Ministers' plans to extend their power to withhold evidence in civil proceedings will undermine ancient freedoms
Joshua Rozenberg
guardian.co.uk, Wednesday 16 November 2011 13.31 GMT
The foreign secretary is to endorse plans that will undermine a fundamental constitutional right: the right to open justice. As the Labour party is broadly supportive of the government's proposals, we can expect them to be approved by parliament next year.
William Hague may be right to argue that combating terrorism justifies changing the law and allowing some cases to be heard behind closed doors. What's essential, though, is that we should understand what we are doing and limit, as far as possible, the loss of our common law liberties.
These thoughts are prompted by the Atkin memorial lecture, delivered at the Reform club last week by Dinah Rose QC, and not yet published. Rose, one of the leading advocates of her generation in the field of judicial review and human rights, acted for Binyam Mohamed, a British resident detained by the US at Guantánamo Bay.
In response to a claim that the British government was complicit in his rendition, detention and torture, the government agreed, exactly a year ago, to settle Mohamed's case and compensate some 15 Guantánamo detainees. Although the figures are meant to be confidential, the government said last month that this had cost it £20m. Of this, Mohamed himself was reported to have received over £1m.
The claimants had to be paid off, according to the justice secretary, Ken Clarke, because the only way of defending the case would have been to disclose intelligence-related material to Mohamed and his fellow claimants. That could not be done without jeopardising the arrangements under which such material is shared with the US.
In July, the supreme court ruled by a majority of six to three that the government could not withhold evidence in a civil case without clear statutory authority; so that is what the government is now seeking.
In their justice and security green paper, published last month, ministers are proposing to extend what are called closed material procedures. Under these arrangements, the government does not disclose sensitive evidence to the other party or its legal team. Instead, the evidence is shown to the court and to a special advocate, an independent lawyer who has the challenge of representing the other side's interests without telling that side what the evidence says.
The government is proposing to make these closed material procedures available in all civil proceedings, not just those involving national security. The decision to withhold material damaging to the public interest would be taken by a minister. It could be challenged as unfair, irrational or disproportionate but, in line with the rules of judicial review, the courts would not be allowed to decide whether the government's decision was right.
This is quite different from the existing rules of public interest immunity, under which a judge must decide whether the public interest in withholding the evidence is outweighed by the public interest in the proper administration of justice. In such cases, material excluded cannot be relied on by either side, while material that is included must fully be disclosed by the government.
In one case 10 years ago, a compensation claim by a police informer had to be struck out because the court decided disclosure of police operational methods was not in the public interest. The government says cases such as these could be heard in future if closed material procedures were available.
But how many such cases are there? This is one of a number of pointed questions that the joint committee on human rights, a select committee made up of MPs and peers, has sent to the justice secretary. And how many other cases have had to be settled because the only way to have defended them would have been to disclose sensitive information?
Above all, the MPs and peers want to know why the government's proposals are drawn so widely. The green paper proposes (in paragraph 2.7) that closed material procedures would be available whenever a minister certified that "certain relevant sensitive material would cause damage to the public interest". That term is left vague but appears to cover international relations, crime prevention, police informers' identities and perhaps even commercially sensitive information in which the government has no direct interest.
Dinah Rose was scathing about the green paper's claim that a party's right to know the opposing case "will vary according to the circumstances". On the contrary, she said, it is a "very clearly defined common law right and a fundamental aspect of the adversarial trial". This had emerged clearly from the Binyam Mohamed case
She pointed out that one of the judges in that case, Lord Kerr, had rejected the "deceptively attractive" claim on which the government is basing its green paper: that it is fairer for the judge to consider all the evidence – even if one of the parties cannot see it – than to rule out part of the evidence on grounds of public interest immunity.
"To be truly valuable," Kerr said, "evidence must be capable of withstanding challenge. I go further: evidence which has been insulated from challenge may positively mislead."
Rose said the green paper had merely skated over some profound problems without even acknowledging that they existed. "A common law trial is designed to enable facts to be found on the balance of probabilities through an open adversarial process," she said. "If you bolt a closed procedure on to that, what you have is a process that is not adversarial, and not judicial. It may look and sound like a trial, but in fact it is nothing of the sort."
She thought the green paper had been greeted largely with indifference by those who saw it as a legitimate way of protecting the government from having to waste public money on terrorists.
"It troubles me," she concluded, "that the government can propose in this way, without any controversy and little fear of contradiction, to legislate for a secret process so alien to our judicial system."
No wonder the foreign secretary feels the need to speak out.
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