The slow creep of complacency and the soul of English justice

The government’s Justice and Security Green Paper and its plans to allow English courts to hold secret hearings is a threat to the basic principle of justice: the right to a fair and open trial. Tim Otty QC sets out his observations on the proposals, showing their potential to cause profound damage to the values Parliament is bound to protect.

The government’s Justice and Security Green Paper and its plans to allow English courts to hold secret hearings is a threat to the basic principle of justice: the right to a fair and open trial. Tim Otty QC sets out his observations on the proposals, showing their potential to cause profound damage to the values Parliament is bound to protect.

The following is an edited version of a full article to be published in the European Human Rights Law Review. Issue: 3 EHRLR 2012.

 “Our times, as Lord Scarman in his Hamlyn lectures noted, ‘are abnormally alive with fear and prejudice’, increasing the temptations of unfettered discretion, excessive deference, hasty legislation and the danger of abuse of power that usually goes with them – abuse that has led, in some countries, to extraordinary rendition, and even the qualified acceptance of torture”[i].

 - Roger Errera, former Senior Member of the French Conseil d’Etat, citing another of our greatest judges, Lord Scarman, in a tribute to the former Senior Law Lord, Lord Bingham.

The Justice and Security Green Paper proposes that a “Closed Material Procedure” (CMP) should be available for the handling of claims against the Intelligence Services of this country (and indeed any other Government defendant). This would allow a trial to be determined by reference to evidence heard in the absence of one party and his lawyers, leading to a reasoned judgment that they will never see. It is said that this will apply even, and perhaps particularly, where the allegations are as grave as can be conceived, relating to complicity by United Kingdom agents in torture and rendition.

Some context: the legacy of 9/11

This proposal is the latest in a long line of extraordinary developments which have taken place at the instigation of democratic Governments in recent times.

On 10 September 2001 it would have been unthinkable that within 5 years the Courts of this country would have heard arguments from Her Majesty’s Government seeking to support the indefinite detention of foreign nationals in peacetime, the admissibility of evidence obtained by torture, or the ability of the Executive itself to make Orders forcing an individual to relocate to a different city, confining him to a designated residence for 18 hours a day (and to a small geographical area in the remaining 6 hours) and prohibiting him from meeting anyone, anywhere, all on grounds of reasonable suspicion, not even the gist of which was to be disclosed to the individual concerned.

And yet all of this occurred between 2001 and 2006 in the wake of the terrorist atrocities of 11 September 2001[ii].

More startling still was the creation, and use, of the Guantanamo Bay detention facility by the United States, and the conduct of United States and United Kingdom forces in Afghanistan and Iraq, as revealed by the scandals of Bagram, Abu Ghraib and Baha Mousa.

In the spring of 2004, three days before CBS broke the story of the Abu Ghraib prisoner abuse scandal, the Deputy Solicitor General of the United States was arguing before the United States Supreme Court in the case of Padilla v Rumsfeld[iii], one of a series of cases to reach the Court concerning Executive detention in the ‘War on Terror’. He contended that there was no need for judicial oversight of such detentions because there was no risk that United States forces would ever engage in cruel treatment: the Executive could be “trusted”.

This submission was made despite the fact that 100s of images of prisoner abuse at Abu Ghraib were already in the possession of the Department of Defense and had been seen by a senior administration official, despite the fact that by this time – as Government leaks and official investigations would later show – the Secretary of Defense, Mr Rumsfeld, had, in February 2002, given written authorisation for the use of stress positions on detainees at Guantanamo Bay, despite the fact that two detainees had been beaten to death at Bagram airbase in December 2002, despite the fact that one detainee in United States custody had been waterboarded more than 170 times over a period of weeks, and despite the fact that numerous others held at Guantanamo Bay (including at least one child detainee) had been deliberately and systematically subjected to repeated “sleep deprivation”, or in the military jargon “frequent flyer programmes”, as well as other forms of abuse[iv].

