Secret "justice" is nothing of the sort

Plans for secret courts in Britain would keep abuses secret too.

Judges often look at a person’s intention to understand the true meaning of their actions. A similar approach is needed with the controversial Security and Justice bill, which the House of Lords will begin reviewing on Tuesday (June 19).

The widely criticized bill would widen the use of secret hearings in the civil courts whenever national security grounds are invoked, excluding the person affected and his or her lawyer from the courtroom, thereby undermining a basic principle of justice: the ability to know the case against you. The bill would also prevent disclosure of material showing UK involvement in wrongdoing by other countries.

Notable opponents of the plans include most of the lawyers who act in secret hearings (known as “special advocates”) who are well placed to understand how such hearings undermine fairness. They are barred under current rules from consulting with the person on whose behalf they are supposed to be acting, or that person’s lawyers, about the secret part of the case.

Earlier proposals from the government to permit inquests into suspicious deaths to be held in secret and to allow secret hearings on even broader “public interest” grounds have thankfully been dropped, although opinion is divided on whether their original inclusion was merely a negotiating tactic.

The government’s intentions can be traced back to July 2010, when the Prime Minister first announced the proposals, 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 decision to hold an inquiry made all the headlines, and was welcomed at the time by Human Rights Watch and other NGOs. But when the terms of reference for the inquiry were made public in July 2011 it became clear that the government was not prepared to give the inquiry the independence and authority it needed to get to the truth, leading to a boycott by NGOs and lawyers. In January 2012 it was scrapped, with a commitment to hold a fresh inquiry at a later date.

The secret justice plans drew less attention at the time. The Prime Minister told Parliament that they were needed because the security services being “paralysed 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.

But set in the context of the government’s efforts to limit its own inquiry and having seen the detail of its plans, it is evident that the government’s intention with the Justice and Security bill is to ensure that if abuses are repeated in future they will never see the light of day in British courts.

Recall how the previous Labour government fought tooth-and-nail for the British courts to prevent the publication of seven paragraphs of a court judgement in a civil case brought against the Foreign Secretary by former Guantanamo detainee Binyam Mohammed.

As his lawyers have made clear, the material that the UK sought to block had already been made public in the US courts. When it was published, the real reason for the strength of the government’s objections became clear – the paragraphs showed that the UK knew early on that Binyam Mohammed was being tortured, a deeply embarrassing revelation.

The bill does contain one welcome element. The MPs and Lords who sit on the body that oversees the security services will now be appointed by parliament rather than the Prime Minister as now.

But the Intelligence and Security Committee (ISC) will otherwise remain toothless, with the Prime Minister able to veto investigations or block publication of material on broad grounds, and without the committee having the power to compel witnesses and evidence as the US Senate Intelligence Committee has. The Lords should use the bill as an opportunity to strengthen the oversight powers of the ISC.

Evidence continues to mount that the UK government was complicity in torture and rendition overseas. Last September, Human Rights Watch found evidence in Tripoli linking the British security services to the rendition of two Libyan men and a woman into the hands of the Gadaffi regime and the likely torture of the two men. Those cases are now rightly the subject of ongoing criminal investigations in the UK (the stated reason for halting the Gibson Inquiry).

The Libya cases are also the subject of civil suits against former UK government officials and the UK government itself. Those cases are an important measure of accountability and bulwark against future abuse. Yet if the government gets its way with this bill, such cases will be held behind closed doors, the victims and their lawyers, journalist and the public excluded. That is no justice at all.

Former Guantanamo detainee Binyam Mohammed speaks. With these plans, his story would be depressingly commonplace. Photograph: Getty Images

 

Benjamin Ward is deputy director in Human Rights Watch’s Europe and Central Asia division

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As a Conservative MP, I want Parliament to get a proper debate on Brexit

The government should consider a Green Paper before Article 50. 

I am very pleased that the government has listened to the weight of opinion across the House of Commons – and the country – by agreeing to put its plan for Brexit before Parliament and the country for scrutiny before Article 50 is triggered. Such responsiveness will stand the government in good stead. A confrontation with Parliament, especially given the paeans to parliamentary sovereignty we heard from Leave campaigners during the referendum, would have done neither the Brexit process nor British democracy any good.

I support the government’s amendment to Labour’s motion, which commits the House to respecting the will of the British people expressed in the referendum campaign. I accept that result, and now I and other Conservatives who campaigned to Remain are focused on getting the best deal for Britain; a deal which respects the result of the referendum, while keeping Britain close to Europe and within the single market.

The government needs to bring a substantive plan before Parliament, which allows for a proper public and parliamentary debate. For this to happen, the plan provided must be detailed enough for MPs to have a view on its contents, and it must arrive in the House far enough in advance of Article 50 for us to have a proper debate. As five pro-European groups said yesterday, a Green Paper two months before Article 50 is invoked would be a sensible way of doing it. Or, in the words of David Davis just a few days before he was appointed to the Cabinet, a “pre-negotiation white paper” could be used to similar effect.

Clearly there are divisions, both between parties and between Leavers and Remainers, on what the Brexit deal should look like. But I, like other members of the Open Britain campaign and other pro-European Conservatives, have a number of priorities which I believe the government must prioritise in its negotiations.

On the economy, it is vital that the government strives to keep our country fully participating in the single market. Millions of jobs depend on the unfettered trade, free of both tariff and non-tariff barriers, we enjoy with the world’s biggest market. This is absolutely compatible with the result, as senior Leave campaigners such as Daniel Hannan assured voters before the referendum that Brexit would not threaten Britain’s place in the single market. The government must also undertake serious analysis on the consequences of leaving the customs union, and the worrying possibility that the UK could fall out of our participation in the EU’s Free Trade Agreements (FTAs) with non-EU countries like South Korea.

If agreeing a new trading relationship with Europe in just two years appears unachievable, the government must look closely into the possibility of agreeing a transitional arrangement first. Michel Barnier, the European Commission’s chief negotiator, has said this would be possible and the Prime Minister was positive about this idea at the recent CBI Conference. A suitable transitional arrangement would prevent the biggest threat to British business – that of a "cliff edge" that would slap costly tariffs and customs checks on British exports the day after we leave.

Our future close relationship with the EU of course goes beyond economics. We need unprecedentedly close co-operation between the UK and the EU on security and intelligence sharing; openness to talented people from Europe and the world; and continued cooperation on issues like the environment. This must all go hand-in-hand with delivering reforms to immigration that will make the system fairer, many of which can be seen in European countries as diverse as the Netherlands and Switzerland.

This is what I and others will be arguing for in the House of Commons, from now until the day Britain leaves the European Union. A Brexit deal that delivers the result of the referendum while keeping our country prosperous, secure, open and tolerant. I congratulate the government on their decision to involve the House in their plan for Brexit - and look forward to seeing the details. 

Neil Carmichael is the Conservative MP for Stroud and supporter of the Open Britain campaign.