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Thursday 24th May 2012 | 07:00
Any government must ensure that national security information isn’t compromised, but must do so without unduly undermining the principle of open justice. It’s for that reason the Government’s proposed introduction of new secret hearings are flawed.
Open justice is a central pillar of our legal system: justice must be done and must be seen to be done. The principle underpins our nation’s standing as a beacon of justice and provides citizens with confidence in the workings of our courts. It’s part of the right to a fair trial, both in our common law and under the Human Rights Act.
At the same time, keeping our country safe means that intelligence information produced by our invaluable security services and our foreign partners cannot, and should not, be disclosed, something both will understandably want to limit. In their Green Paper the Government emphasised a reluctance of other countries to share their intelligence if there’s a risk of it entering the public domain. The Intelligence & Security Committee argue that ‘Norwich Pharmacal’ orders – that allow UK courts to order disclosure of sensitive material to those pursuing legal cases – is now seen abroad as creating that risk. It’s vital to consider those concerns and address them carefully. But rather than focusing on the specific problems of Norwich Pharmacal orders, the Government has responded by proposing in the Green Paper secret or ‘closed material procedures’ (CMPs) in our civil justice system as a whole. This includes ordinary civil claims against the Government and inquests into the deaths of loved ones.
The proposals are too widely drawn. No one, bar Government Ministers, has seen the 27 civil cases cited as justification. And in the absence of proper debate and explanation, it appears the concerns of our allies are being misused as a Trojan Horse for far-reaching upheavals to our entire civil justice system. Unsurprisingly diverse voices from civil liberties groups to the Royal British Legion – even lawyers who act for the Government – are opposed.
Proposed are secret court sessions, where evidence is shown only to the Judge and a ‘special advocate’ (an independent lawyer who cannot even discuss the secret evidence with the individual they represent). That evidence stays hidden if disclosure is deemed to be against the ‘public interest’ but it’s the Government, not a judge, who decides the ‘public interest’. The usual checks and balances giving proper scrutiny of government action are not present.
The proposals have become embroiled in coalition politics – Nick Clegg’s attempt to distance his party from a policy he endorsed is a deplorable way to deal with sensitive areas of policy. We were also assured that deficiencies with the Green Paper would be addressed before bringing forward legislation. But the Government hasn’t responded to concerns, particularly the critical report of the Joint Committee on Human Rights. Yet now the signs are a Bill is imminent. Swiftly moving to legislating is naive at best, foolhardy at worst.
However, process arguments distract from the seriousness of the proposals. Proffering poorly drafted fundamental changes to centuries of legal tradition without proper debate or evidential foundation is unacceptable. At the very least the proposals would require robust, powerful arguments as justification. So far, there have been none. Giving evidence to a Parliamentary Select Committee, Ken Clarke even misunderstood his own proposals, claiming judges would have the final say on whether a case is held in secret. In fact, the Green Paper makes clear that the judge’s role applies only to very narrowly defined judicial reviews, and not every case. Ministers retain the power on what is kept secret.
The Government also claims intelligence officers would be forced to give evidence in public courts unless these proposals are implemented. Our current system has different ways of coping with such difficulties. If there is a need for change, rather than a misguided rush to legislation, we need a proper debate about all the options available. This includes redacting evidence, confidentiality rings, anonymity, or reinforcing public interest immunity by placing it on the statute, backed by a rebuttable presumption. These may help to preserve our precious principles of open and fair justice and address concerns about sensitive intelligence material in open trials. It’s a shame the Government has considered them only half-heartedly.
Balancing civil liberties and national security is tough. With hindsight, Labour has learned where, on occasions, we got that balance wrong. We still bear the scars. That’s why we understand the importance of proper debate, and why we’re better placed than many to guard against repeating such mistakes, be it secrecy in our courts, or monitoring of email and internet communications. The Prime Minister’s claim that ‘sunlight is the best disinfectant’ is at odds with these proposals. Shrouding our justice system in secrecy without proper justification creates damaging mistrust and a dangerous gulf between governments and the citizens it is purporting to protect. Worst of all, it undermines the principle of open justice on which the credibility of our entire legal system depends.
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