As explained in more detail below, Guantanamo Bay was a detention facility to which, and at which, the United Kingdom’s former Labour Government encouraged the despatch and continued detention of this country’s citizens and former residents, and where it was quite content to send Intelligence Service officers for information gathering purposes. Guantanamo was merely the most public site of arbitrary detention where torture and inhuman and degrading treatment was used, and which was visited by MI5 and MI6 in the period after 9/11. More recently documents have emerged from Libya suggesting direct involvement by the United Kingdom’s Intelligence Services in the unlawful rendition, to Libya, of an opponent of the Gaddafi regime at a time when torture was known to be regularly practised there. Ironically the individual concerned would, in time, become one of the leaders of the Libyan rebel forces supported by the United Kingdom as they fought to remove Colonel Gaddafi from power[v].

Reputational damage?

It is against this rather stark background that the Coalition Government’s recent proposals for the provision of trials using a CMP and expressly intended to protect the “reputation” of the Intelligence Services fall to be viewed. It is in this context that Parliament will have to weigh the significance of expressions of concern by the United States Intelligence agencies, and our own Intelligence Services, at the public revelation of material relating to torture, and of complaints at the “reputational damage” that they are said to be suffering, and suffering unfairly, without the availability of a CMP.

Other views on Closed Material Procedures

There have already been very impressive contributions made to the consultation over the Green Paper. Foremost among these is that from 57 security-vetted “Special Advocates” [vi]. These are the only lawyers independent of Government, and with real experience of how such procedures work in practice, to have made any contribution to the debate. They have expressed the view, based on their extensive experience of CMPs in operation in other contexts that they are “fundamentally and inherently unfair” as judged by “any recognisable common law standards”. They have identified a host of practical limitations and problems with the operation of such procedures, and they have concluded that the Green Paper’s proposal is “insupportable”.

However respected and distinguished other commentators may be, and however much security cleared access they have been given, none of them have the same experience as the Special Advocates and none, to my mind, have been able to make any substantive challenge to what they have said. It is perhaps because of this that, when he gave evidence to the Joint Committee on Human Rights, the Secretary of State for Justice, the Rt Hon Kenneth Clarke QC acknowledged that the submission of the Special Advocates had caused him the greatest concern[vii].

My own experience is also limited. I have only the lowest level of security clearance, I have not been permitted to see “secret material” of the kind that the Government is apparently most concerned about and I have not acted as a Special Advocate. I have however had the chance to see how some of the litigation arising out of the War on Terror has looked to an “open” advocate, and so have at least some insight into the impression the use of “closed evidence”, “closed hearings” and “closed judgments” creates, and the risk of damage it causes to the reputation of the judicial system. I appeared as Counsel for amicus curiae (or friend of the court, giving advice and information) in the three United States Supreme Court cases relating to Guantanamo Bay. I have acted for six of the individuals made subject to Control Orders, including “AF” the Libyan litigant whose case ultimately forced a reading down of the Prevention Terrorism Act 2005 to require disclosure of at least the essence of the case against an individual. I have also appeared in the first of the hearings concerning the replacement of control orders, Terrorism Prevention and Investigation Measures, or TPIMs, and in deportation proceedings before the Special Immigration Appeals Commission concerned with Memoranda of Understanding intended to guard against a risk of torture and other abuse. Perhaps of greatest relevance to the current debate, I was one of a team of Leading Counsel who represented the Guantanamo detainees in the damages claim which is said to have caused such particular concern to the Intelligence Services as to render the proposals in the Green Paper necessary. 

The role of the Special Advocates and practical problems with any closed procedure

Against that background, and acknowledging both the limits on my own experience and expertise, and my own interest as an advocate in some of the related case law, I offer some observations on three aspects of the oral evidence recently given to the Joint Committee of Human Rights by Mr Clarke, and by the Minister for Crime and Security, James Brokenshire.

In his oral evidence to the Committee Mr Clarke asserted that there was “no reason why [Special Advocates] cannot call witnesses; they can call expert witnesses if they have expert witnesses”.

This assertion was unjustified by reference to any past fact, and is unsustainable. It is very surprising that the Secretary of State chose to make it a centre piece of his response to the criticism he said he was most concerned about.

No witness (expert or factual) could be effectively called without disclosure of the secret material, and that disclosure could not occur without a lengthy (months long) security clearance process. Any expert witness with Security Service experience would be unable to assist without the approval of his former employer, which, on the most likely hypothesis, would be the Defendant to the proceedings.

