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

Photo: Getty
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The Tories play Game of Thrones while the White Walkers from Brussels advance

The whole premise of the show is a pretty good metaphor for the current state of British politics.

If you’re a fan of asking “who’s that, then?” and “is that the one who killed the other one’s brother?”, I bring great news. Game of Thrones is back for a seventh series. Its vast assortment of characters was hard enough to keep track of before half of them got makeovers. But now the new Queen Cersei has reacted to the arrival of the long winter by investing heavily in the kind of leather ball gowns sold by goth shops in Camden, and Euron Greyjoy, once a fairly bland sailor, has come back as a Halloween costume version of Pacey from Dawson’s Creek, all eyeliner and epaulettes.

The show’s reliance on British character actors is the only thing keeping me vaguely on top of the cast list: what’s Diana Rigg up to these days in Highgarden? And what about that guy who was in Downton Abbey that time, who now has the scaly arms? (Luckily, the next thing I watched after the Game of Thrones series premiere was the first two episodes of the revived Twin Peaks, which put my confusion into perspective. There, Agent Cooper spent most of his time talking to a pulsating bladder attached to one of those fake trees you get from Ikea when your landlord won’t let you have real plants.)

The day-to-day business of Game of Thrones has always been power – answering the question of who will sit on the Iron Throne, forged by Aegon the Conqueror from the swords of his defeated enemies. But its backdrop is a far bigger threat: the arrival of a winter that will last many years, and the invasion of an army of the undead.

That might seem like an unkind way to think about Michel Barnier and his fellow Brexit negotiators – inexorably marching towards us, briefing papers in hand, while Liam Fox frantically rings a bell at the entrance to the Channel Tunnel – but nonetheless, the whole premise of Game of Thrones is a pretty good metaphor for the current state of British politics.

The current internal Conservative struggle for power might be vicious but it is at least familiar to its contestants; they know which weapons to deploy, which alliances are vital, who owes them a favour. Meanwhile, the true challenge facing every one of them is too frightening to contemplate.

In 2013, this magazine celebrated the early success of the show with a cover depicting one of our terrifying painted mash-ups: “The Tory Game of Thrones.” Our casting has been strangely vindicated. George Osborne was our Jaime Lannister – once the kind of uncomplicated bastard who would push a child out of a window but now largely the purveyor of waspish remarks about other, worse characters. Our Cersei was Theresa May, who spent the early seasons of The Cameron Era in a highly visible but underwritten role. Now, she has just seized power, only to discover herself beset by enemies on all sides. (Plus, Jeremy Corbyn as the High Sparrow would quite like her to walk penitently through the streets while onlookers cry “shame!”)

Michael Gove was our Tyrion Lannister, the kind of man who would shoot his own father while the guy was on the loo (or run a rival’s leadership campaign only to detonate it at the last minute). Jeremy Hunt was Jon Snow, slain by the brotherhood of the Night Shift at A&E, only in this case still waiting for resurrection.

The comparison falls down a bit at Boris Johnson as Daenerys Targaryen, as the former London mayor has not, to my knowledge, ever married a horse lord or hired an army of eunuchs, but it feels like the kind of thing he might do.

We didn’t have David Davis on there – hated by the old king, David Camareon, he was at the time banished to the back benches. Let’s retrospectively appoint him Euron Greyjoy, making a suspiciously seductive offer to Queen Cersei. (Philip Hammond is Gendry, in that most of the country can’t remember who he is but feel he might turn out to be important later.)

That lengthy list shows how Conservative infighting suffers from the same problem that the Game of Thrones screenwriters wrestle with: there are so many characters, and moving the pieces round the board takes up so much time and energy, that we’re in danger of forgetting why it matters who wins. In the books, there is more space to expound on the politics. George R R Martin once said that he came away from The Lord of The Rings asking: “What was Aragorn’s tax policy?” (The author added: “And what about all these orcs? By the end of the war, Sauron is gone but all of the orcs aren’t gone – they’re in the mountains. Did Aragorn pursue a policy of systematic genocide and kill them? Even the little baby orcs, in their little orc cradles?”)

Martin’s fantasy vision also feels relevant to the Tories because its power struggles aren’t about an “endless series of dark lords and their evil minions who are all very ugly and wear black clothes”. Instead, everyone is flawed. In Westeros, as in the Conservative Party, it can be difficult to decide who you want to triumph. Sure, Daenerys might seem enlightened, but she watched her brother have molten gold poured down his throat; plucky Arya Stark might tip over from adorable assassin into full-blown psychopath. Similarly, it’s hard to get worked up about the accusation that Philip Hammond said that driving a train was so easy “even a woman” could do it, when David Davis marked his last leadership campaign by posing alongside women in tight T-shirts reading “It’s DD for me”.

The only big difference from the show is that in real life I have sympathy for Barnier and the White Walkers of Brussels. Still, maybe it will turn out that the undead of Game of Thrones are tired of the Seven Kingdoms throwing their weight around and are only marching south to demand money before negotiating a trade deal? That’s the kind of plot twist we’re all waiting for.

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.

This article first appeared in the 20 July 2017 issue of the New Statesman, The new world disorder