Secret courts in Britain: blink and they'll be a reality

The Justice and Security Bill is moving swiftly through parliament. Few appreciate the true extent of the threat to civil liberties and an open judicial system. The clock is ticking for the right to a fair trial in Britain.

Aisha Maniar
5 March 2013

The Justice and Security Bill continues its sprint through the legislative process, heading back to the House of Commons yesterday for report stage. In spite of having come this far in just over nine months, and less than 18 months since the green paper on this issue was published, serious and fundamental questions remain unanswered. In the eyes of many, the case has yet to be made for the Bill. 

Although all three interrelated areas of the Bill are of concern, Part 2 on the issue of closed material procedures (CMP), or the use of secret evidence, has proved the most controversial: the Joint Committee on Human Rights (JCHR) stated in its second report on the Bill last week that it remained “unpersuaded” that there “exist a significant and growing number of civil cases in which a CMP is 'essential'.” In a note included with the report, Special Advocates, security-vetted barristers crucial to such procedures, reiterated their unchanged views: “that CMPs are inherently unfair and contrary to the common law tradition; that the Government would have to show the most compelling reasons to justify their introduction; that no such reasons have been advanced; and that, in our view, none exists.” (See Tim Otty QC for a thorough dissection of the proposed legislation and the evidence against.)

Nonetheless, following four hours of debate last night, the government’s plans for secret courts were approved by a majority of MPs when they voted in favour of the most recent amendments made to the Bill by the government. These reversed many of the amendments passed by the House of Lords, removing safeguards that many opponents said did not go far enough in the first place.

Claims of collusion in torture and rendition the Bill concerns cannot be underplayed. A major new report, Globalizing Torture, lists the UK among 54 states that actively took part in the CIA’s extraordinary rendition programme and cites some of the cases covered; the recommendations made on transparency and openness run counter to the provisions in the Bill. In an important recent report on the Bill, Neither Just nor Secure, MP Andrew Tyrie and Anthony Peto QC state that much of it appears “designed to address the awkward consequences of disclosure of wrongdoing; too little is being done to ensure that Britain closes the chapter on extraordinary rendition.”

The government maintains the position that the use of secret evidence is the “only (and highly unsatisfactory) option” to “ensure that civil proceedings brought against the Government are actually heard and resolved”, the alternative being costly pay-outs to victims in out-of-court settlements. However, it is surely in the interest of the taxpayer, who pays such settlements, to know where their taxes have been spent, even on torture? The Bill is shrouded in obscurity and complex legal arguments that exclude the wider public from this important debate.

The financial argument was exposed yesterday when Libyan rendition victims Abdul Hakim Belhaj, his wife Fatima Boudchar and a third victim agreed to settle their claim with the government in return for “£1 [each] and an apology”. Mr Belhaj had already been subject to secret trials in Libya. This argument also fails to provide assurances that the alleged behaviour is not ongoing: some of the claims are of misconduct that took place during the term of this government.

Opponents of the Bill remain unconvinced that CMP are the “only option”, yet alternatives have not been considered. Many opponents, within the legal field, believe that existing legal mechanisms provide adequate protection and ensure greater fairness to all parties. Concessions have been made, but as Messrs Peto and Tyrie also point out in their report, one of the possible unintended consequences of the enactment of Part 2 of the Bill is “that any type of civil case could be subject to a CMP.”

Several human rights NGOs had hoped that the vote in the House of Commons would result in “either entirely scrap[ping] Part 2 of the Bill (which contains the provisions for secret courts), or to reintroduce the House of Lords’ original amendments.” Instead Labour amendments to bring the Bill closer to the House of Lords’ proposals were defeated and the government’s amendments passed. Jack Straw, former Foreign Secretary and a defendant in a pending criminal case for involvement in rendition (see this piece by Yvonne Ridley), was unsurprisingly supportive of the government’s stand, in spite of being from the opposition. It is easy to see the convenient cover the Bill provides to many politicians across the spectrum and the intelligence services.

Four hours of parliamentary discussion last night and less than 18 months since this process was set in motion, generating a lot of controversy but little by way of productive debate, is not the best way of dealing with allegations as serious as torture and war crimes. As Henry Porter has pointed out, very few people in the country, much less in parliament, fully understand the implications of the Bill. MPs who do understand the attack in this Bill to 1) our civil liberties, 2) the right to justice belonging to victims of crimes against humanity and 3) our open judicial system, now have the option of voting against the Bill in its entirety if they do not wish to see the use of secret evidence extended further. For campaigners and opponents, the race is not yet over. It is ironic, however, that as we head towards the 800th anniversary of the Magna Carta of 1215, our legislators look set to pass laws that allow torturers to act with impunity and deny the most basic and cherished right to a fair trial.  

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