So far as I am aware, in the 15 years that the Special Advocate system has operated in one form or other, the Special Advocates have not once called a single witness. Given their uniform excellence as practitioners it would be surprising if this were through oversight or indolence. This is just one example of the practical impossibility of working an ordinary trial process with a CMP. Other examples relate to the impossibility of providing advice to litigants as to their prospects of success. Others concern funding and risk analysis more broadly. There appears, regrettably, to have been very little thought given by Government to how anything approaching an ordinary trial could operate: will funding be provided regardless of the content of closed material? What level of communication would be permitted between open advocate and Special Advocate? How could a system be created to allow the calling of evidence in response to the closed material? How would the Intelligence Services’ true case be “put” to a Claimant in cross-examination? How could appeal rights be exercised? There has, in this regard, been no attempt to distinguish between the limited statutory contexts where CMPs now operate (and where litigation is inevitable because it follows from a coercive measure taken by the State – e.g. a deportation order or a control order) and the ordinary civil claim context where a litigant is pursuing declaratory relief and compensation and must, constantly, undertake a cost / benefit analysis.

It is also no answer to the concerns raised to suggest that only a small part of any trial would be in secret. The entire premise for the Green Paper proposals, at least as explained by some commentary, is that some cases would be “so saturated” in sensitive material that an ordinary trial would be impossible. If that premise is right then it must follow that almost the entirety of the most significant aspects of the trial would take place in closed session and would lead to a “closed” judgment. This is a matter of particular concern if, as contemplated by the Green Paper and supported by some, a CMP could be ordered even without the parties and the Court testing the full extent of ordinary disclosure available by the conventional application of public interest immunity (“PII”) rules. The Green Paper, while focussing heavily on the reputational interest of the Intelligence Services, also fails to acknowledge the potential damage to the integrity of the judicial system if CMPs are to operate. To give just one example, how would the public view litigation where, in open session, the gravest of allegations of torture were made, and went unanswered, and then a one or two line set of reasons was given stating that “for reasons set out in a closed judgment” the claims failed? This is not fanciful. I have appeared in cases before both SIAC and the Administrative Court where the Secretary of State’s “open” case has been held to be quite insubstantial, but where very grave restrictions on an individual have been upheld for years on end entirely on the basis of material he has not seen.

National security

Another major theme of the evidence given to Parliament by Mr Clarke and Mr Brokenshire concerned national security. They each repeatedly asserted that the Green Paper proposals were necessary to protect national security. There is no rational basis for believing this to be so. There is no evidence that the existing PII system jeopardises national security. Either the Court rules in the Government’s favour on a PII application, in which case, by definition, no material is released. Or, if it rules against it, and the view of the Government remains that national security would be jeopardised then it is open to the Government to take a range of steps: either to concede the relevant point so as to render the disclosure irrelevant, or to concede the claim so as to bring an end to the proceedings. Again, on both bases, no material would be released. There is, furthermore, no instance cited by the Government of a single example in the last 40 years of national security being jeopardised by a Court ruling on a PII issue. The only case said to have caused problems in this regard is the Binyam Mohammed ‘Norwich Pharmacal’ litigation. That case did not lead to the public release of a single document or piece of information not already in the public domain in the United States.

The Guantanamo Case: 10 reasons for questioning whether the Intelligence Services had a meritorious defence that they were prevented from presenting

The third aspect of the evidence of Mr Clarke and Mr Brokenshire on which I would venture to comment concerns their views on the Guantanamo damages claim itself. In respect of that claim Mr Clarke made the following comments: “we had no defence without the evidence” and “I am inclined to believe the defence put forward. Indeed I do believe the defence put forward”. Mr Brokenshire appeared more bullish, going beyond an ‘inclination to believe’, to an assertion that the Security Services had a strong case. He said “I do not think the public would see it as right that Government has to settle claims where it believes that it has a strong case to defend but is unable to put that evidence before the court.

