Commissioned Scotsman, Edinburgh-
by Sam Khan – McIntyre
The controversial Justice and Security Bill, which will legitimise closed court cases, looks set to go ahead at the end of March, amid pressure from Government security agencies. This is despite widespread opposition and lack of evidence of a need for the new law.
The bill was passed in the Commons on 8 February by a majority of MPS (11) who rejected a third reading. There is still further final reading taking place in the House of Lords on 12 March therefore there is still time to put pressure on them to make changes, says Farthing, and adds that it looks likely the bill will become law at the end of March.
The House of Lords, Labour and the Liberal Democrats tabled amendments to the relevant clause 6 of the bill, which were however overturned by the government.
These amendments had aimed to introduce increased judicial digression over the proposed closed courts, as well as a balancing exercise for the judge in his consideration of evidence.
The Joint Committee on Human Rights has also been critical of the proposed measures, said Sophie Farthing, policy officer for Liberty, a human rights organisation. The organisation has been lobbying against the bill since it was proposed in the green paper in October 2011. Farthing explained that amongst many people and organisations raising objections, The Daily Mail, printed petition signed by 700 lawyers. As a result Liberty joined forces with the newspaper. The public have also voiced opposition, for example through the campaign group 38 Degrees, when 29,000 out of a million members objected to the bill.
The bill is controversial as the proposals intend to bring close courts into civil law which will ensure that a claimant’s lawyer, as well as the claimant, will be denied access to documents which are deemed to be a security risk, and so cannot contest them.
Only a government appointed special advocate will be able to see the documents, who will be unable to even discuss them with the claimant and his lawyer. Therefore he will have to argue a one-sided case without full access to the facts, according to Kevin Laue of Redress. This is a human rights organisation helping torture survivors.
The controversial reforms are being pushed by government agencies such as M15 and M16 to which the government are listening, explained Farthing, despite the government having provided no evidence of such a national security requirement. Current laws which allow security services to keep certain documents secret are adequate, according to Laue.
The bill’s origins lie in 9/11 cases where the government was pulled up for wrongdoings, explains Farthing, as in the case of Binyam Mohammed, a British resident, who was tortured with the government’s knowledge. This bill is a way for the government and agencies to cover up such allegations up by making decisions behind closed doors where the claimant is unable to defend himself, as he is denied access to relevant evidence.
This situation involving torture explained Farthing is just one aspect of what the government may in future want to cover up, and the closed procedures could be applied to other issues such as complaints against police or negligence. The real reason for government secretiveness is not national security concerns, but that it does not want to face embarrassment if evidence of its wrongdoing leaks out to the public, as happened with the Binyam case, said Laue. The proposals will mean that ‘holding someone to account, when you cannot challenge, or even hear the evidence they are using against you, will be near impossible’ says Donald Campbell of Reprieve, which upholds human rights of prisoners. He quotes Former Lord Chief Justice Lord Bingham who said that it will be like ‘taking blind shots at a hidden target’.
With regards to Scotland, said Farthing that ‘National security is an area of law reserved to Westminster and therefore the Bill will apply to Scotland in national security sensitive cases, however the opposition expressed by the Scottish Government was nevertheless very significant’. Labour MP for Edinburgh, Mark Lazarowicz described the amendments which Labour, supported by the SNP and Plaid Cymru sought to reintroduce on the 4th of March. These being ‘a number of extra safeguards which had originally been put in by the House of Lords’. These said that only if necessary, a judge should make the decision when evidence could be given in a closed court, rather than the government or the prosecution. He added that ‘Unfortunately, our attempt to do so was outvoted’.
A spokesman for the Scottish Conservatives said: ‘while closed material procedures are not ideal, in very exceptional circumstances where national security is at stake, they are the only way of delivering justice. ‘This bill deals with issues of the utmost importance and equips our court system to handle sensitive intelligence material’. Laue does not agree with the Conservatives’ claim :-‘The government’s stated aim of the proposals, as being national security is a ‘red herring’, Laue continues, that ‘it will aid covering up embarrassment where the UK has broken its own laws, and international law [because] ‘Torture and complicity in torture is prohibited everywhere and at all times’.
Campbell of Reprieve, an organisation fighting lawfully on behalf of prisoner injustice worldwide, concurs – saying that the ‘intention’ of the proposals are that ‘secret courts would make it far harder to hold the government to account in cases of rendition and torture’. This is ‘due to the lack of any other evidence that they are needed’, which the government has failed to provide. The situation where the government found the need for such a proposal arose due to the case of Binyam Mohammed said Campbell, ‘as a response to the embarrassment which the government and its intelligence agencies suffered when it emerged through the courts that they had been involved in [his] torture and rendition’. The issue being that the British public discovered the government’s wrongdoings.
The result of this wrongdoing could have severe consequences for the claimant. Liberty’s Report stage briefing on Part 2 of the Justice & Security Bill in the House of Commons march 2013 said that the UK intelligence shown to American courts helped Mr Mohammed’s defence in the US. He was able to challenge the criminal proceedings against him through evidence that the information had been obtained through torture, without this evidence may have lead him to a conviction and the death penalty. With regards to the more far reaching effects of the proposals, Laue comments that ‘It is [part of] the mission-creep attack on civil liberties we have seen in the last decade. The UK’s courts have tried to protect human rights, but the government is much more concerned with avoiding accountability and hiding behind ‘national security’and that ‘it is frightening the lengths the government is going to’.
He also describes the bill as an extremely serious attack on the most fundamental freedoms this country has developed over centuries’. He said that the ‘an open civil procedure system […] is part of the rule of law and democracy’ because it is ‘not only for all parties but for the public to know what a case is all about and why judges make decisions the way they do’. Campbell adds that the effects would be that ‘the primary impact of this bill would be on the ability of the public to hold government in check through the courts’ because they would be denied the truth.
Farthing continues, worried because ‘public rights are concerned’ or compromised, as the proposals were made in the public’s name and false interests. Other consequences said Campbell maybe that it would do serious damage to centuries-old legal freedoms. Laue also that: ‘it exposes the UK to justified accusations of hypocrisy’ and furthermore that ‘it also helps less democratic states justify their own abuses and lack of transparency, because the UK should set the highest standards.
In relation to what the public can do, Campbell said: ‘Demand of their MPs to stop the bill; protest in all possible lawful ways; campaign; expose and explain what is at stake’. Farthing suggested that it is important to make views known to MPs in light of the next election, and that public engagement is important for democracy