Ever since the events of 9/11 and subsequent ‘War on Terror’ there has been an increasing and relentless obsession with the protection of national security in the UK. In recent years, the government has put forward numerous proposals to curtail fundamental human rights for the sake of ‘national security’. A prime example is the failed attempt by Gordon Brown in 2008 to grant the police powers to detain terror suspects without charge for up to 42 days. More recently there has been a continued assault by politicians, including the Prime Minister, on the Human Rights Act, vowing to replace it with a ‘British’ Bill of Rights. However, there is now a new threat to human rights protection in the UK, one which would mark the death of the fair trial as we know it. This threat comes in the form of the Justice and Security Bill 2012.
The part of the Bill which has sparked most concern amongst human rights activists is the provision which proposes to extend secret courts to civil cases (see section 6 in Part 2 of the Bill). Secret courts, officially known as ‘closed material proceedings’ (CMPs) are far from new. Currently, hearings before employment tribunals, the special immigration appeals commission, and the investigatory powers tribunal (concerned with complaints relating to the intelligence services) can all take place in secret, for the protection of national security. However, thus far use of secret courts has been confined to the above circumstances, and with good reason.
CMPs are held in private and are used in cases involving security sensitive information, the public disclosure of which would allegedly jeopardise national security. In these proceedings the sensitive information is seen by the judge and ‘special advocates’ only. The ‘special advocate’ acting on behalf of the client then reports back, but can only provide the client with a ‘gist’ of the evidence seen. Therefore, the claimant may well be kept in the dark over the contents of crucial evidence and allegations made. A fundamental aspect of any fair trial. To extend use of these secret courts further would only serve to spread this darkness.
Why then, despite such vast opposition, is the government going to such great lengths to try and pass this Bill? Well, according to Ken Clarke, the main proponent of this Bill, the new laws would actually help further justice. Many cases cannot currently be heard in court due to national security concerns and are therefore instead settled out of court, depriving the claimant of a fair judgment. However, under this Bill such cases would be heard, albeit in secret. Therefore, according to Ken Clarke we need to extend the use of secret courts, thereby jeopardising the right to a fair trial, so that claimants in such cases can have a fair trial. Something about this argument does not seem quite right.
Once such justifications for the Bill are dismissed it becomes clear that the true and sole motivation behind the proposals is to allow the government to hide evidence which brings its human rights record into disrepute. For example, recently in the news it was revealed that more than 54 countries, including the UK, had been complicit in the CIA’s extraordinary rendition programme following 9/11. Subsequent claims before UK courts confirming UK complicity in such programmes would be politically embarrassing to say the least. However, under this Bill there is no reason to fear. Simply claim that disclosure of such evidence would threaten ‘national security’ and it can be hidden forever.
The Justice and Security Bill 2012 would mark the death of the fair trial in the UK and allow the government to hide any evidence which brought its own human rights record into disrepute, simply by uttering the magic words: ‘national security’. It must be rejected.