The ten matters set out below merit consideration in assessing whether, in truth, the Government was deprived of the chance to put forward a “strong case” in its defence to the Guantanamo claim of the kind Mr Brokenshire at least appears to have contemplated. They suggest that it may well be unsafe to base legislation of this profound constitutional consequence on assertions made by the Intelligence Services as to the nature of their past conduct, particularly in the extraordinary circumstances which prevailed after the terrorist attacks of 9/11. Finally they illustrate the importance of the powerful light that ordinary, open trial processes can throw on Executive misconduct through the discipline of open disclosure. If a CMP were available then it can confidently be expected that some of the documentation of the kind set out below would, at least in the first instance, only be deployed in that closed process with a real risk that it would never see the light of day at all[viii].

1.  The presumption of innocence

First, despite the incriminating allegations and insinuations made against the Guantanamo Claimants (the unfortunate references by Lord Carlile and others to “the Guantanamo suspects” etc.) not one of them has ever been charged with any terrorist crime by United Kingdom authorities, and not one of them has been placed under either a control order or TPIM. There is, furthermore, no suggestion whatever that any of them has done anything other than lead law abiding lives since their release from Guantanamo, and return to this country. 

2.  Knowledge of torture and rendition

Secondly, any plea by the United Kingdom’s Intelligence Services of ignorance of the wrongdoing of others is, to say the least, open to serious doubt. The Intelligence Services and the then Government of this country must have known, by at least December 2001 / January 2002, that there was a very real risk (at the least) that any individual suspected by United States authorities of involvement in terrorism would be subjected to extraordinary rendition, arbitrary incommunicado detention, and torture. Four dates merit particular emphasis: by 17 September 2001 President Bush had granted “new competences” to the CIA relating to the detention of terrorist suspects abroad and “selected foreign counterparts” had been briefed about them; by 28 September 2001 the Intelligence Services were deployed in Afghanistan; by October 2001 the Australian Security and Intelligence Organisation was expressing concern at the risk of rendition to torture of an Australian citizen in United States / Pakistan custody; and by early January 2002 Security Service officers had been physically present at an interrogation of one of the Guantanamo Claimants, an interrogation involving, so that Claimant has alleged, the repeated banging of his head against a wall by United States personnel. In the ‘Arar Report’ into rendition and torture of Maher Arar, a Canadian citizen, a Canadian Judge, Justice O’Connor, made damning findings as to what was “obvious” to Canadian authorities in respect of United States practices (and the risks in identifying Muslim and Arab men as “suspected Islamist extremists”) in communications with United States agencies “not even 2 months after 9/11”.

3.  Advocacy and support for Guantanamo

Thirdly, and despite this knowledge, documents forced into the public domain through the Guantanamo litigation suggest that different members of the former Labour Government actively advocated, and supported, the United States’ detention policies at the highest level from the outset. As early 10 January 2002 – months after the risk of torture must have been appreciated - the then Foreign Secretary, Jack Straw, would characterise detention at Guantanamo as “the best way to meet our counter-terrorism objective”. On 5 February 2002 a Foreign Office enquiry as to whether the United Kingdom should press for the return of British nationals was met by the response “don’t press for anything, No. 10”, an instruction which was the more striking for being recorded in a document which also acknowledged the potential for death sentences to be imposed by military tribunals, and claims by detainees to have been “softened up”. The tone apparently set by Downing Street and by Mr Straw would be followed across Government. On 21 January 2002 the then junior Minister Mr Bradshaw would tell Parliament that the Guantanamo detainees were “some of the most dangerous men in the world” (it is worth pausing here to consider the credibility of that remark when 10 years on less than 10 of the 779 men detained at Guantanamo have been convicted of any offence at all, more than 600 have been released without charge, and of those that remain more than 50 have been cleared for release). On 5 February 2002, perhaps acting on the same generalised and unevidenced basis, Mr Bradshaw was recorded as believing that “we need to do all that we can to avoid the detainees being repatriated to the UK”. On 22 February 2002 a Cabinet Office fax recorded the former Home Secretary Mr Blunkett’s view that “the longer they stay in Cuba / Afghanistan the better”, and a Home Office document dated 26 February 2002 recorded agreement that the “UK should not be in a hurry to take back the detainees” despite an acknowledgment that the “FCO was quiet on the point” and that the United States saw “the ball in the UK Court”.

