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15 October 2012

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.

By Alice Wuss

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. 

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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.