BRITAIN: Secret courts: the essential guide

Secret courts: what they don't want the British people to know

Yvonne Ridley

October 7, 2012 Yvonne Ridley on the 'secret courts bill' heading through the Lords, just as former ministers and MI6 officials face the prospect of public court appearances over torture allegations. Liberties and freedoms enshrined in Magna Carta more than 800 years ago are under threat from the British government’s plans to deliver a bill that undermines the principle of open justice. This piece will look at the context in which the Justice and Security Bill, or 'secret courts bill’ as it is nicknamed, is being pushed through and the powerful resistance to the legislation.  The bill is passing through the House of Lords while the country still reels from the most recent Hillsborough inquiry, which exposed a wide-scale cover up involving the police, politicians, and members of the emergency services. It took more than two decades for the truth to surface after the deaths of 96 Liverpool football fans at the stadium in Sheffield, and during that period ordinary people and their communities were demonised by those placed in a position of trust. The toxic legacy of Hillsborough should be followed by more transparency, not more secrecy. Yet the Justice and Security Bill has the potential to make it far easier for such cover-ups to take place.  Furthermore, the bill is being proposed at a time when former ministers from the Blair government including Jack Straw as well as senior establishment figures in the Secret Intelligence Services and Whitehall face the unprecedented prospect of being questioned by Scotland Yard detectives investigating claims of British collusion in the US rendition and torture programme. Crucial evidence of the UK's role in at least two US-led renditions is detailed in a number of documents held by the Libyan security services, which came to light subsequent to the fall of the Gaddafi regime. Britain’s role in the rendition of Libyan rebel leader Abdul Hakim Belhadj is pointed to in a letter from Sir Mark Allen, former director of counter-terrorism at MI6, to Moussa Koussa, Head of the Libyan intelligence agency at the time. Dated March 18 2004, Sir Mark writes about how grateful he is to Koussa for helping to smooth the way for Tony Blair’s latest visit to Colonel Gaddafi. He adds: "Most importantly, I congratulate you on the safe arrival of Abu Abd Allah Sadiq [aka Abdul Hakim Belhadj]. This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over the years. I am so glad. I was grateful to you for helping the officer we sent out last week."   It also emerged another rebel leader Sami Al-Saadi was detained whilst flying from his home in Hong Kong to the UK with his wife and four children – the youngest a girl aged six. The family were forced onboard an aircraft bound to Libya two days after Blair's famous visit. The 45-year-old former Libyan Islamic Fighting Group commander, who was committed to over-throwing Gaddafi, believes documents discovered after the tyrant's death show British personnel were instrumental in his detention and rendition. Both he and Belhadj spent more than six years in custody where they say they were subject to torture. Legal papers were served in April on the former Foreign Secretary Jack Straw by Belhaj’s lawyers Leigh Day & Co and also lodged at the High Court. The documents clearly accuse Straw, Allen, MI6, MI5, the Foreign Office and Home Office of being liable for the false imprisonment as well as "complicity in torture and/or inhuman and degrading treatment; conspiracy to injure; conspiracy to use unlawful means; misfeasance in public office and/or negligence" suffered by the Belhadj and al Saadi families.  Sami al-Saadi with his daughter The prosecution may fail. The accusations may turn out to have no foundation at all. But stand or fall the case must be held in an open court so that justice is seen to be done. Under the current judicial system the proceedings would be open to journalists and members of the public. However, should the Justice and Security Bill be passed through Parliament this year in its present form then it is almost certain that both the press and the public will be denied access to the trial. Human rights lawyer Saghir Hussein said of this prospect: "What this means is that everyone outside of the court proceedings will not know who has been charged or the detail of what they have been charged with. Even the defendants may not be allowed in to the proceedings and may never find out why the charges have been brought, why they have been charged and what is the evidence against them. In other words they lose the right to defence. Nor will those seeking justice be allowed in to the court to see what is happening to their alleged tormentors". He added, "It has not been lost on anyone that the drive for this new legislation emerged around the same time some very powerful people in very powerful places realised they could be forced to give evidence in an open court..." The resistance Last week, the London-based NGO Cageprisoners launched a campaign from the House of Commons, No More Secrets, to kill the proposed legislation. Respect MP George Galloway opened the press conference by talking about the need for transparency following the Hillsborough inquiry, saying: "When I learned that the police had systematically falsified the truth in literally 168 statements including allegedly at a high level, and the fact that this was all covered up for 23 years and would have remained a secret if it were not for the campaigning zeal, fortitude and courage of the families of the 96 football fans, then it struck me this is what secret courts would be like. One would never know the truth but it would be legal this time to cover those truths up." Following on from Galloway, Natalie Bennett, the