4.  Facilitation of unlawful detention

Fourthly, even the very limited material disclosed prior to settlement of the Guantanamo claims showed that United Kingdom authorities directly facilitated the Claimants’ original detention, or played a significant and decisive role in determining whether, where and for how long they should continue to be detained. The case of one of the Claimants - Mr Mubanga - provided a particularly startling illustration of this. Email correspondence disclosed in June 2010 made it clear that when Mr Mubanga was first detained in Zambia, in March 2002, he would have been released and repatriated had the Prime Minister’s office not intervened to overrule the desire of the Foreign Office to offer consular assistance. It also demonstrated that the known consequence of this intervention was that Mr Mubanga would be surrendered to United States authorities, and transferred to Guantanamo. Mr Mubanga’s case was merely one vivid illustration of what the Guantanamo Claimants had contended was a wider pattern. One of the other Claimants was detained in Pakistan following provision of information by the Intelligence Services, two others likewise in The Gambia, recommendations arguing against release were provided to the United States in relation to others, and there was a systemic failure to provide exculpatory information in relation to all.

5.  A history of broken promises

Fifthly, the Intelligence Services’ consistent modus operandi included the provision, and breach, of a series of specific assurances of protection and assistance.  A range of specific instances illustrating such conduct could be given. For present purposes one particularly flagrant example suffices. While both men were still in the United Kingdom, the Intelligence Services promised two of the Guantanamo Claimants that it was safe for them to travel to The Gambia, before promptly providing their travel plans and flight details to the CIA, and identifying them as Islamist extremists linked to Al Qaeda. One of these men had also received further specific assurances from a Security Service lawyer in London that the Service would provide him with support in exchange for his assistance. That assurance too would be breached when the Security Service refused this man’s request for evidence in defending himself before the Combatant Status Review Tribunal established at Guantanamo, and failed even to inform Ministers of the true nature of his relationship with the Service until judicial review proceedings were commenced by his family.

6. Involvement in unlawful interrogation

Sixthly, the Intelligence Services actively participated in the interrogation of each of the Guantanamo Claimants, notwithstanding what must, on any sensible view, have been their knowledge of the unlawful nature of their detention, and the actual occurrence of torture in each of the principal detention centres with which these proceedings were concerned. They did this through the provision of questions to be asked, by the sharing of information (accurate and inaccurate) to be used in questioning, by the physical attendance of Intelligence Services officers at detention centres and, in some cases by the making of direct threats of rendition to torture. It is conduct of this kind which led the Attorney General to refer two cases for investigation by the Metropolitan police. The Divisional Court made powerful findings in this regard in respect of Binyam Mohamed but his case was merely the first one to reach the stage of judicial determination. As already pointed out one Claimant’s head was allegedly beaten against a wall in the presence of the Intelligence Services. Another case, that of Mr Deghayes, presents another striking instance. Intelligence Services documentation from mid-2002 describes Mr Deghayes as being brought into an interrogation in Bagram “manacled and hooded. When the hood was removed [he] looked pale and shaky”, complaining of the use of “head braces” and “lock-down positions”. Despite this it was considered appropriate for the Intelligence Services to interrogate Mr Deghayes further before a determination was made to disengage and “allow events to take their course”.

7.  A pattern of misinformation

Seventhly, there has been a deeply regrettable pattern of misinformation as to the state of the United Kingdom’s knowledge in relation to detainee ill treatment and rendition practices. This has led to misleading statements being made to the public, to the Claimants’ relatives, to the Intelligence and Security Committee (“ISC”), to the Courts and to Parliament. It is against this background that the denials of knowledge, misconduct or wrongdoing emanating from the Intelligence Services now should be assessed. The failure to keep Ministers informed about two of the Guantanamo Claimants - Mr Al Rawi and Mr Mohamed - has been documented by the ISC. The ISC was also seriously misled in relation to the Intelligence Services’ knowledge of United States’ practices at the time of the detention of two of the Claimants, Mr Al Rawi and Mr El Banna. The Services told the ISC that this detention in November 2002 represented “the first time that we suddenly we found that people were being taken by the Americans. I think it is the first time we experienced that completely in a different part of the world from Afghanistan”. That was a false claim which can only have been, at best, negligently or recklessly made: 10 months earlier on 17 January 2002 4 Bosnian citizens and 2 Bosnian residents had been seized by United States authorities from Bosnian territory and rendered to Guantanamo, 8 months earlier – after Downing Street’s own intervention – Mr Mubanga was rendered from Zambia, and 1 month earlier Mr Arar had been rendered from the United States to Syria[ix].

