The Justice and Security Bill – a threat to open justice

Professor Bill Bowring of Birkbeck Law School, who is also a practising human rights barrister, writes about the potential impact of the controversial Justice and Security Bill.

The Justice and Security Bill, presently going through Parliament, threatens to take Britain back to the 17th century, through the regular use of secret evidence. The Coalition Government intends to expand the use of secret evidence to ordinary civil proceedings. As Liberty has pointed out, enactment of the Bill would be an unprecedented encroachment on the rule of law, and the principles of open and fair trial.

This controversial Bill is a panic reaction to the Labour Government’s defeat in 2010 in the Binyam Mohammed case. Binyam Mohamed was arrested in Pakistan and subjected by the US authorities to ‘extraordinary rendition’. He claimed that a confession that he had been trained by Al-Quaeda had been obtained by torture. Charges against him were dropped, after the US District Court of Columbia vindicated his claim that UK authorities had been involved in and facilitated ill-treatment and torture to which he was subjected while under the control of US authorities. He was released and arrived in the UK on 23 February 2009.

When he claimed damages, the UK Government attempted to exclude the evidence that he had been tortured, despite the fact that this was public knowledge in the US as a result of the judgment. On 10 February 2010 the Court of Appeal dismissed the Labour Government’s appeal against a series of Divisional Court judgments ordering that the Government was not permitted to exclude the information obtained from US sources. Jonathan Sumption QC, who is now a Justice of the Supreme Court, told the Court of Appeal on behalf of the Government that the Divisional Court’s decision was “unnecessary and profoundly damaging to the interests of this country”, and indeed that part of the reasoning of the Divisional Court was “irresponsible”. In fact all the information was already in the public domain.

Binyam Mohamed has now been paid a very large sum in compensation.

The Justice and Security Bill was introduced into the House of Lords on 29 May 2012 by Lord Wallace of Tankerness QC, a Liberal Democrat peer and Advocate General for Scotland. The Bill proposes a new Ministerial power to instigate, by application to the Court, a Closed Material Procedure (CMP), in cases where the Minister considers that disclosure of certain material would be damaging to national security. Until now, CMP has only been available in a very small number of specialist proceedings, such as in relation to “Terrorism Prevention and Investigation Measures”, and Control Orders. CMP takes place entirely in private; only the judge, the Government’s lawyers and a Special Advocate appointed by the Government for the litigant. The litigant and their lawyers are excluded. Unlike normal legal representatives Special Advocates are unable to disclose material to their ‘client’.

On 21 November 2012 Louise Christian of leading civil liberties solicitors Christian Khan chaired a public meeting at Garden Court Chambers, sponsored by the Haldane Society of Socialist Lawyers (of which I am International Secretary) and CAMPACC – the Campaign Against Criminalising Communities. The meeting was addressed by the human rights QC Dinah Rose; Richard Norton-Taylor, journalist on defence and security on The Guardian; Clare Algar, Executive Director of Reprieve; and Saghir Hussain Director of CagePrisoners. The theme running through the meeting was that open justice is a central principle of British law, and the right to a fair trial is a centuries-old feature of the common law and is enshrined in the European Convention on Human Rights.

I agree with the practising lawyers organised in the Bar Council and the Law Society that secret trials and withholding evidence are the standard practices of repressive regimes. The Bill if enacted will erode core principles of justice. The UK’s international reputation for fair trials will be significantly damaged.

Professor Bowring and Birkbeck Law School work closely with solicitors like Christian Khan, and the barristers at Garden Court, for example in the Law School’s annual week-long event “Law on Trial”.

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2 thoughts on “The Justice and Security Bill – a threat to open justice

  1. Dear Professor Bowring,
    I just wanted to say I thought your article was very informative. I am actually doing my dissertation on secret evidence and issues relating to national security, article 6 and the rule of law. I am finding it very interesting especially with the developments unfolding with the Bill. I think it is unfortunate that not enough people are aware of the issues of secret evidence . I was wondering whether there were any books you might recommend?
    Kindest Regards

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