The Justice and Security Bill plans to extend the use of closed material proceedings to all civil trials – secret court hearings – allowing the government to present evidence behind closed doors in the interests of national security, writes Matt Evans.

• Photo by gipukan (Rob Gipman).

In 2010 the Court of Appeal ordered disclosure of CIA intelligence data in a case brought by former Guantanamo detainee Binyam Mohamed. This data (which was already in the public domain having been disclosed by US courts) confirmed – to the extreme discomfort of the government – that British intelligence services were complicit in the rendition and torture of is own citizens.

The case led to a Green paper on closed material proceedings (CMP) being hastily introduced in October 2010 – though not before the claims of Mohamed and other Guantanomo detainees had had to be settled to the tune of £15 million in order to prevent further disclosures.

The government argues that extending CMP will allow civil courts to hear currently excluded evidence – increasing (in their myopic eyes) procedural fairness – and limiting the number of cases that are struck out or withdrawn because of concerns (real or imagined) that to carry on will lead to sensitive security information being exposed to public scrutiny.

The wider justification – according to government ministers – is that without such greater protections then the confidence and cooperation of foreign security services will be lost and British lives endangered – British Muslims subject to water-boarding techniques in foreign/secret jails seem less of a concern.

Above the law
Critics argue that the extension flies in the face of coalition government promises of more ‘open justice’ and will undermine the rule of law and right to fair trial. The former DPP, Ken Macdonald, warned that the Green Paper’s proposals ‘threaten to put the Government above the law’.

At the moment the government has two ways to stop sensitive intelligence from being heard in open court;

• It can apply to a court (such as the special immigration appeals commission (SIAC)) to use CMP and – if the court agrees – the evidence is then presented in secret to a judge as part of the trial. A security vetted lawyer (known as a ‘special advocate’) is appointed and ostensibly acts on behalf of the defendant/claimant though they in turn can only disclose a vague summary of the evidence presented against their client.
• A request can also be made for a Public Interest Immunity (PII) certificate – this allows the government to withhold evidence that if disclosed they – and ultimately the judge – believe would be harmful to the public interest (such as the identities of police informers or the operation techniques of the intelligence services). Any decision on PII by the court has to weigh the public interest in exclusion against the interests of open justice and due process.

PII is at the moment the more common method used to shroud the workings of the intelligence and security services from any unwanted gaze. Crucially – and unlike CMP – evidence excluded under PII is not considered by the court. Verdicts are therefore at least reached on the evidence as seen and examined by all the litigants.

The importance generally of someone being able to see and respond to the case against them has been repeatedly highlighted by the courts – most recently in 2011 by the Supreme Court in the case of Al Rawi (PDF) which described such transparency as a constitutional and common law right – and that evidence which has been ‘insulated from challenge may positively mislead’.     

Pulling strings
In addition to obvious concerns around accountability and hiding the worst practices being utilised in the war on terror – it is also likely to lead to a diminution of the judiciary’s role in deciding if and how such evidence should be heard.

Although judges retain responsibility for authorising CMP, the Bill makes clear (at Clause 6) that they must approve a minister’s CMP application where interests of national security are concerned.

The previous need in PII cases to balance these concerns, with concepts such as ‘open justice’ have all but disappeared – like so many Guanatanamo detainees and Jack Straw’s memory of his time in ministerial office. In his evidence to the Joint Committee on Human Rights, David Anderson QC – the independent reviewer of terrorism legislation – agreed that this was the likely outcome.

‘The Judge’s hands are effectively tied …… the Government have given formal effect to the requirement that the judge should have the last word, but in substance the Secretary of State continues to pull the strings.’

The government in effect will become both a party to the litigation and a gatekeeper to the use of CMP in all civil cases. Non-state litigants for instance are not able to invoke CMP – nor indeed can Judges do so on their own volition.

At a time of increasing concerns and revelations around British collusion in rendition, torture and the use of drone strikes – the government has singularly failed to show any evidence to justify the extension of CMP in civil cases – in all likelihood because no such evidence exists (though perhaps they would argue that this evidence too is subject to CMP).