By Heiba Lamara

Photo: Aisha Maniar

If passed, the unprecedented Justice and Security Bill currently being examined by a House of Commons committee will allow ministers to use secret courts known as ‘closed material procedures’ (CMPs) in civil court proceedings to suppress sensitive information where ‘national security’ may be at stake.

The controversial bill reached committee stage on Tuesday 29th January having been modified in the House of Lords to put ‘safe-guards’ in place, such as ensuring judges have the right to balance between public interest in the administration of justice and public interest in non-disclosure, before agreeing to the use of CMP in a case. These modifications, already considered feeble by many civil liberties groups, have since been undermined by a series of amendments made by the Government which effectively reverse the insertion of the safe-guards.

A closed material procedure (CMP) grants UK authorities the freedom to put forward evidence to a judge in closed hearings from which claimants and their lawyers are barred. This secret evidence, along with the resulting ‘secret judgement’, can be withheld from the claimant, their lawyer, the press, and the public indefinitely.

Unable to see or challenge the evidence in a CMP, the interests of the claimant are represented by a security-vetted Special Advocate who is allowed only limited contact with the claimant and their lawyer. For the excluded party, the amount of procedural fairness that can be provided in the closed material procedure is extremely limited, a fact consistently acknowledged by special advocates and other legal professionals who maintain that CMPs violate the right to a fair trial.

Advocates of the bill claim that the proposal will enhance procedural fairness by ensuring the trial of cases which could otherwise not be tried due to fears that sensitive information might be exposed. One of the key non-monetised benefits outlined in the Impact Assessment of the proposal is that, through the ability to suppress intelligence information, “the UK would also benefit from a reduction in reputational costs abroad and increased international cooperation”.

The last point refers directly to the origins of the bill which stem from the Government’s interest in concealing information regarding state complicity in unlawful imprisonment, illegal rendition, and torture. In November 2010, six former Guantanamo prisoners, Bisher al-Rawi, Jamil el-Banna, Richard Belmar, Omar Deghayes, Binyam Mohamed and Martin Mubanga, denied any involvement in terrorism and accused MI5 and MI6 of having “aided and abetted their unlawful imprisonment and extraordinary rendition”. Desperate to stem the steady flow of documents detailing top-level collusion, the Government paid out millions of pounds in a civil claim for damages.

Kenneth Clarke, then Justice Secretary now leader of the Justice and Security Bill, was reported by The Guardian at the time as stating that no admission of culpability had been made in settling the cases, but that the Government, having no recourse to CMP, “could not be certain that it would be able to defend departments and the security and intelligence agencies without compromising national security”. Plans were immediately put in place following the pay-out to ensure there would be no repeat of the situation, and it is this case which provides the basis for much of the evidence put forward by the Government for the necessity of the Justice and Security Bill being passed.

However, as stated by the Joint Committee on Human Rights (JCHR) in its submission, the Government settled claims to compensation in the Al-Rawi cases before the already available PII (public interest immunity) process had been fully utilised and before a final decision had been reached as to whether the court had the power to order a CMP to take place or not. The Supreme Court did in fact outlaw the use of secret evidence in civil court by the intelligence services later on in July 2011. As a result the JCHR argue that the Government has failed to prove the necessity of establishing CMP in civil court proceedings in place of non-disclosure procedures, like PII, which already exist.

Advocates of the Justice and Security Bill argue that it is fairer to place all evidence before a judge via a closed material procedure then to withhold important information due to security concerns and settle out of court. However, the evidence presented in a closed material procedure has been shielded from adversarial challenge and the rigours of the legal process, and a judge is therefore incapable of assessing the reliability of one side’s case.

In 2009, a JUSTICE report on secret evidence pointed out that “It is often assumed that, secrecy aside, the evidence in such cases is no different from that put forward in an ordinary criminal trial or civil hearing. Nothing could be further from the truth […] one of the central problems with the secret evidence besides its obvious unfairness is its dramatically poor quality”. The underlying assumption in the reasoning that a judge is better able to reach a fair result if provided with access to all evidence rests on the dangerous assumption that the state is incapable of error.

As a result of the spread of secret courts in the UK over the past decade, the emergence of a parallel ‘justice’ system for cases the Government claims are related to national security has developed and is becoming increasingly normalised. Since 9/11 the UK’s judiciary has increasingly conformed to the seepage of secret evidence. Employment tribunals, the Investigatory Powers tribunal which deals with complaints about the intelligence services, Special Immigration Appeals Commission hearings (SIAC), appeals against the imposition of control orders and asset freezing cases all play host to secret courts when faced with the Government’s claims that ‘national security’ will be affected.

Special advocates have insisted that there is no way of ensuring the use of CMP will remain exceptional once introduced in civil court proceedings, and that it is inevitable, as in the proceedings listed above, that once made available CMPs will replace the fairer common law procedures already available.

Amnesty highlights in its recent in-depth report, ‘Left in the Dark: The Use of Secret Evidence in the United Kingdom’, that the “defining characteristic of this alternative system is the ability of the state to subject individuals to judicial processes premised on secrecy, which places them at a significant disadvantage both in knowing and challenging the case against them and understanding how their own case is refuted”.

The bill undermines both an individual’s ability to call the Government to account, and to protect themselves against it. In the Equality Impact Assessment report which accompanies the bill, the Government admits that “the potential adverse equalities impacts are likely to fall on black and Asian Muslim men by virtue of their over representation in civil cases involving national security” which includes “men from the following racial groups: Asian, Middle Eastern, and North African; and from the following religion: Islam”. The expansion of the bill, through the further development of a two-tier system, will directly contribute to the removal of Muslim men and those around them from the culture of civil rights.

Under the mantle of growing national security concerns the Government has gone to great lengths to introduce measures to protect the interest of the authorities and its agencies, and withhold evidence relating to claims of Government collusion in torture. The accumulation of CMPs by the state as a means of protection raises valid concerns as to the scope of what might fall within the definition of national security at any given time, and what the state will be able to conceal in the future even in the face of public interest in disclosure.

If the bill is passed, the expansion of secret courts will irrevocably undermine an individual’s right to a fair hearing in court against the Government and their ability to call the Government to account, marking a fundamental break in the principle that no one is above the law.

Heiba Lamara is a writer and archivist based in London. Her column documents the increasing reliance on secret evidence and appears monthly. Follow her on Twitter @heibalamara.