Secret justice and an abuse of power
Alarm at Government’s plan to allow controversial court cases and inquests to be heard behind closed doors
‘We cannot sleepwalk into this’
THE historic principle that justice should be seen to be done is threatened by hugely controversial plans to allow secret hearings, ministers are being warned.
Proposals for sweeping new powers which would allow the Government to withhold any evidence it deems ‘sensitive’ from an open civil court hearing or inquest are facing a chorus of criticism.
Former director of public prosecutions Ken Macdonald yesterday attacked the Government’s proposal for so-called ‘closed material procedures’ in civil courts, an attempt to prevent sensitive claims for damages being aired in open hearings.
Critics say the legislation has been ‘ dictated’ by the security services following an embarrassing string of cases brought against them by former terrorist suspects who claimed they had been subjected to torture.
In the case of Binyam Mohamed, a former Guantanamo Bay prisoner who sought to sue the Government for complicity in torture, the Government tried to conceal documents disclosing his alleged mistreatment but were overruled by the courts.
There is increasing concern that Justice Secretary Kenneth Clarke’s proposals will mean ministers being able to prevent a huge range of cases – from military inquests to police and medical negligence claims – being held in public. Negligence claims against the Ministry of Defence for death and injuries arising from ‘friendly fire’ incidents or failure of equipment would be a prime target for ministers seeking to avoid embarrassment, campaigners predict.
Past cases such as the inquiry into the shooting of Jean Charles de Menezes by police who mistook him for a terrorist could have been hushed up by the Government if the measures had been in force at the time. And MI5’S failings over the 7/7 bombings might never have come to light.
Shami Chakrabarti, director of civil rights campaign group Liberty, called the proposals a ‘shameless attempt to cover up abuses of power’.
She said: ‘ Proposed legislation wouldn’t just end the long-held principle that no one is above the law – it would exclude the Press, public and victims from seeing justice done.
‘Open courts and investigative journalists fought to uncover some of the worst scandals of the war on terror. Under these plans, future ministers would be granted sweeping powers to lock down embarrassing inquests and civil claims against the powerful. Victims of gross abuses of power, the public and the Press could be left in the dark for ever.’
Under the proposals, ministers will be able to order not only that a hearing is conducted behind closed doors, but also that claimants are denied access to government evidence or witnesses.
The reforms, detailed in a Green Paper on justice and security, are backed by senior figures in the security community, notably Sir Malcolm Rifkind, chairman of the parliamentary intelligence and security committee.
But legal experts in the field appear increasingly uneasy. Lord Macdonald, QC, said the plans would put the Government ‘above the law’ and must be reconsidered.
‘These unprecedented proposals are an audacious attack on the fundamental principle of British justice: that you should be able to know, and to challenge, the claims which are made against you,’ he said. ‘They threaten to put the Government above the law, while leaving ordinary citizens, and the Press, shut out of their own justice system.
‘After a decade in which we have seen our politicians and officials caught up in the woeful abuses of the war on terror, the last thing the Government should be seeking is to sweep all of this under the carpet. However, that is exactly what their disastrous secret justice proposals are likely to do.
‘We cannot afford to sleepwalk into a system of secret courts. David Cameron came to power saying “sunlight is the best disinfectant”. We should not sacrifice Britain’s open and transparent justice system simply to protect politicians and their officials from embarrassment.’ Concern is shared by significant numbers of ‘special advocates’, an elite group of barristers and solicitors who have special rights to deal with cases that involve evidence restricted due to national security concerns, the Daily Mail has learned.
Though these are the lawyers who would administer the Government’s new system, 57 out of the 69 current special advocates have indicated they they do not agree with the plans.
Helen Mountfield, QC, a serving special advocate, said: ‘Special advocates were never intended as a substitute for a fair trial and the inherent weaknesses of this system will leave a justice gap.’
The Prime Minister has said he is deeply worried by the ‘inability of the security services to defend themselves in civil cases because they cannot compromise national security by revealing sensitive information in open court’.
A Ministry of Justice spokesman said: ‘We have a growing problem in this country where individuals are alleging Government wrongdoing but the courts do not have the tools they need to get to the bottom of the matter.
‘The reason for this is that the evidence on which the case rests is either intelligence material given to us by our allies – which we have promised not to reveal – or it is material which could reveal the identity of sources, or damage our ability to keep the public safe.
‘This means that the Government is unable to defend its actions if the material has to be given in open court. It means that the claimants are left without any clear judgments by a judge based on all the relevant information, and most importantly it leaves the public with no independent judgment by a court on very serious matters.
‘We are therefore consulting widely on our proposal to allow sensitive evidence in this small number of cases to be argued before a judge in a closed court with the safeguards needed to protect public safety.’