There is no need to reach for Ken Clarke’s Kafka option in the Justice and Security Bill

The dark reality of the UK’s secret justice system is a case of truth being not so very different to the strangest, most disturbing fiction.

When the bewildered bank official Joseph K. is sucked into the mire of accusations and interrogations in Kafka’s The Trial, he learns to his growing dismay that the court process is a hall of mirrors. “For the proceedings”, wrote Kafka, “were not only kept secret from the general public, but from the accused as well.” Indeed, “the actual charge sheets … were inaccessible to the accused and his counsel, consequently one did not know in general, or at least did not know with any precision, what charges to meet in the first place”.

Perhaps government lawyers are students of dark modernist literature, because the current Justice and Security bill seems to be inspired as much by Kafka’s disturbing masterpiece as by the demands of legal justice. 

The bill is set to introduce new rules for civil cases where material gives rise to national security concerns. The new rules will allow the government to seek to place such material into “closed” (ie secret) sessions of the court. If, for example, somebody took a civil suit against the Foreign Secretary for their alleged role in that person’s detention and torture in a foreign country (be it Egypt, Pakistan or Guantánamo Bay), the government could have “sensitive” documents – like MI5 records or information from another country’s intelligence agencies – put into a closed session. 

What will this mean? Well, it will mean a fundamental departure from the usual requirements of fairness and open justice. The person bringing the case could be cut off from precisely the information that they need to prove their position and establish the full truth. Neither they nor their lawyer will be permitted to see the closed material. It is closed off. Instead, a “special advocate”, appointed to represent their interests, will be allowed to see the materials but not to disclose or discuss them with the person they theoretically represent. 

Ken Clarke, the minister responsible for the bill, says it will enable more justice, not less. He insists that parties to civil actions against the government would at least get their cases heard, rather than matters being settled out of court because the government couldn’t allow national secrets to be revealed in a public courtroom. This argument neglects the flexibility of existing mechanisms - redactions, “confidentiality rings” (enforceable confidentiality agreements), evidence given in anonymised form etc - that can be used to protect material giving rise to legitimate national security concerns. There is plenty of leeway between having no hearing or a closed hearing - there’s no need to reach for Ken Clarke’s Kafka option. 

It should be noted that the bill also goes much further than the government’s own arguments, as it lacks even minimal safeguards to ensure that the secret procedures would only ever be invoked as a matter of last resort when a case would otherwise be struck out. 

Meanwhile, Mr Clarke assures us that there will be “no mission creep” – there will be “no extension of secrecy into other areas or types of evidence”. This is an extraordinary claim because this is exactly what has already been happening. There are now 21 different situations in which secret evidence can be relied upon by government lawyers, including national security deportation cases and the imposition of highly restrictive Terrorist Prevention and Investigation Measures (the successor to “control orders”). 

In fact, in the last decade our legal system has seen an unprecedented expansion of secret justice measures. Taken in total, they amount to a radical departure from long-established tenets of legal fairness. Earlier this year one man who has been subject to ten years of detention or of highly restrictive conditions based in large part on secret evidence he has never seen, told me:

There are no words to describe it, it's a nightmare, it’s darkness. In prison we were with people who had been charged, tried, sentenced, who had release dates, but for us you have no hope, no goal, no trial, no light and no evidence … In all angles you feel humiliated. And you can’t defend yourself and make this stop. 

The dark reality of the UK’s secret justice system is a case of truth being not so very different to the strangest, most disturbing fiction.   

Justice is blind. And you may as well be too... Photograph: Getty Images

Alice Wyss is a UK researcher for Amnesty International

Photo: Getty
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The Prevent strategy needs a rethink, not a rebrand

A bad policy by any other name is still a bad policy.

