The Justic e and Security Bill would expand the use of “secret” courts known as closed material proceedings (CMPs) to civil courts in England and Wales in any case that the government claims relates to ‘national security’. If the bill passes, neither claimants nor their lawyers would be permitted to see the so called secret-evidence – rather it would only be seen by the defendant (the government), the judge, and a Special Advocate in closed proceedings. While the Special Advocate is supposed to act in the client’s interest, he or she cannot confer with either the client or his attorneys after seeing the evidence, making it virtually impossible for the Special Advocate to dispute the government’s claims. Judgements in CMP cases would also be rendered in secret, meaning that we would learn little more than whether a case had succeeded or failed. The government claims that the extension of CMPs will allow the state to be held to account in cases involving secret evidence, but as it became clear on Wednesday night, the Bill functions first and foremost to hide the torturous activities of both the British intelligence services and that of our allies.
The first speaker during the evening was Dinah Rose QC, of Blackstone Chambers, who specialises in human rights and public law. Ms. Rose, who was Binyam Mohamed’s lawyer in his proceedings against the British government, roundly rejected the claim that the Bill is necessary to protect the government from paying out money (as it did with former Guantanamo detainees) when it is unable to defend itself without disclosing sensitive information. As she pointed out, there might be some material that the state would prefer to keep secret – such as information that demonstrates British knowledge of and complicity in the torture of its own citizens; however, these cases should be treated just as any other civil suit, in which plaintiffs settle in order to avoid having embarrassing or incriminating documents disclosed. The development of common law would also be greatly hindered, since judgments would largely be kept secret. Ms. Rose also stressed that the Bill is a “terrible infringement on our judicial tradition”, and wondered how it would work in practice, as lawyers would be unable to view the documents necessary to make an offer to settle (part 36).
Next we heard from Richard Norton-Taylor, a journalist and writer on defence and security with the Guardian. He reiterated that the government has put misleading arguments forward to justify the expansion of secret courts, and also stressed that MI5 and MI6 have been pushing for this legislation for a long time. Indeed, the Justice and Security Bill is a way to protect Britain’s “special relationship” with the USA, as its primary purpose is to protect intelligence passed on from American sources that outline the torture or mistreatment of detainees.
After Norton-Taylor, the next speaker was Clare Algar, currently the Executive Director of Reprieve. For Algar, the Binyam Mohamad case clearly demonstrates why the government cannot be trusted. The Bill is not only a means for the British government to protect its “special relationship” with the US – it’s also a way for the security services to protect their image and reputation. If CMPs are extended to civil cases, courts would never be able to hear plaintiffs contravene the assertions of the government. Rather, the government would be allowed to defend itself and explain the secret evidence at hand in closed court, but the Special Advocates would have no means of rebutting the state’s arguments, since they are barred from speaking to their clients.
Finally, we heard from CagePrisoners’ very own Saghir Hussain. He discussed how the Justice and Security Bill is merely the next step in the decades-long creation of a two-tiered justice system, one for Muslims, and one for everyone else. As Hussain pointed out, the Justice and Security Bill cannot function without Special Advocates. He commended Dinah Rose, who resigned as a Special Advocate because of the flawed nature of the CMP system. Hussain suggested that if the bill does pass, we should urge all Special Advocates to boycott the expansion of the system, and stress that participation in secret courts is equivalent to complicity in covering up state crimes. Both CagePrisoners and Reprieve are tied into the history of the Justice and Security Bill, as it was the case of Binyam Mohammad and the other Guantanamo survivors, that prompted the government’s move to extend the use of secret courts.
The Q&A session was also enlightening. Algar commented that this is a real opportunity for Labour to come out against the Bill. Rose shared some of her experiences as a Special Advocate in SIAC cases, stressing the terrifying reality that “they (MI5 and MI6) can’t even contemplate they could be wrong”. She also recounted one particular case, in which a client had his bail revoked in secret proceedings. Upon being called back into the Court and told he was being sent back to Belmarsh, the client asked the judge why and he replied, “Sorry, I can’t tell you.” That kind of Orwellian procedure contravenes fundamental principles of British fairness and justice. As everyone on Wednesday agreed, expanding CMPs to civil courts would undermine the ability of torture survivors to hold the British government to account in an open and just manner.
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 (albeit weakened) 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.
Click here to learn more about our No More Secrets campaign to prevent secret courts