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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Martin Sorrell: I support a second EU referendum

If the economy is not in great shape after two years, public opinion on Brexit could yet shift, says the WPP head.

On Labour’s weakness, if you take the market economy analogy, if you don’t have vigorous competitors you have a monopoly. That’s not good for prices and certainly not for competition. It breeds inefficiency, apathy, complacency, even arrogance. That applies to politics too.

A new party? Maybe, but Tom Friedman has a view that parties have outlived their purpose and with the changes that have taken place through globalisation, and will do through automation, what’s necessary is for parties not to realign but for new organisations and new structures to be developed.

Britain leaving the EU with no deal is a strong possibility. A lot of observers believe that will be the case, that it’s too complex a thing to work out within two years. To extend it beyond two years you need 27 states to approve.

The other thing one has to bear in mind is what’s going to happen to the EU over the next two years. There’s the French event to come, the German event and the possibility of an Italian event: an election or a referendum. If Le Pen was to win or if Merkel couldn’t form a government or if the Renzi and Berlusconi coalition lost out to Cinque Stelle, it might be a very different story. I think the EU could absorb a Portuguese exit or a Greek exit, or maybe even both of them exiting, I don’t think either the euro or the EU could withstand an Italian exit, which if Cinque Stelle was in control you might well see.

Whatever you think the long-term result would be, and I think the UK would grow faster inside than outside, even if Britain were to be faster outside, to get to that point is going to take a long time. The odds are there will be a period of disruption over the next two years and beyond. If we have a hard exit, which I think is the most likely outcome, it could be quite unpleasant in the short to medium term.

Personally, I do support a second referendum. Richard Branson says so, Tony Blair says so. I think the odds are diminishing all the time and with the triggering of Article 50 it will take another lurch down. But if things don’t get well over the two years, if the economy is not in great shape, maybe there will be a Brexit check at the end.

Martin Sorrell is the chairman and chief executive of WPP.

As told to George Eaton.

This article first appeared in the 30 March 2017 issue of the New Statesman, Wanted: an opposition