Justice and security bill will still create veil of secrecy despite government’s concessions, say civil rights groups
Civil rights groups have condemned the justice and security bill, despite a series of government concessions over secret courts.
Groups including Liberty, Amnesty and Reprieve warned that the bill is “worse than first imagined” and fear it throws a “cloak of secrecy on wrongdoing” such as rendition, torture and illegal detention.
Changes in parliamentary oversight of the security and intelligence services, also set out in the bill, mark a retreat from earlier proposed reforms, setting up a potential battle between parliament and the executive over membership of the intelligence and security committee (ISC).
Under the bill, the prime minister retains the power of veto over the choice of committee members, and ministers will be able to block the release of information deemed “sensitive” to the ISC.
The first clause of the bill says that committee members must be “nominated … by the prime minister”. In explanatory notes, however, the justice ministry states that members “will be selected by the house of parliament”. The chair will be elected by ISC members.
MPs from all parties have widely criticised the ISC in the past, saying it has insufficient powers. “The ISC chairman must be accountable to parliament and must be seen to be accountable to parliament,” said Andrew Tyrie, Conservative MP for Chichester and chair of the all-party group on extraordinary rendition.
The legislation falls far short of measures recommended three years ago by the Commons reform committee in its report, Rebuilding the House.
Pressed on ministers by the security and intelligence agencies following disclosures of MI5 and MI6 involvement in the abuse of detainees, the bill states that a judge must agree to a secretary of state’s demand for secret hearings if the disclosure of information “would be damaging to the interests of national security”.
Significantly, it does not allow a judge to decide to disclose parts of documents, with parts redacted, as has been done in the past through public interest immunity (PII) procedures.
For example, in a lawsuit about complicity in torture, an embarrassing document names a former secretary of state and some spies still working in the field. Only the disclosure of the names of the spies damaged national security. Everything else merely exposed wrongdoing – the whole point of the case.
Shami Chakrabarti, director of the human rights group Liberty, said on Tuesday: “Some in government have been furiously briefing of the grand concession of requiring a minister to consider making targeted PII applications, rather than applying for a case to go into closed proceedings.
“But the decision to ‘consider and reject’ PII is unenforceable and once the government applies for closed proceedings, the bill orders the judge to ‘ignore’ the more proportionate remedy for national security.” Liberty added: “The plans for secret justice are even worse than first imagined.”
Defending the measures, the justice secretary, Ken Clarke, said: “The bill ensures that no evidence given openly in court at the moment can be given in secret in future, and gives the judge the final decision about whether any evidence at all can be heard in closed session.
“Civil claims of mistreatment or complicity in torture brought against British agents which cannot currently be heard in our courts can in future be heard,” he said, referring to the proposed secret hearings. “It will stop the taxpayer being forced to pay out compensation even where a case has no merit, and will ensure that the public receives an independent judgment either way on serious allegations which have been laid against the government.”
But the Lib Dem peer Lord Macdonald, a former director of public prosecutions, said the legislation was still flawed. “Some government wrongdoing in the area of national security is going to be less likely to see the light of day,” he told BBC radio. “The bill still contains much which is offensive to our traditional notions of equal parties adjudicating cases in front of an impartial judge.”
The shadow justice secretary, Sadiq Khan, said: “The government has rushed out the bill, doing so at breakneck speed. Swiftly moving to legislating without fully responding to the consultation is unwise.”
The Liberal Democrat peer Lord Wallace of Tankerness, introducing the bill into the Lords, acknowledged that many experts found ‘Closed Material Procedures’, the technical term for secret hearings, to be “a departure from the tried and tested fundamentals of open justice.
“I entirely agree with them in principle,” he added, “no government proposes measures in this area lightly. But CMPs are already available in a number of areas of law for the good reason that where the courts have recognised that the best option of hearing evidence in open is not available, they provide a fairer outcome than the alternative which is no justice at all.”
Amnesty International warned that the bill would “allow the government to throw a cloak of secrecy over wrongdoing, including the alleged involvement by UK officials in rendition, secret detention and torture”.
Lawyers for Guantánamo detainee Binyam Mohamed, and the former leader of the Tripoli Military Council, Abdel Hakim Belhadj, currently taking action against the British government and the former foreign secretary Jack Straw, condemned the bill as “draconian, unnecessary and offending the fundamental principles of justice”.
Sapna Malik, of Leigh Day & Co, said: “What would happen in the cases of those women and children rendered to Gaddafi’s Libya in 2004, merely for being related to Libyan dissidents? They do not deserve to be subjected to the same sort of secret sham trials which condemned their husbands or fathers to death back in Tripoli.”
Cori Crider, a lawyer for the human rights groups Reprieve, said: “Guantánamo has secret courts but at least I, the lawyer, still get to talk to my client [there]. Shouldn’t that cause us all to think again? … This bill, even with the changes, is still fundamentally unfair. Clarke needs to take a hard look at himself and ask whether this is how he wants to be remembered as minister for justice.”
A ministry of justice spokesman said: “The Bill places a specific requirement on the Secretary of State to consider a PII before applying for a closed hearing.
“The judge, special advocate and Government counsel, will debate how best to treat each document, but the Courts will have the ultimate power to decide which documents, or parts thereof, should be heard in open court. If the court believes that material will not damage national security, it will order its disclosure or reject the CMP application.”
CMPs are an additional tool for the courts. Where a case is heard with PII now, it still would be in future. But those cases which cannot be held under PII would, for the first time, be heard.”