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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PMQs review: Theresa May shows how her confidence has grown

After her Brexit speech, the PM declared of Jeremy Corbyn: "I've got a plan - he doesn't have a clue". 

The woman derided as “Theresa Maybe” believes she has neutralised that charge. Following her Brexit speech, Theresa May cut a far more confident figure at today's PMQs. Jeremy Corbyn inevitably devoted all six of his questions to Europe but failed to land a definitive blow.

He began by denouncing May for “sidelining parliament” at the very moment the UK was supposedly reclaiming sovereignty (though he yesterday praised her for guaranteeing MPs would get a vote). “It’s not so much the Iron Lady as the irony lady,” he quipped. But May, who has sometimes faltered against Corbyn, had a ready retort. The Labour leader, she noted, had denounced the government for planning to leave the single market while simultaneously seeking “access” to it. Yet “access”, she went on, was precisely what Corbyn had demanded (seemingly having confused it with full membership). "I've got a plan - he doesn't have a clue,” she declared.

When Corbyn recalled May’s economic warnings during the referendum (“Does she now disagree with herself?”), the PM was able to reply: “I said if we voted to leave the EU the sky would not fall in and look at what has happened to our economic situation since we voted to leave the EU”.

Corbyn’s subsequent question on whether May would pay for single market access was less wounding than it might have been because she has consistently refused to rule out budget contributions (though yesterday emphasised that the days of “vast” payments were over).

When the Labour leader ended by rightly hailing the contribution immigrants made to public services (“The real pressure on public services comes from a government that slashed billions”), May took full opportunity of the chance to have the last word, launching a full-frontal attack on his leadership and a defence of hers. “There is indeed a difference - when I look at the issue of Brexit or any other issues like the NHS or social care, I consider the issue, I set out my plan and I stick to it. It's called leadership, he should try it some time.”

For May, life will soon get harder. Once Article 50 is triggered, it is the EU 27, not the UK, that will take back control (the withdrawal agreement must be approved by at least 72 per cent of member states). With MPs now guaranteed a vote on the final outcome, parliament will also reassert itself. But for now, May can reflect with satisfaction on her strengthened position.

George Eaton is political editor of the New Statesman.