By DAVID ROSE Last updated at 2:36 AM on 8th January 2012 What a difference 19 months makes. Speaking in the sun-lit Downing Street gardens as he launched the Coalition back in May 2010, Prime Minister David Cameron promised it would be ‘committed to civil liberties and curbing the power of the state’. Nick Clegg added that after years of Labour authoritarianism, theirs would be a government ‘that hands you back your liberties’. Now, however, almost unnoticed, this same Government is planning to enact highly illiberal changes to the justice system. If, as Mr Cameron intends, they become law later this year, the consequences will be an unprecedented growth of secret hearings in both civil court cases and inquests; to deny ordinary citizens the ancient Common Law right to challenge evidence against them; and to make it far more difficult to call wrongdoing by government agencies to account. If they become law later this year the consequences will be an unprecedented growth of secret hearings in both civil court cases and inquests Greater secrecy in court would have a further by-product: the stifling of investigative journalism, for which information rev-ealed through the legal process is often critically important. ‘Many of the biggest recent scandals were exposed through a combination of journalism and litigation,’ says Shami Chakrabarti, director of Liberty. ‘These proposals would bring the shutters down for ever.’ The key points, set out late last year in a Green Paper on Justice and Security, include a sweeping power to allow Ministers to withhold evidence they deem ‘sensitive’ from any civil open court hearing or inquest, if the Minister thinks disclosure would cause ‘damage to the public interest’. The courts would not be able to weigh such assertions against the need for open justice, while the terms ‘sensitive’ and ‘public interest’ are not defined. The key points, set out late last year in a Green Paper on Justice and Security, include a sweeping power to allow Ministers to withhold evidence they deem ‘sensitive’ from any civil open court hearing or inquest, if the Minister thinks disclosure would cause ‘damage to the public interest’ But lawyers say the types of material that could be concealed are likely to embrace not only national security, but policing, relations with foreign governments, and government commercial contracts. In most cases, the Minister exercising this power would also be a party to the case – an extraordinary conflict of interest, which breaches another Common Law principle, that ‘no one shall be a judge in his own cause’. The Green Paper also states that in cases where this ‘closed material procedure’ was invoked, the only person apart from the judge and the lawyers representing the Government who would be allowed to see the secret evidence would be a ‘Special Advocate’. These advocates are security-vetted barristers of the type already used in immigration hearings involving national security – such as that of Ekaterina Zatuliveter, the Russian Commons researcher who MI5 claimed was a spy. Special Advocates are not only forbidden from talking to their clients, they may not even speak to their ‘normal’, open-court lawyers. ‘The Government can make an allegation, but you have no way of countering it because you can’t find out what the client’s response might be,’ one former Special Advocate says. ‘They might claim your client had been identified doing something incriminating by their beard. You can’t even ask whether they had a beard at the time.’ Lord Kerr said the right to be informed of the case made against you is not merely a feature of the adversarial system of trial, it is an elementary and essential prerequisite of fairness.¿ A further key point from the Paper is that in cases where the evidence was secret, all or part of the court’s eventual judgment would remain secret too. One result would be that a citizen who lost a case against the Government would never find out why. Another would be the steady accumulation of secret legal precedents: case law hidden from the public. Whitehall sources say the Green Paper proposals are the direct consequence of the efforts of this newspaper and others to expose British Government complicity in the ‘extraordinary rendition’ and torture of terrorism suspects such as the former Guantanamo Bay prisoner Binyam Mohamed. Two years ago, we persuaded the Court of Appeal that hitherto redacted details of his treatment, contained in a High Court judgment, should be published. After the 2010 Election, say the sources, MI5’s Director-General, Jonathan Evans, began a Whitehall lobbying campaign, arguing that the scrutiny Mr Mohamed’s case had directed at his agency had caused severe damage. He was also trying to overturn a decision by the Supreme Court, made after former Guantanamo prisoners sued the Government for damages. Although the Government had already settled the case by paying them millions, MI5’s lawyers tried to get the court to agree that even without legislation, they should have the right in future to have evidence heard in secret, concealed from all but Special Advocates. The Supreme Court’s response was withering. In the words of one of its judges, Lord Kerr: ‘The right to be informed of the case made against you is not merely a feature of the adversarial system of trial, it is an elementary and essential prerequisite of fairness.’ Secret justice: There may not be as much transparency Lord Kerr also rejected the Government’s argument – repeated in the Green Paper – that allowing the judge to see all the evidence would protect individuals’ rights. This was ‘deceptively misleading . . . To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead’. Mr Evans was undaunted. Months ago he was boasting that if he could not get his way at the Supreme Court, he would persuade Mr Cameron to grant it through an Act of Parliament. But though the new proposals’ origins may lie in Guantanamo, their scope is far wider. What price the 7/7 bombings inquest if Ministers could conceal evidence merely by classifying it as ‘sensitive’? What would be the chances of the recent case filed by female Green campaigners, who discovered they had been seduced by undercover police officers? ‘It’s incredibly dangerous,’ says one leading QC. ‘All too easily, “sensitive” can mean simply embarrassing, or inconvenient.’ In a foreword to the Green Paper, Justice Secretary Kenneth Clarke claims these ‘commonsense proposals’ would merely ‘better equip our courts to pass judgment in cases involving sensitive information’. The Paper asserts that the existing use of secret evidence and Special Advocates in immigration cases has proven them ‘capable of delivering procedural fairness’. Interestingly, the Special Advocates themselves disagree. On Friday, 59 of them – of a total of 69 – submitted a response. They said: ‘Contrary to the premise underlying the Green Paper, the contexts in which closed material procedures are already used have not proved that they are “capable of delivering procedural fairness”.’ In fact, their experience had shown that they ‘represent a departure from the foundational principle of natural justice, that all parties are entitled to see and challenge all the evidence relied upon before the court . . . They also undermine the principle that public justice should be dispensed in public.’ Yet all three main parties have indicated they support the plans, and to date, only one MP has publicly opposed them, the Conservative David Davis. ‘They are a disgraceful assault on the principles of open justice,’ he says. ‘When it comes to curbing misbehaviour by the executive, we would end up with the least effective courts in the English-speaking world.’ ‘When you think about it, it is rather ironic,’ adds Ms Chakrabarti. ‘The Green Paper has emer-ged as a result of terrible scandals. And yet the Government’s answer is not to ensure greater public scrutiny, but lessSecret justice:
How Cameron and Clegg vowed to hand back our liberties
but are instead planning illiberal changes to justice system
Tuesday 10 January 2012
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