new leader of the Green Party, said: "Closed justice, not open to the scrutiny of the media or the public, is no justice at all and these closed courts further undermine an absolutely critical principal of the British legal system that everyone is equal before the law; because what it is doing is putting the government above the law." Moazzam Begg, a director of Cageprisoners and former Guantanamo detainee, concluded the press conference by arguing that the introduction of secret courts would destroy the reputation of British justice, which has been respected and exported around the world. It can take years for a campaign to attract enough pressure to force the hand of authority, as witnessed over Hillsborough; but the momentum against Clarke’s Justice and Security Bill has already built up a full head of steam. Opponents are diverse and drawn from all political parties, human rights groups and the legal profession. Some of the most eminent names in human rights circlesexpressed concern about the legislation in The Guardian earlier this year. Former shadow home secretary David Davis is vehemently against the bill, as is the controversial Labour MP Paul Flynn who has added his full weight to the No More Secrets campaign. One of the most powerful opponents is Lord MacDonald, the former director of public prosecutions, who has made clear his view that the bill would invite ministers to seek to hide "awkward or embarrassing" actions under the guise of protecting national security. On the same day as the Cageprisoners campaign launch, the issue was being discussed at the Liberal Democrat conference. Jo Shaw, a former parliamentary candidate, tabled a motion in Brighton to withdraw from part of the bill. She said: "This motion is not saying that all the security services or government officials or police are bad or corrupt. But some may be. Some may make mistakes and wish to cover them up. Part two [of the bill] will allow a few bad apples to rot our judicial system from behind closed doors. In simple words, this is a bad bill." The Justice and Security Bill will undermine public faith in the judicial system, a system which, as Moazzam Begg pointed out, is admired and embraced around the world. If this bill becomes a reality we may never find out what is being done in our name, behind closed doors. Yvonne Ridley is a patron of Cageprisoners. She produced and narrated the documentary 'Lies, Spies & Libya’, directed by award-winning film-maker Hassan al Banna Ghani. For details of the documentary, to be shown as part of the nationwide No More Secrets tour, see the Cageprisoners website. Source: Open Democracy  -------------------------------------- Secret courts: the essential guide Is the justice and security bill a threat to fundamental legal liberties or a necessary veil to protect state secrets? Here's what you need to know about the expansion of trials behind closed courtroom doors Owen Bowcott and Ian Cobain guardian.co.uk, Tuesday 25 September 2012 06.00 BST 1. The issue at a glance 2. The legal origins 3. Why are secret trials in the news? 4. A short history of secret hearings 5. What's next? 6. The main arguments against the bill 7. The main arguments for the bill 8. What will disappear behind closed courtroom doors? 9. Key players 10. Glossary 11. FAQ 12. The final word 1. The issue at a glance The justice and security bill's most controversial element is the extension of secret courts, known as closed material procedures (CMPs), into the civil courts in England and Wales. Opponents believe the powers will enable ministers, rather than judges, to manipulate the way evidence is withheld or presented in the courts – depriving claimants of a fair trial. The government claims the reform will enable judges to hear a greater range of national security cases. The bill also alters parliamentary scrutiny of the intelligence services. 2. The legal origins In May 2010, the government was forced to pay out millions of pounds in compensation to Binyam Mohamed and other former Guantánamo Bay detainees.  Binyam Mohamed, the UK resident secretly rendered to Guantánamo Bay, whose case sparked the row over intelligence disclosed in court. Photograph: Shaun Curry/AFP The settlement came after the court of appeal rejected requests by MI5 and MI6 that they be able to present security evidence in secret without disclosing it in full to the claimants. "Trials should be conducted in public and the judgments should be given in public," the judges ruled. Rather than reveal "sensitive" intelligence, the government settled out of court claims for wrongful imprisonment and complicity in torture. The result, according to the former justice secretary Ken Clarke, has been a "UK justice system unable to pass judgment on these vital matters". Claimants, he argues, are denied any judicial findings while the intelligence agencies cannot clear their names. The government says the justice and security bill is designed to ensure such a predicament never recurs by extending the use of secret courts while preserving intelligence-sharing with the US and other allies. Without transparent justice, critics counter, abuses of power will remain hidden. 3. Why are secret trials in the news? The legislation, introduced in the House of Lords, has provoked deep anxiety among civil liberties groups, senior lawyers and politicians who fear it is the thin end of a wedge, overturning long-established, common law precedents about fair and open justice. Parliament is due to vote on the proposals this autumn. The Labour party supports some elements but argues that the secret court developments are "too widely drawn" and create "damaging mistrust and a dangerous gulf between government and the citizens it is purporting to protect". The bill is also sharpening divisions between Liberal Democrats and Conservativeswithin the coalition. The prime minister, David Cameron, justified secret hearings on the grounds that "... it isn't currently possible to use intelligence information in a court of law without sometimes endangering national security". 