. Secret evidences are being used when, also to protect national security, appeals are lodged against control orders decisions. Nowadays in Britain, hearings may be held in secret, without the presence of the claimant if the authorities believe that it will be detrimental to national security. However the ECHR found in the decision Kennedy vs UK that this was not in contradiction with article 6.
Outside those two specific procedures, it exists already a way for dealing with sensitive material, which is the public interest immunity or PII procedure. If a minister opposes to the disclosure of a document because he considers its admissibility in Court would harm national security, he can sign an official document to that effect. The court will then be in charge to consider the matter and to determine whether the interests of national security outweigh the interests of justice. If the balance is determined against disclosure, the document may not be admitted at all, or relied on by either party. This is a fair process under which both parties, the individual and the State, are treated equally, and the court is the arbitrator. Either everyone may use the document, or no one can. Under the new Bill, only one party will be able to use sensitive evidence and this party will be the government. The unfairness and lack of due process is sticking. Why reinventing the wheel then when an efficient procedure is already in place if not to hide the darkest practices?
Under this new piece of legislation, claimants and their lawyers of choice would not have access to the material or the closed sessions and would, instead, have a court appointed Special Advocate to represent their interests. The Special Advocate would be prohibited from discussing any part of the secret material with the claimant or taking instructions from them after seeing the material, seriously preventing their ability to serve the interests of the client. Lawyers won’t be in a possibility to do their job and will advise their clients in total blindness. Dinah Rose explained how impossible it is for a lawyer to represent a client when a closed material procedure applies; most of the time is spent outside court, waiting to be allowed back in. When the lawyer get finally a chance to cross examine, he has no idea whether the questions are pertinent, or unhelpful, or if the submissions are on point, or wholly irrelevant. And this will be even more difficult in civil claims, how a lawyer will be able to advice properly its client on a settlement? This new procedure is simply in total contradiction with common law practices which develop by definition on cases analysis and precedents first of all, but also in contradiction with our adversarial system based on equality of arms, on the process by which each party tests the case of the other, by evidence and cross examination, and the judge acts as arbiter. Centuries of a whole judicial system will be flawed by such a bill. This piece of legislation will annihilate what Britain is so proud to have developed since the 13th century and that is the Magna Carta, roots of the English legal system.
The path thereby chosen is a dangerous one for civil liberties and centuries of due process in England. The terrorism act, the extradition act, control orders, now secret courts…and we already know they want to expand those secrets courts to law enforcements’ litigations with civilians. Those serious assaults on civil liberties cannot be tolerated and cannot be justified once again in the name of national security. It is important that those of us who oppose the Bill write or call our MPs and urge them to vote it down. As Hussain’s comments demonstrate, even if the Bill does pass in some form, we are not powerless to prevent it being brought into our courts. We should press our MPs to reject the Bill, whilst preparing to lobby Special Advocates to boycott participating in the extension of secret courts.
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