By Aisha Maniar

November 2, 2011

The government is attempting to further shield itself from those seeking to obtain secret intelligence. Proposals contained in a new consultation green paper threaten to compromise the British system of open justice and the right to a fair trial.

A decade ago, the UK created a legal regime based on the use of secret evidence: it was dubbed ‘Britain’s Own Guantanamo'. Last month, the government sought to further undermine Britain’s system of open justice. On 19 October, it published a consultation green paper on justice and security, in response to the growing number of court cases brought against it seeking the disclosure of sensitive intelligence information. Some of these cases involve former Guantánamo prisoners, including the disclosure and compensation case that ended in a secret out-of-court settlement almost one year ago.

The proposals concerning procedural fairness - how the courts should deal with sensitive information and what can be disclosed and how – could, in particular, threaten the very fabric of the British open system of justice and the right to a fair trial. They come almost ten years after legislation was railroaded through parliament to roll out some of the proposed measures, first introduced in the 1997 Special Immigration Appeals Commission (SIAC) Act, such as closed hearings and the use of “special advocates”. This triggered the creation of a legal regime, based on the use of secret evidence, which has often been described as “Kafkaesque”.

Two months after the 9/11 attacks, the Anti-Terrorism, Crime and Security Act (ATCSA) 2001 was passed, bringing these measures to the fore; by the end of the year, eight foreign nationals were detained without charge or trial at HMP Belmarsh.. Although the relevant part of the Anti-Terrorism Act was thrown out following a damning ruling by the House of Lord in 2004, the various developments that followed it have meant that many of the individuals detained under this and consequent laws, have been subject to indefinite detention of some form or other without any means of challenging the evidence or knowing the allegations against them.

The Justice Secretary’s assessment of how successful these measures have been in the green paper is subjective. Nonetheless, yet more secrecy is proposed by “introducing legislation to make closed material procedures (CMPs) more widely available in [all] civil proceedings”. The argument is that this would protect national security or the national interest – but closed proceedings are in fact often used to protect the interests of individuals and groups who stand to gain from evidence being withheld. Hiding behind vulnerable minorities, these measures may well protect other minorities, such as those in the intelligence services who have not been playing by the rules. Had evidence of Britain’s close intelligence-sharing relationship with the former Libyan regime and direct collusion in extraordinary rendition to that country not been discovered by Human Rights Watch (HRW) during a recent visit, it is possible that securing the non-disclosure of such information would have been subject to a hotly-contested court battle, as in the cases brought by former Guantánamo prisoners.

While these and other measures provide a means of sweeping incriminating evidence of domestic and international foul play by the government under the carpet, they also undo the centuries-old tradition of open justice and the right to a fair trial and habeas corpus enshrined in law since the Magna Carta in the 13th century.

Closed courts defy the purpose of legal action and allow conspiracy theories to flourish, instead of providing answers to serious questions. These measures will discourage legitimate claims being brought and will prevent any useful disclosure to the public, except in instances such as those made by HRW over Libya. Contrary to what the government appears to anticipate, many of the measures in the green paper appear to undermine the “human rights, justice and fairness” that this government claims to respect. Closed evidence, which has been creeping into the judicial system over the past decade, runs contrary to democratic values and the established, healthy tradition of open and fair trials. 

Consultation on the green paper ends on Friday 6 January 2012.