4. A short history of secret hearings Closed, or "in camera", hearings are not unprecedented. Cases in the family division of the high court relating to child custody and divorce issues are regularly held in private. Public interest immunity (PII) certificates date back to the mid-20th century and empower courts to make an order, usually at the request of the government, preventing disclosure of secrets if their release is deemed damaging to the public interest. Neither side in such cases can rely on the withheld information. So-called "closed material procedures" (CMPs) go one stage further, enabling authorities to introduce sensitive information in a trial that can only be seen by the judge and security-cleared "special advocates" who represent the interest of an individual claimant. The special advocate may not give his or her client precise details of the evidence and can only provide a "gist" or loose summary. The claimant may not therefore be aware of all the allegations being made. Critics say this results in parties to a legal dispute no longer being on an equal footing, tilting the advantage in the government's favour.  The Royal British Legion and Nick Clegg pressured the government to exempt coroners' courts from the bill. Photograph: Jeff J Mitchell/Getty Images CMPs are used in employment tribunals, special immigration appeals commission (SIAC) hearings and the investigatory powers tribunal (IPT), which handles complaints about the intelligence services. The justice and security bill would extend closed material procedures into the main civil courts, allowing the government to exploit intelligence material to defend itself against allegations such as torture. In April 2012, parliament's influential human rights committee, which draws members from both the Lords and Commons, condemned the government's justice and security green paper proposals for failing to make the case for extending CMPs into civil proceedings or inquests. "The rule of law requires that decisions about the disclosure of material in legal proceedings be taken by judges not ministers," it declared, "and the current legal framework of PII has not been shown to be inadequate." Under pressure from the Royal British Legion and Nick Clegg, the Liberal Democrat leader, the government agreed in May to exempt coroners' courts from the newly introduced bill. The prospect of grieving parents of servicemen killed in Afghanistan being barred from security-sensitive sessions of an inquest into the death of their son or daughter and never discovering why they had died was judged to be politically indefensible. In September, the Liberal Democrat party conference voted overwhelmingly to reject the bill. 5. What's next? The first test of parliamentary enthusiasm for the bill comes this autumn when peers vote on the report stage of the bill. The legislation also contains clauses on changing the mechanism of parliamentary oversight of the intelligence services and is likely to provoke intense debate in the Commons.  Jack Straw, who faces legal action over claims that he personally permitted the illegal rendition of a Libyan dissident in 2004. Photograph: Andy Rain/EPA In the meantime, a practical test of how courts handle security sensitive information is due to come before a high court judge, Mr Justice Mitting. A case has been brought against the Foreign Office by Noor Khan, whose father, Malik Daud Khan, was killed in a CIA air strike in Pakistan by a drone in 2011. The UK is alleged to have been involved because it shared intelligence with US agencies. The preliminary hearing is expected to deal with the question of whether the case can be heard without resorting to a closed material procedure. Lawyers acting on behalf of two Libyan families who are bringing proceedings against the British government as well as Jack Straw and former MI6 counter-terrorism official Sir Mark Allen, following their rendition to Tripoli, are also moving quickly in the belief that the families will be denied justice once the bill becomes law. 6. The main arguments against the bill • Secret justice cannot constitute a fair trial and could damage public confidence • The existing system is not broken • Judges, not politicians, should decide • Evidence of torture will be suppressed by the new generation of secret courts Secret justice cannot constitute a fair trial and could damage public confidence  Critics point to a key passage in the supreme court's decision in 2011 on Al Rawi v the security service (pdf), in which Lord Kerr asserted: "Evidence which has been insulated from challenge may positively mislead … the right to know the case that one's opponent makes and to have the opportunity to challenge it occupies … a central place in the concept of a fair trial." Also, the bill is silent on the open justice principle. Thejoint committee on human rights described this silence as "a serious omission". Thegovernment's own impact assessment conceded that the proposed new law could undermine public confidence in the court system (pdf). There are concerns that the billmay have an adverse impact on the Northern Ireland peace process. The existing system is not broken Most damaging for the government's case is the opposition of special advocates who already operate CMPs in SIAC and other specialist courts. In their submission to the government's green paper proposals (pdf), they declared: "There is no fundamental difficulty with the existing principles of public interest immunity (PII), which have been developed by the courts over more than half a century and which enable the courts to strike an appropriate