Yesterday the Home Affairs Select Committee published its report on radicalization in the UK. While the focus of the coverage has been on its claim that social media companies like Facebook, Twitter and YouTube are “consciously failing” to combat the promotion of terrorism and extremism, it also reported on Prevent. The report rightly engages with criticism of Prevent, acknowledging how it has affected the Muslim community and calling for it to become more transparent:

“The concerns about Prevent amongst the communities most affected by it must be addressed. Otherwise it will continue to be viewed with suspicion by many, and by some as “toxic”… The government must be more transparent about what it is doing on the Prevent strategy, including by publicising its engagement activities, and providing updates on outcomes, through an easily accessible online portal.”

While this acknowledgement is good news, it is hard to see how real change will occur. As I have written previously, as Prevent has become more entrenched in British society, it has also become more secretive. For example, in August 2013, I lodged FOI requests to designated Prevent priority areas, asking for the most up-to-date Prevent funding information, including what projects received funding and details of any project engaging specifically with far-right extremism. I lodged almost identical requests between 2008 and 2009, all of which were successful. All but one of the 2013 requests were denied.

This denial is significant. Before the 2011 review, the Prevent strategy distributed money to help local authorities fight violent extremism and in doing so identified priority areas based solely on demographics. Any local authority with a Muslim population of at least five per cent was automatically given Prevent funding. The 2011 review pledged to end this. It further promised to expand Prevent to include far-right extremism and stop its use in community cohesion projects. Through these FOI requests I was trying to find out whether or not the 2011 pledges had been met. But with the blanket denial of information, I was left in the dark.

It is telling that the report’s concerns with Prevent are not new and have in fact been highlighted in several reports by the same Home Affairs Select Committee, as well as numerous reports by NGOs. But nothing has changed. In fact, the only change proposed by the report is to give Prevent a new name: Engage. But the problem was never the name. Prevent relies on the premise that terrorism and extremism are inherently connected with Islam, and until this is changed, it will continue to be at best counter-productive, and at worst, deeply discriminatory.

In his evidence to the committee, David Anderson, the independent ombudsman of terrorism legislation, has called for an independent review of the Prevent strategy. This would be a start. However, more is required. What is needed is a radical new approach to counter-terrorism and counter-extremism, one that targets all forms of extremism and that does not stigmatise or stereotype those affected.

Such an approach has been pioneered in the Danish town of Aarhus. Faced with increased numbers of youngsters leaving Aarhus for Syria, police officers made it clear that those who had travelled to Syria were welcome to come home, where they would receive help with going back to school, finding a place to live and whatever else was necessary for them to find their way back to Danish society.  Known as the ‘Aarhus model’, this approach focuses on inclusion, mentorship and non-criminalisation. It is the opposite of Prevent, which has from its very start framed British Muslims as a particularly deviant suspect community.

We need to change the narrative of counter-terrorism in the UK, but a narrative is not changed by a new title. Just as a rose by any other name would smell as sweet, a bad policy by any other name is still a bad policy. While the Home Affairs Select Committee concern about Prevent is welcomed, real action is needed. This will involve actually engaging with the Muslim community, listening to their concerns and not dismissing them as misunderstandings. It will require serious investigation of the damages caused by new Prevent statutory duty, something which the report does acknowledge as a concern.  Finally, real action on Prevent in particular, but extremism in general, will require developing a wide-ranging counter-extremism strategy that directly engages with far-right extremism. This has been notably absent from today’s report, even though far-right extremism is on the rise. After all, far-right extremists make up half of all counter-radicalization referrals in Yorkshire, and 30 per cent of the caseload in the east Midlands.

It will also require changing the way we think about those who are radicalized. The Aarhus model proves that such a change is possible. Radicalization is indeed a real problem, one imagines it will be even more so considering the country’s flagship counter-radicalization strategy remains problematic and ineffective. In the end, Prevent may be renamed a thousand times, but unless real effort is put in actually changing the strategy, it will remain toxic. 

Dr Maria Norris works at London School of Economics and Political Science. She tweets as @MariaWNorris.