I was very glad to read Tim Otty QC's careful dissection of the Coalition government’s secret justice plans, as proposed in the Green Paper on Justice and Security. His voice strengthens growing opposition to the plans, including a damning report published earlier this month by the Joint Committee on Human Rights (JCHR).
As Otty sets out, the plans would introduce, among other matters, legislative measures to extend the use of Closed Material Procedures (CMP) to potentially all civil proceedings. Such closed procedures have already existed for over 15 years in control order cases and national security deportation appeals before SIAC. This has involved secret hearings from which one of the parties is excluded, during which they are represented by a special advocate, a specially-vetted barrister who cannot communicate with their client once they have access to the secret evidence.
The procedure is frustrating, flawed and invites injustice. The final case is often determined on the basis of the secret evidence, rendering the open rationale for a case largely irrelevant. These particular statutory measures were introduced to deal with an exceptional circumstance; since 9/11, this exception has become the norm.
The existing CMP have been subject to much criticism; the same concern about a balance between fairness and national security in proceedings underline this part of the Green Paper too, showing continuing unease about their practical use. Another serious criticism is that the plans would give ministers, potential defendants in such cases, the power to order the use of CMP rather than judges, signalling a usurpation of powers of the judiciary by the executive.
Secret justice is injustice. As Otty's paper sets out in some detail, some of the harshest criticism has come from the special advocates who know this very well. In their submission, they branded CMP “inherently unfair” and attacked the “unsound premise on which the proposals […] are based”. The JCHR agreed strongly with their criticisms; Kenneth Clarke said he was “unsettled” by them.
Nonetheless, the government is not expected to back down. Instead, opponents of the “vague” plans hope concessions will be offered.
It is perhaps in this framework that Nick Clegg offered his belated contribution to a lively debate, on the same day as the JCHR report. He could provide the perfect foil to offer concessions on key points of contention, such as extending CMP to inquests.
The government has proved very well over the past few years that it cannot be trusted in such matters and has sought to extend the use of secret justice as result. For example in the Binyam Mohamed case, lawyers for the government warned the judiciary of overstepping its role; the judge hit back by advising the public and the courts to “distrust” government assurances on torture. In that case, ministers lied consistently to parliament for a number of years. The cases cited in the Green Paper are thus far an exception; on the other hand, the illegal behaviour the government is rebuked for seems to display a pattern.
The proposals constitute a “radical departure from the UK’s constitutional tradition of open justice and fairness”, as slammed by the JCHR. Blurring the line between the powers of the executive and judiciary is unconstitutional, undemocratic and unhealthy. Although secret justice appears to be confined to “national security” and “terrorism” cases for now, it has been creeping through the legal system for some time. In the case of inquests, this is the third attempt since 2005 to introduce CMP to such proceedings.
Much suspicion has been cast over the motivation behind the Green Paper. A growing opposition is arguing that there is no need to introduce CMP legislation and that the existing judicial procedures – public interest immunity, in camera hearings, etc. – are adequate and “flexible” enough to deal with sensitive material and cases. If the need arises, it can be dealt with on an exceptional basis. Many fear that the proposals are intended to protect the intelligence services here, as well as relations with foreign agencies.
What the government decides to do remains to be seen. The situation requires close monitoring from all quarters. Otherwise, who will protect the public from a “democratic” government who seem exceptionally prepared to swallow up the judiciary to protect itself against serious claims made by that very same public?