balance between the need to protect national security (and other important public interests) and the need to ensure fairness." Judges, not politicians, should decide In the face of criticism, the government agreed that a minister alone should not be able to order a CMP. That reassured few experts. David Anderson QC, the independent reviewer of terrorism legislation (pdf), pointed out residual problems when questioned in parliament in June. "Under the procedure devised in the bill, the judge does have the last word," he said. "The only difficulty is that that word is dictated to the judge by the secretary of state. First, the judge can make a decision only if the secretary of state makes an application and has no other jurisdiction to consider it. Secondly, when the judge does come to consider it, it is not for him to weigh up the relative merits of PII or CMP, or to decide what the fairest way would be to decide the case. The judge's hands are effectively tied."  The United Nations' special rapporteur on torture has intervened in the UK secret courts debate. Photograph: Joshua Lott/Reuters Evidence of torture will be suppressed by the new generation of secret courts The United Nations' special rapporteur on torture, Professor Juan Méndez, an Argentinian, has intervened in the UK debate, warning that wrongdoing by security and intelligence agencies if undisclosed will not be confronted. "If a country is in possession of information about human rights abuses, but isn't in a position to mention them, it hampers the ability to deal effectively with torture," he told an audience at Chatham House in London in September 2012. The fact that the government has applied for the use of closed material procedure in a court case in which it is a defendant could itself be kept secret. 7. The main arguments for the bill • Cases that cannot now be tried will receive justice • Not perfect but better than nothing • Intelligence services will become more accountable • Security co-operation with our closest allies is at risk without legal reform Cases that cannot now be tried will receive justice  Ken Clarke spelled out in the foreword to the green paper (pdf) his rationale for expanding the use of CMPs. "... the UK justice system [is now] unable to pass judgment on these vital matters: cases either collapse, or are settled without a judge reaching any conclusion on the facts before them.  Former justice secretary Ken Clarke spelled out his rationale for expanding the use of CMPs. Photograph: Dave Thompson/PA "It leaves the public with questions unanswered about serious allegations, it leaves the security and intelligence agencies unable to clear their name, and it leaves the claimant without a clear legal judgment on their case. "... The prize is improved executive accountability, a court system equipped to handle sensitive material, and security and intelligence agencies that are able to get on with their job: a safer Britain, a fairer Britain." Not perfect but better than nothing The former independent reviewer of terrorism legislation, the Liberal Democrat Lord Carlile, describes the debate as involving "finely balanced issues". He comes down on the side of extending closed material procedures. "The puritans in this debate demand that 'open justice' must be protected, whatever the cost to the public and to the intelligence needs of our country," he wrote this summer. "Subject to some fine tuning, the government is on the right track with a responsible piece of legislation … It should not be forgotten that claimants themselves have consented to closed hearings, realising that they were the only way in which their concerns would be properly scrutinised – one reason why I believe the government should ensure that both parties in a case can apply for a CMP." The current independent reviewer, David Anderson QC, believes the proposals would be "tolerable" as a last resort. He said there is "a small but indeterminate category of national security-related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP – for all its inadequacies – should exist." Intelligence services will become more accountable  The security services, who have lobbied for and publicly supported the bill, insist that nothing currently revealed will be hidden in future. In a speech at the Mansion House this summer, the director general of MI5, Jonathan Evans, declared: "At present our ability to account for our actions in the courts is constrained by the fact that sensitive national security related material relevant to civil proceedings can only be considered in open court. This means that such material cannot in practice go into court at all. This situation is bad for us, bad for the other party to proceedings and bad for the administration of justice. "... No material that is currently considered in public will be made secret under the new arrangements and the effect will be that more, rather than less, material will go before the courts. But the sensitive material will be protected. This will mean better justice and better accountability." Security co-operation with our closest allies is at risk without legal reform  Malcolm Rifkind, the former defence and foreign secretary, believes that "foreign intelligence material provided by another country on the strict promise of confidentiality" should remain behind closed doors. "Many of the most serious terrorist plots in the UK in the past decade have had significant links abroad, so foreign material is often vital for the protection of the UK. When other countries share material with us, they want to know that we will protect it. It still belongs to them and is controlled by them: it is not ours to do with as we wish. This 'control principle' is sacrosanct and we must not break it. If we do, foreign agencies will not trust us and will not share material with us in future." 