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

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Labour tensions boil over at fractious MPs' meeting

Corbyn supporters and critics clash over fiscal charter U-turn and new group Momentum. 

"A total fucking shambles". That was the verdict of the usually emollient Ben Bradshaw as he left tonight's Parliamentary Labour Party meeting. His words were echoed by MPs from all wings of the party. "I've never seen anything like it," one shadow minister told me. In commitee room 14 of the House of Commons, tensions within the party - over the U-turn on George Osborne's fiscal charter and new Corbynite group Momentum - erupted. 

After a short speech by Jeremy Corbyn, shadow chancellor John McDonnell sought to explain his decision to oppose Osborne's fiscal charter (having supported it just two weeks ago). He cited the change in global economic conditions and the refusal to allow Labour to table an amendment. McDonnell also vowed to assist colleagues in Scotland in challenging the SNP anti-austerity claims. But MPs were left unimpressed. "I don't think I've ever heard a weaker round of applause at the PLP than the one John McDonnell just got," one told me. MPs believe that McDonnell's U-turn was due to his failure to realise that the fiscal charter mandated an absolute budget surplus (leaving no room to borrow to invest), rather than merely a current budget surplus. "A huge joke" was how a furious John Mann described it. He and others were outraged by the lack of consultation over the move. "At 1:45pm he [McDonnell] said he was considering our position and would consult with the PLP and the shadow cabinet," one MP told me. "Then he announces it before 6pm PLP and tomorow's shadow cabinet." 

When former shadow cabinet minister Mary Creagh asked Corbyn about the new group Momentum, which some fear could be used as a vehicle to deselect critical MPs (receiving what was described as a weak response), Richard Burgon, one of the body's directors, offered a lengthy defence and was, one MP said, "just humiliated". He added: "It looked at one point like they weren't even going to let him finish. As the fractious exchanges were overheard by journalists outside, Emily Thornberry appealed to colleagues to stop texting hacks and keep their voices down (within earshot of all). 

After a calmer conference than most expected, tonight's meeting was evidence of how great the tensions within Labour remain. Veteran MPs described it as the worst PLP gathering for 30 years. The fear for all MPs is that they have the potential to get even worse. 

George Eaton is political editor of the New Statesman.