The terror watchdog that failed to bark - Britain's secret justice legislation

Why did the terror watchdog with 'unrestricted access' appear to have only limited access to the security files on the government's secret justice bill, now shamefully going through parliament?

Jo Shaw
29 April 2013

For those who care about freedom in Britain, last month witnessed one of the more depressing votes in the last couple of hundred years. By a majority of just 16, the House of Lords rejected amendments to the Justice and Security Bill thereby ending its passage through Parliament. Presumably Royal Assent will follow in the next few weeks. The Justice and Security Bill, when passed, will permit the government to defend itself in secret.

The Justice and Security Bill ends, in one go, centuries of protections which have ensured fair trials in this country. The two protections ended are, first, what is called ‘equality of arms’ (the ability of a party to know the case they face, to see and be able to challenge all the evidence relied on by the other party, to call evidence in rebuttal if necessary, and to make submissions to the judge about that evidence), and, second, the principle of open justice – that justice is not only done, it is seen to be done. The Bill ends these protections in ordinary civil claims.

‘Civil claims’ does not just mean claims for damages, although those are included. It means claims for judicial review, contempt of court, and habeas corpus (the right to know why one is imprisoned and to challenge that imprisonment). It was therefore a truly terrible day for British justice and for democracy when this Bill passed in the Lords last month.

The impetus for the Bill came from the Security Services. They were embarrassed by the revelations of their involvement in kidnap and torture. This included not just “bad people” such as, they would argue, Binyam Mohammed, Saadi Al-Saadi and Abdul-Hakim Belhaj, but also, in the case of Saadi Al-Saadi, his wife and children, and in the case of Abdul-Hakim Belhaj, his wife who was chained to a wall for three days when she was five months pregnant.

Among the many interventions in the Justice and Security Bill’s sad and sorry journey through parliament have been those of the Government’s Independent Reviewer of Terrorism Legislation, David Anderson QC. He is a ‘watchdog’ - someone who is trusted by the State to know everything but charged with protecting the public good as an independent person above party and vested interests.

His role deserves telling to show how we have been failed by those appointed to help us as campaigners sought to show the true nature of the Bill and prevent its becoming law.

Mr Anderson was appointed in 2011. His website states the following:

“My reports and recommendations are based on conversations with a wide range of people who enforce or are otherwise affected by the terrorism laws in all parts of the UK, and on my reading which includes comparative materials and - crucially - unrestricted access to sensitive security documents.”

This sweeping statement does not hold up to scrutiny, at least in the case of the files from the Security Services he relied on in support of the Justice and Security Bill.

The background is as follows. The government issued a ‘Green Paper’ setting out its case for the proposed legislation. One of the ways the government sought to mask its significance was by calling secret proceedings ‘Closed Material Proceedings’ or CMPs. Their claim was that CMPs would only be needed to be used in a “small number of cases”. (Green Paper paragraph 2.4)

In an understandable and appropriate effort to establish how profound a change was proposed to the fair trial protections, David Anderson sought to find out how many cases would be affected by the Bill’s proposals. He sought information about the size of the problem and attempted to obtain details from the Security Services and the Ministry of Justice to justify the need for CMPs.

He did not make very much progress.

Part of Anderson’s role is to report to parliament’s Joint Committee on Human Rights. In his report dated 26th January 2012 he told them:

“8. Lack of information prevents me from expressing any firmer view in relation to the size of the problem. At my request, I was helpfully provided with further information on the pending cases referred to in GP Annex J para 11. Their subject-matter is various, ranging from damages claims for complicity in detention, rendition and torture to judicial reviews of naturalisation decisions. The Green Paper claims that “sensitive information is central” to them (which I do not doubt), and asserts that “in many of these cases judges do not have the tools at their disposal to discharge their responsibility to deliver justice based on a full consideration of the facts”. It stops short however of stating whether each of these cases could be fairly resolved only by means of a CMP. When I sought discreetly to pursue this question with the Treasury Solicitors‟ Department or with counsel instructed by them, I was told on instructions that it could not be discussed. Accordingly, while I think it likely that a problem does exist, I am unable to assist the Committee with any informed estimate of its size or gravity.”.

This lack of information troubled the members of the Joint Committee itself. In its first report on the Bill, the Joint Committee on Human Rights expressed its concern over the lack of clarity as to whether the number of relevant cases was “27, 15, 6 or 3” (paragraph 42)

“Pending receipt of a response to our latest attempt to clarify the evidential basis for the Government’s case for the provisions in Part 2 of the Bill, we remain unpersuaded that the Government has demonstrated by reference to evidence that there exist a significant and growing number of civil cases in which a CMP is “essential”, in the sense that the issues in the case cannot be determined at all without a CMP.”

To his credit, Anderson persisted in his requests for information. On 14 March 2012 he was shown seven cases by the Security Services – four claims for judicial review, and three damages claims. As he acknowledges via his Twitter account to a question I posed to him (his Twitter name is @terrorwatchdog):

David Anderson ‏@terrorwatchdog 14 Mar @_JoShaw @adamwagner1 I was shown 7 cases and did not press for details of the others.”

It is not clear why Mr Anderson was only shown seven cases. He is security cleared, there is no danger of any leak of information, he is entirely trustworthy where matters of national security are concerned, otherwise he would surely not have been appointed. So why were the remaining twenty, or so, cases hidden from him? What can have been the risks - if these cases existed, and if they helped show the nature of the problem behind the Bill surely the Security Services should have wanted him to see them?

More importantly for those who want our watchdog to protect us, why did David Anderson, “not press for details of the others”? He has remained silent about this, despite being asked publicly. Surely it was his duty to ask for those details? In order to advise the Joint Committee on Human Rights he needed that information. We, the public, needed him to be shown that information to understand, via his expertise, the risks to the public that our Security Services say they are facing due to these claims for damages for torture and kidnap. That is the point of having a ‘watchdog’.

@_JoShaw 14 Mar - @terrorwatchdog @AdamWagner1 What was the reason for you not pressing for details of the other 20 cases? #secretcourts

And why, despite his acknowledgement that he did not see all of these cases, does Mr Anderson’s website still claim that he enjoys “crucially - unrestricted access to security sensitive material”. When asked about this, again he did not reply.

@_JoShaw 14 Mar - @AdamWagner1 @terrorwatchdog "unrestricted access to sensitive security documents" - except for his J&SBill case requests. #secretcourts

‏@terrorwatchdog 14 Mar - @_JoShaw @adamwagner1 I was shown 7 cases and did not press for details of the others.

‏@_JoShaw 14 Mar - @terrorwatchdog @AdamWagner1 That's not "unrestricted access" though, surely? #secretcourts

(exchange abbreviated)

The question remains unanswered. The Justice and Security Bill has profound implications for all of us, for our ability to hold power to account, and to shine a light into the dark places where those whose duty is to protect us may break the law. Sunlight is the best disinfectant, they tell us, but in the case of this Bill, even the Government’s Independent Reviewer of Terrorism Legislation has been refused permission to bring the evidence into the light even while he himself is surrounded by a screen of secrecy.

It is a very, very bad day that we now have secret justice in this country in our civilian courts. But it is just as bad that our Parliament has legalised such an abomination while accepting that the Independent Reviewer of Terrorism Legislation, who is  supposed to scrutinise the claims of the Secret Service accepted a blindfold (blinkers?). At the very least our watchdog should have barked. 

Note: Royal Assent has now been granted and the Act is now law.

We published a response from David Anderson here.

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