8. What will disappear behind closed courtroom doors? Critics of the bill fear that a host of security scandals unearthed with the help of court challenges, including allegations of torture and secret rendition, would never have been exposed under the bill's proposed system of closed material procedures. Even fundamental personal rights such as freedom from imprisonment, guaranteed by the ancient writ of habeas corpus, might be compromised by the new regime, peers have suggested. The fact that a court could sit in secret without giving notice to the public or the media of a forthcoming hearing has drawn comparisons with the excesses of privacy superinjunctions. The government dismisses such claims as alarmist. While the government claims that the proposals are intended to protect the control principle that covers intelligence provided by foreign governments, the material sought in the Guantánamo case were mostly internal British government communications, and their disclosure caused grave embarrassment. The government says claimants will receive a summary of the closed material sufficient for them to instruct the special advocate representing their interests. The US government made its first complaint that disclosure in the Binyam Mohamed case would damage the UK-US intelligence sharing relationship only after the foreign office asked it to do so. 9. Key players • Ken Clarke, now a cabinet minister without portfolio but with a place on the National Security Council, will continue to steer the legislation through parliament even though no longer justice secretary. The Cabinet Office is now in charge of the bill.  Some key figures in the secret courts debate: (clockwise from top left) Lord Lester, Shami Chakrabarti, Jonathan Evans and Sadiq Khan. Photograph: Rex Features/PA/Sarah Lee for the Guardian • Jonathan Evans, director general of MI5 – said by opponents to be the moving force behind the secret courts bill. • David Anderson QC, the independent reviewer of terrorism legislation, occupies a pivotal position in the debate with government, intelligence agencies and civil liberty groups all trying to recruit him to their cause. • Lord Lester, the veteran Liberal Democrat peer and civil liberties campaigner, has been active in the Lords attempting to insert safeguards "for the principle of open justice" into the bill. • Sadiq Khan, Labour's justice spokesman, is influential in deciding where his party strikes the balance between civil liberties and national security. It is an issue on which, he admits, the party "still bears the scars" following Iraq, Afghanistan and the war on terror. • Shami Chakrabarti, director of the human rights group Liberty, is a determined opponent of the bill. She warns that the security services will be able to defend allegations of misbehaviour behind closed doors by hiding behind the mantra of "national security". Other groups such as Reprieve and Justice are active campaigners against the proposals. • Dinah Rose QC, a leading barrister who has appeared as a special advocate, is a prominent critic of the bill. Her Atkin Memorial lecture, Beef and Liberty: Fundamental Rights and Common Law (pdf), is an impassioned rejection of the proposals. 10. Glossary Closed material procedures (CMPs): secret court hearings where only the judge and security-cleared special advocates are given access to sensitive intelligence material. Special advocates: the security-vetted lawyers who are permitted to participate in CMPs, representing claimants or the government. Gisting: special advocates are permitted to disclose to clients a simplified summary or "gist" of intelligence material used in secret hearings while withholding specific details. Norwich Pharmacal court orders: developed to identify alleged infringers of intellectual property rights such as patents, one was deployed in the Binyam Mohamed case to try and force the UK government to hand over sensitive security material obtained from the US. 11. FAQ Is this the end of fair trials? Critics claim that under a CMP, the legal playing fields are no longer even, entrenching the government's advantage in any secret court case. The government insists such measures will only be used in a very limited number of cases and that courts, including Strasbourg, have found that CMPs are capable of delivering fair trials. Have UK courts ever exposed US military secrets?  No examples have ever been given of past "betrayals" of confidential intelligence material obtained from allies. However, the government argues that the overturning of the Foreign Secretary's PII certificate in Binyam Mohamed - and publication of seven paragraphs of advice - caused damage to the US-UK intelligence-sharing relationship and national security. How large is the problem?  The number of civil cases affected is likely to be small but it is the expansion of the principle of closed material procedures that worries civil liberties groups. In the justice and security green paper, the Treasury solicitor's department claimed that "sensitive information was central" to 27 cases then before the courts. A great many cases against the British government that arise from the Troubles in Northern Ireland are, however, now being prepared by lawyers in the province, and the disclosure that British special forces were involved in the mass detention of Iraqi civilians, possibly unlawfully, following the 2003 invasion, means that the government cannot be sure how many arguable claims it could face in the future as a result of that conflict. 12. The final word • "No country allows [spies] to give evidence in court. You'd have terrorists in the public gallery lining up making notes" – Ken Clarke, when justice secretary. • "This toolkit for cover-ups would mark the end of a fair trial tradition admired worldwide for centuries" – Shami Chakrabari, Liberty.