8.  A failure of leadership

Eighthly, there has, belatedly, been some recognition that something went badly wrong in terms of leadership and guidance in the months and years since September 2001, and that individual Intelligence Services officers were not well served by those in authority. As already indicated, criminal investigations of Intelligence Services officers were instigated and, at a policy level, new legal guidance to the Services has had to be provided. Even the simplest analysis of this new guidance shows that what occurred in respect of the Guantanamo Claimants could not have occurred had this guidance been in place and been followed.

9.  Court findings of wrongdoing

Ninthly, such scrutiny of the Intelligence Services’ conduct as has so far been possible by the Courts, has resulted in a very serious indictment of that conduct, and express findings to the effect that the Intelligence Services saw themselves as acting in conjunction with United States intelligence agencies. In the case brought before the Divisional Court on behalf of Mr Mohamed, Lord Justice Thomas and Mr Justice Lloyd Jones found that the Security Service officer – Witness B - who travelled to Pakistan to interrogate Mr Mohamed “saw himself as having a role to play in conjunction with the United States authorities in inducing [Mr Mohamed] to cooperate by making it clear that the United Kingdom would not help unless [he] co-operated”. The Court also held that the Intelligence Services had facilitated the unlawful treatment of Mr Mohamed even after they were aware of his mistreatment in Pakistan and his rendition to a third country for further interrogation. It concluded that their conduct went “far beyond” that of a bystander or witness to the alleged wrongdoing. This finding of complicity was not challenged before the Court of Appeal, and the Master of the Rolls made the following damning, but entirely justified, further observations:the Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that "they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services' general ethics, methodology and training" (paragraph 9 of the first judgment), indeed they "denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government" (paragraph 44(ii) of the fourth judgment). Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed  when he was held at the behest of US officials. I have in mind in particular witness B, but the evidence in this case suggests that it is likely that there were others.

10.  A junior partner can still be a guilty party

Tenthly, and finally, any proper and realistic appreciation of matters such as these shows that, had the Guantanamo claim been fought to trial, as the Intelligence Services now profess to have wished, they could have taken no refuge in any argument to the effect that other foreign agencies or individuals were primarily responsible for the Claimants’ ill-treatment, and that they could not therefore be held liable for it. In some cases – facilitation of detention, denial of consular access and breach of assurances being among the most obvious examples – direct liability would have arisen at common law without any consideration of the wrongs of others. But in any event, and in all cases, the evidence available at the date of settlement pointed to one conclusion: in the wake of the terrorist attacks of September 11th 2001 an approach was adopted whereby co-operation with the United States trumped all other factors. Ordinary rules would not apply, ordinary caveats to intelligence co-operation would be watered down or abandoned, reporting lines failed, ordinary territorial limits on agency activity were set aside, and a joint enterprise embracing rendition, arbitrary detention, and ultimately torture would be embarked upon.  Whether all of this involved the turning of a blind eye, or active and comprehensive knowledge throughout, is immaterial. Full liability would have followed in either event. The presence of another wrongdoer on the scene (even as a senior partner) would not have provided any defence. It is also perhaps worth asking why, if the Intelligence Services are correct that the Guantanamo claims could not be tried fairly, and the Courts had power to strike out the claims on this basis, no application to strike out was ever made.

