A bill currently going through parliament threatens to close off justice from those at the sharp end of policing by extending secret evidence to civil proceedings.
On the face of it, the provisions of the Justice and Security Bill appear eminently reasonable. In civil proceedings (such as claims for damages), judges must withhold evidence from claimants if disclosure would damage national security. What is wrong with that? Surely only terrorists and their sympathisers could object.
But the Bill has attracted strong opposition, not only from organisations concerned with justice such as Liberty and Justice, but also from government-appointed lawyers who might be expected to support it. Special advocates, who act on behalf of those denied sight of evidence against them in national security-linked deportation cases and in proceedings where terrorist prevention and investigation measures (TPIMs) are challenged, are among those who say the Bill’s provisions are unnecessary, inherently unfair, will diminish confidence in the justice system and could lead to gross miscarriages of justice such as people being sentenced to death abroad for want of exculpatory evidence from the British security services. Their opinion carries weight, not only because they know closed material procedures from the inside and so are better qualified than most, including ministers, to assess their impact on the justice system, but also because they are presented by the government as the solution, the way justice can be done when national security prevents full disclosure to claimants and their own lawyers.
The Joint Parliamentary Committee on Human Rights has also been strongly critical of the proposals to extend secret evidence regimes to ordinary civil claims. Responding to the Green Paper which foreshadowed the Bill, the Committee accused the government of not providing evidence to justify closed material procedures, which were inherently unfair and would have profound and unconsidered effects on media freedom and democratic accountability.
The background to the Bill
The government decided it needed to extend so-called closed material procedures to civil proceedings because of two cases involving Muslims held at Guant?namo. Binyam Mohamed faced capital charges on the basis of confessions he claimed were obtained by torture in US custody. He sought disclosure to his security-vetted US lawyer of Foreign Office files which proved his claims true. But the files, which included intelligence material from US sources, also proved active complicity in his torture by British intelligence. Government lawyers tried hard to resist disclosure, which ministers claimed would irreparably damage UK-US intelligence relations and could put lives at risk as the US intelligence agencies would refuse to pass on material pointing to terrorist threats to the UK. Judges rejected the argument, largely because by the time they heard Binyam’s application for disclosure of the documents in 2010, the evidence had already emerged in the US courts and been accepted as true.
The following year, the Supreme Court rejected the government’s plea for secrecy when Binyam, now released, and other former Guant?namo detainees sued the government for damages for their wrongful detention, rendition and complicity in their torture and mistreatment abroad. Responding to government claims that the procedures would be fair because the judge would see all the evidence even if claimants wouldn’t, the law lords pointed out that ‘evidence which is unchallenged can positively mislead’. The closed procedures sought by the government breached fundamental common-law principles of open justice and fairness, they ruled.
The main provisions
The Bill says that in civil proceedings, a court must order a closed material procedure (CMP – where evidence is heard in the absence of one party, his lawyers, the press and the public) at the request of a government minister if disclosure would damage national security. The decision will be taken by a judge, a point which the Lib Dems claim as a huge victory which enables them to support the Bill (in the Green paper, the closed procedure was at the minister’s dictation). But their celebration is disingenuous – if there is any potential damage to national security, the judge has no discretion to allow disclosure in the public interest or in the interests of justice or fairness. Nor can he or she consider alternative ways to protect national security, such as redaction, anonymity orders, ‘confidentiality rings’ (where the material is disclosable to parties and their lawyers on confidentiality undertakings, but not to outsiders), or public interest immunity (where sensitive material is excluded altogether). In reality, the judges’ hands are to be securely tied.
Although closed material procedures are to apply only where national security is at stake, on the face of it a narrower range of circumstances than under the Green Paper (which would have allowed CMPs in any case where it was ‘in the public interest’ not to disclose evidence), the Bill’s failure to define national security allows the term to be stretched to infinite elasticity. The minister has said that CMPs would not be issued where the evidence related to non-terrorist crime and other government responsibilities, but a minister’s word is not binding. As Justice points out in its briefing, the government’s own national security strategy document covers a huge range of risks, ranging from cyber-attacks to flooding, epidemics, organised crime, disruption to energy and food supplies – a list likely to be used by government lawyers seeking to expand the range of material which can be kept secret. In national security, it is well known that ‘exceptional’ measures soon spread and become normal.he Bill also rules out any disclosure of ‘sensitive’ material sought by someone in legal proceedings involving a third party (the Binyam Mohamed situation). Again, the judge has no discretion, and material does not have to impact on national security to be concealed. It can just be embarrassing, as the material the security services sought to conceal in Binyam’s case was, revealing misconduct and collusion with torture.
The Bill does not subject inquests to the same rules, although this was proposed in the Green Paper (the third attempt in recent years to subject state killings to secret evidence regimes, following the parliamentary defeat of similar provisions in the 2008 Counter-Terrorism Bill and the 2009 Coroners and Justice Bill). But once again, there is a sting in the tail of this victory: the Bill would allow ministers to add inquests (and any other types of proceeding) by regulations, thereby avoiding full parliamentary debate. There is no guarantee in the Bill that this wouldn’t happen.
If the Bill becomes law, it is the over-policed Muslim and black communities which will once again be most directly affected, and it is not only attempts to hold the security services to public account which will be blocked. Policing of black communities is already almost wholly unaccountable, as the families of Azelle Rodney and Mark Duggan, both victims of police shootings well know. The Duggan family have no answer to their questions as to why Mark was tracked across London by thirty-one officers before his fatal shooting in Tottenham on 4 August 2012. Azelle Rodney’s family are no wiser about the operation leading to his killing at point blank range over seven years ago in April 2005, since his inquest was abandoned when officials withheld crucial evidence. The counsel for the public inquiry into his death which is to begin hearings in September has rejected the government’s claims that the evidence must be kept secret. Following legal arguments, the judge has ruled that the officers are to remain anonymous but that all except the one who fired the fatal shots must give evidence in open court. There are likely to be further arguments in that case about the evidence which Azelle’s family may hear. If the Bill goes through, the danger is that there will be many more cases where victims of police misconduct – whether it is repeated stops and searches, assaults, wrongful detention or pre-emptive orders such as those issued to keep suspected trouble-makers away from the Olympic stadium – who are denied redress on the basis of evidence they are not allowed to hear and cannot challenge.
But the encroaching secrecy for government officials in our courts has more wide-reaching and profound effects. Security service and police agents engaged in sensitive operations, knowing there is no risk of public scrutiny of their actions, inevitably cut corners and gradually a culture of impunity develops, a contempt for the rule of law. And those subjected to that abusive culture will have it confirmed, once again, that there is no redress for them in the courts – a knowledge which can only lead to more ‘justice by other means’ on the streets
Written by Frances Webber
 Special Advocates’ memorandum on the Justice and Security Bill submitted to the Joint Committee on Human Rights, June 2012.
 Human Rights Joint Committee – 24th report 2012-13: the Justice and Security Green Paper, March 2012 . The Committee is currently taking evidence on the Bill and will report again.
 R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 65.