Secret Courts plans under fire again

14 November 2012
Isabella Sankey, Director of Policy

From Monday peers will again examine the odious Justice and Security Bill as it reaches Report Stage in the House of Lords. Encouragingly the Bill, which would introduce the controversial system of Closed Material Procedures (CMP) and Special Advocates into the wider civil law, is progressing under an increasingly dark cloud. This week the influential Joint Committee on Human Rights (JCHR) insisted that the Government has made no case for the extension of CMP. Now plans for secret courts have also come under fire at an all-party parliamentary meeting arranged by Amnesty, Human Rights Watch, Justice, Liberty and Reprieve on Monday night.

Lord Beecham, Opposition justice spokesperson, was up first. He labelled the Bill a “radical departure from our justice system”; reiterating that Labour remains unconvinced by the plans. He pointed out that it was possible to hold the 7/7 inquests without disclosing anything secret – proving that the current system of Public Interest Immunity (PII) can adequately deal with such sensitive cases.

Conservative peer and JCHR member Baroness Berridge spoke next; warning of the kind of judgments the proposals might produce. She revealed that she attended a CMP case at the High Court, and that it “did not feel like a trial”. And Leigh Day & Co partner Sapna Malik described the impact the Bill would have had on cases such as Belhadj, Al Saadi and even Baha Mousa, in which evidence of British involvement in rendition and mistreatment emerged.

Special Advocates Angus McCullough QC and Martin Chamberlain forensically dismantled the Government’s arguments for this radical reform. As expert lawyers with unparalleled insight into the operation of closed procedures, they highlighted five key problems with proposals for secret courts. Firstly, CMP are inherently unfair and cannot guarantee just outcomes; secondly, the current system for dealing with security sensitive information works well; thirdly, the introduction of closed procedures will damage the integrity of our justice system and the reputation of British justice on the world stage; fourthly, the Government case for the Bill is illogical given that it can apply to strike out cases that are supposedly “saturated” in sensitive material and, finally, the Government has not in any way demonstrated that such a radical departure from fundamental principles of British justice is required.

Finally, Lord Strasburger spoke vociferously against the scheme. He warned that peers and MPs are in danger of “sleepwalking” into fundamental changes to our civil justice system. “This Bill is beyond amendment,” he declared. “It is too wrong to fix; too wrong to put right.” Lord Strasburger said the Bill would lead to miscarriages of justice and cover-up; calling it the “thin end of a very nasty wedge”. “This is about nothing less than saving our civil justice system,” he added, in a rallying call ahead of next week. “I understand that there will be a cross-party amendment to delete CMP and I think we have a good chance of success.”

Let’s hope that Lord Strasburger is correct and that his fellow peers will heed his words of warning – and those of the JCHR – and defeat these dangerous and unnecessary proposals.