Fundamental principle, ‘the slow creep of complacency’, and openness as ‘the soul of justice’

The title to these observations refers to the “slow creep of complaceny”. These words featured in Lord Hope’s judgment in one of the cases concerned with control orders, and secret evidence, to be decided by the House of Lords. He said this: "The slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the Court must stand by principle. It must insist that the person affected be told what is alleged against him."[x]

One of the most disappointing features of the Green Paper, despite judgments of this kind, lies in its failure sufficiently to acknowledge that the proposals it contains run counter to the constitutional safeguards and judicial traditions which this country has developed, and jealously guarded, over many hundreds of years. The proposal for secret hearings to be held at the behest of the Executive, or even pursuant to the exercise of a judicial discretion, is truly extraordinary, and should have been recognised as such. As Lord Shaw put it in another case decided at the beginning of the last century:

“To remit the maintenance of a constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand. It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. ‘In the darkness of secrecy, sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.’ ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’ ‘The security of securities is publicity’. But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: ‘Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence and the right of Parliament, without let or interruption, to inquire into and obtain redress of, public grievances. Of these the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions, and in their constant exercise.”[xi]

The role of Parliament and the defence of values

Assuming the Government presses ahead with the Green Paper’s proposals it will be for Parliament to decide how to respond. It should be in no doubt as to the constitutional significance of what is proposed. It will note the irony of a proposal which will subvert open justice and which appears to have, as among its prime movers, the Intelligence Services of this country, and of the United States of America, each of which has faced very substantial allegations of grave misconduct in recent times.  It will no doubt reflect hard on its own particular responsibility for protecting the values of our society and the integrity of our judicial system and its superb, and justified, reputation across the world. And it will have full regard to the dangers of “legal exceptionalism”, and the argument that exceptional times require exceptional measures. As to this last point it may wish to consider the words of Justice Albie Sachs of South Africa. In a lecture given in London in 2006, when speaking about the emergency detention laws which operated in apartheid era South Africa, he said this:

“When 90 days wasn’t enough, they needed 180 days [and then said] ‘but that’s not enough we need indefinite detention because they always exploit the fact that they know they can come out after a certain period’… That’s the problem with the exceptional. The exceptional becomes the normal and then it becomes too little and then you have to make it more exceptional and more exceptional and more exceptional. And the dagger aimed at the enemy in the end is plunged inwards, perforating the very character of your own society and rupturing precisely what it is supposed to defend”.

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References:

[i] EHRLR 2011 (p. 3).

[ii] A v Secretary of State for the Home Department [2005] 2 AC 68; A (No. 2) v Secretary of State for the Home Department [2006] 2 AC 221; Secretary of State for the Home Department v JJ [2008] 1 AC 385.

[iii] 542 US 426 (2004).

[iv] See “The Torture Papers: The Road to Abu Ghraib”, CUP 2005.

[v] See e.g. Independent 10 April 2012. Commenting on the allegations Sir Malcolm Rikfkind, Chairman of the Parliamentary Intelligence and Security Committee was reported to have described the case as "very worrying ... I think one's entitled to be extremely uneasy because, if he was rendered to Libya and if the UK intelligence agencies and the UK Government were involved, that is not only contrary to the policy the British Government has pursued for a long number of years, but also to the assurances that were given to the Intelligence and Security Committee and to Parliament as a whole". Despite claims from the Security Services appearing to indicate that this operation had had ministerial approval, the former Prime Minister Mr Blair has told the BBC he has no recollection of this case.

[vi] There are a total of 69 Special Advocates. None of the 12 who have not signed the consultation response have expressed any disagreement with the views set out.

[vii] See oral evidence of 6 March 2012.

[viii] Instead, following its disclosure, all of the material described was referred to at directions hearings in the litigation, and so entered the public domain (see e.g. “Classified Documents reveal UK’s role in abuse of its own citizens”, Guardian 14 July 2010; Gareth Peirce, Dispatches from the Dark Side (2012) Verso).

[ix] See fn. 5 above for a further example of what may have been the provision of misleading information to the ISC.

[x] Secretary of State for the Home Department v AF (No. 3) [2010] AC 269.

[xi] Scott v Scott [1913] AC 417.

About the author

Tim Otty QC is an expert in public law and civil liberties. He is a member of Blackstone Chambers and in 2008 won the Liberty / Justice Human Rights Lawyer of the Year award. He is a member of the Foreign Secretary's Human Rights Advisory Group.