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

Picture: ANDRÉ CARRILHO
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Leader: Boris Johnson, a liar and a charlatan

The Foreign Secretary demeans a great office of state with his carelessness and posturing. 

Boris Johnson is a liar, a charlatan and a narcissist. In 1988, when he was a reporter at the Times, he fabricated a quotation from his godfather, an eminent historian, which duly appeared in a news story on the front page. He was sacked. (We might pause here to acknowledge the advantage to a young journalist of having a godfather whose opinions were deemed worthy of appearing in a national newspaper.) Three decades later, his character has not improved.

On 17 September, Mr Johnson wrote a lengthy, hyperbolic article for the Daily Telegraph laying out his “vision” for Brexit – in terms calculated to provoke and undermine the Prime Minister (who was scheduled to give a speech on Brexit in Florence, Italy, as we went to press). Extracts of his “article”, which reads more like a speech, appeared while a terror suspect was on the loose and the country’s threat level was at “critical”, leading the Scottish Conservative leader, Ruth Davidson, to remark: “On the day of a terror attack where Britons were maimed, just hours after the threat level is raised, our only thoughts should be on service.”

Three other facets of this story are noteworthy. First, the article was published alongside other pieces echoing and praising its conclusions, indicating that the Telegraph is now operating as a subsidiary of the Johnson for PM campaign. Second, Theresa May did not respond by immediately sacking her disloyal Foreign Secretary – a measure of how much the botched election campaign has weakened her authority. Finally, it is remarkable that Mr Johnson’s article repeated the most egregious – and most effective – lie of the EU referendum campaign. “Once we have settled our accounts, we will take back control of roughly £350m per week,” the Foreign Secretary claimed. “It would be a fine thing, as many of us have pointed out, if a lot of that money went on the NHS.”

This was the promise of Brexit laid out by the official Vote Leave team: we send £350m to Brussels, and after leaving the EU, that money can be spent on public services. Yet the £350m figure includes the rebate secured by Margaret Thatcher – so just under a third of the sum never leaves the country. Also, any plausible deal will involve paying significant amounts to the EU budget in return for continued participation in science and security agreements. To continue to invoke this figure is shameless. That is not a partisan sentiment: the head of the UK Statistics Authority, Sir David Norgrove, denounced Mr Johnson’s “clear misuse of official statistics”.

In the days that followed, the chief strategist of Vote Leave, Dominic Cummings – who, as Simon Heffer writes in this week's New Statesman, is widely suspected of involvement in Mr Johnson’s article – added his voice. Brexit was a “shambles” so far, he claimed, because of the ineptitude of the civil service and the government’s decision to invoke Article 50 before outlining its own detailed demands.

There is a fine Yiddish word to describe this – chutzpah. Mr Johnson, like all the other senior members of Vote Leave in parliament, voted to trigger Article 50 in March. If he and his allies had concerns about this process, the time to speak up was then.

It has been clear for some time that Mr Johnson has no ideological attachment to Brexit. (During the referendum campaign, he wrote articles arguing both the Leave and Remain case, before deciding which one to publish – in the Telegraph, naturally.) However, every day brings fresh evidence that he and his allies are not interested in the tough, detailed negotiations required for such an epic undertaking. They will brush aside any concerns about our readiness for such a huge challenge by insisting that Brexit would be a success if only they were in charge of it.

This is unlikely. Constant reports emerge of how lightly Mr Johnson treats his current role. At a summit aiming to tackle the grotesque humanitarian crisis in Yemen, he is said to have astounded diplomats by joking: “With friends like these, who needs Yemenis?” The Foreign Secretary demeans a great office of state with his carelessness and posturing. By extension, he demeans our politics. 

This article first appeared in the 21 September 2017 issue of the New Statesman, The revenge of the left