Liberty warns against “secret justice” in civil cases against the Government

19 October 2011

Today Liberty warned against extending the principle of “secret justice” into ordinary civil cases against the Government. A new Green Paper on secret evidence proposes that ministers should be able to initiate closed proceedings in civil cases where the Government claims disclosure would compromise national security, put sources at risk or undermine so-called key partnerships.

The proposal follows the Supreme Court ruling in Al Rawi and others v the Security Services in July where the Court refused to adopt a “closed material procedure”. In that case the Government tried to argue that the Common Law could enable the intelligence services to use secret evidence to defend claims of their complicity in torture. The Supreme Court rejected outright that attempt to instigate closed proceedings via the backdoor – but now the Government is effectively trying to amend the law and legislate for what it failed to achieve last time.

The Green Paper’s proposals would allow a Government to defend accusations of complicity in torture without revealing information which may be crucial to a fair hearing for the victim and to the public interest in media scrutiny of alleged abuses of power.

Isabella Sankey, Director of Policy for Liberty, said:

“The security services seem to think that having to compensate former Guantanamo detainees for failing in their duty to them justifies closing down open civil courts into the future.

“These payouts should encourage the avoidance of complicity in torture not blatant attempts to halt centuries of British justice.

“Further inroads like this will make it even easier for the system to be abused – to prevent embarrassment not protect national security.”

Liberty argues there are already several mechanisms allowing for the protection of national security – including claims for Public Interest Immunity which can ensure any material truly compromising national security does not enter the public domain. Crucially where PII applies, neither party to a case can rely on the withheld evidence.

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1. In Al Rawi and others v the Security Services, Binyam Mohamed and other former Guantanamo Bay detainees had sued the UK Government alleging involvement in their unlawful detention and mistreatment. The Government asked the Court to adopt a secret procedure under which claimants and their lawyers would be excluded from the hearing and from seeing the judgment in their case. Although the Government settled the claims in November 2010, they pursued the argument about secrecy to the Supreme Court in an attempt to overturn an earlier Court of Appeal ruling which had rejected their arguments. The Supreme Court rejected the Government’s attempt. Lord Dyson, giving the lead judgment, said the introduction of closed proceedings in ordinary civil claims would involve an “inroad into a fundamental common law right”. “The [Public Interest Immunity] process is not perfect, but it works well enough,” he continued. “In some cases it is cumbersome and costly to operate, but a closed material procedure would be no less so. Lord Kerr, in a concurring judgment, said: “This would not be a development of the common law, as the [Government] would have it. It would be, at a stroke, the deliberate forfeiture of a fundamental right which … has been established for more than three centuries”.