Parliament Should Reject Unjust Proposals in Draft Law
December 18, 2012
Justice when you don’t know the case against you is no justice at all. The Commons should reject this expansion of secret hearings as fundamentally unfair.
Benjamin Ward, Europe and Central Asia division deputy director

(London) The British Parliament should reject proposals to expand the use of secret court hearings in civil cases. The House of Commons is scheduled to debate the measure, contained in the Justice and Security Bill, on December 18, 2012.

“Justice when you don’t know the case against you is no justice at all,” said Benjamin Ward, Europe and Central Asia division deputy director at Human Rights Watch. “The Commons should reject this expansion of secret hearings as fundamentally unfair.”

The widely criticized Justice and Security Bill would widen the use of secret hearings in the civil courts on national security grounds, excluding the person affected and his or her lawyer from the courtroom. Such hearings would undermine a basic principle of justice: the ability to know and challenge the case against you. Parts of the judgments in the cases would also be kept secret.

A separate section of the bill would change established jurisprudence by preventing, on grounds of national security, the disclosure of material showing UK involvement in wrongdoing by other countries.

A key argument put forward by the government to justify the expansion of the use of secret hearings, known as “closed material proceedings”, is that it cannot fairly defend itself against certain lawsuits because the evidence cannot be made public on national security grounds. The government asserts that as a result, it has had to settle cases it might otherwise have won.

But the government already has the ability to ask a court to strike out any case that it believes it cannot fairly defend. In several high profile civil actions against the UK government involving national security, the government settled the cases without seeking to strike them out. These include the al-Saadi case, over UK complicity in a Libyan dissident’s rendition to torture, settled on December 13, and another involving former Guantanamo Bay detainees from November 2010.

“The British government’s contention that it had to settle such cases is a red herring,” Ward said. “If they really couldn’t contest these cases because the evidence had to stay secret why didn’t they ask the court to strike them out before settling?”

The House of Lords amended the bill on November 21, in an effort to remedy the problems with expanding the use of secret hearings. The changes include discretion for the judge to decide whether a hearing should be secret; a requirement to use secret hearings only as a last resort; and a duty on the court to balance national security against fairness and open justice in deciding whether to allow secret hearings. In addition, either party would be able to apply for secret hearings, as opposed to the right being limited to the government. But these amendments do not change the fundamental unfairness of closed proceedings.

The expansion of secret courts has drawn widespread opposition from the legal profession, including the Law Society, the Bar Council, and notably the majority of the security-cleared lawyers – known as special advocates – who act in these closed hearings. The fact that the lawyers who know best how secret hearings work are among the strongest opponents of expanding their use is clear evidence of the flawed nature of the government’s plans.

In July 2011, the UK Supreme Court ruled that closed material procedures involve a departure from the principles of open and natural justice, which it said are essential features of a common law trial, and found that only Parliament and not the courts had the power to permit such a departure. But in considering whether to do so, Parliament should reflect on the judgment of Lord Brown, who wrote of the “damage done by a closed procedure to the integrity of the judicial process and the reputation of English justice.”

International law, including the global International Covenant on Civil and Political Rights and the European Convention on Human Rights, also requires the United Kingdom to respect everyone’s right to a fair and public trial in all civil as well as criminal cases.

Earlier versions of the proposals, announced in a government “green paper” in October 2011, were even wider, permitting the use of secret hearings in inquests and on wider public interest grounds beyond national security. Those proposals were later dropped.

The government’s plans to widen the use of secret hearings were announced by Prime Minister David Cameron in July 2010 alongside plans for an inquiry into UK complicity in torture and rendition, and changes to the guidance given to security services about interrogating suspects held outside the UK. The announcement came after a series of embarrassing revelations under the previous government about UK knowledge and involvement in US and other government’s abuses against British citizens and residents in Guantanamo Bay, Pakistan, and elsewhere.

The prime minister told Parliament in July 2010 that it was necessary to permit the expanded use of secret hearings because the security services were being “paralyzed by paperwork” and Britain’s intelligence relationship with the US was being put in danger by public disclosure of US intelligence material shared with London.

”Given the context in which the proposals to expand secret hearings emerged and further evidence of British wrongdoing that has since come to light, it’s hard to avoid the conclusion that a key motivation of the proposals is to ensure that if abuses are repeated, they will never see the light of day in British courts,” Ward said.