Secret justice: private consultations

Secret justice: private consultations

We should be proud of the ancient presumption that the evidence on which English courtrooms proceed is open

Editorial
guardian.co.uk, Sunday 19 February 2012 22.22 GMT

Plans to cast justice into the dark continue apace, with the end of a government consultation. New provisions to keep evidence secret from those whose fates turn upon it could be confirmed in the second Queen's speech of a coalition that once claimed to be animated by liberty.

Every liberal, and for that matter every patriotic Tory, should be proud of the ancient presumption that the evidence on which an English courtroom proceeds is evidence that's out in the open. The adversarial tradition allows both sides to test the strength of the other's case, by interrogating it to the very foundations. If this sounds highfalutin, take heed of the practical experiences of those few lawyers who have worked in the one British courtroom that departs from this principle, the Special Immigration Appeals Commission. Dinah Rose QC has spoken of being asked to shoot blindly at a concealed target. Ian Macdonald QC found the process so corrupting that he resigned as a special advocate as a point of conscience.

The issue with Siac is not the judge's ruling on the admissibility of, or right to report on, some particular piece of evidence, as applies more generally. Rather, it is a minister deciding to withhold elements – and sometimes the whole thrust – of the case against an individual from that individual themselves. Lawyers are barred from discussing the evidence with the one person it directly concerns. If the plans go through, this power will no longer be wielded only in a tiny number of immigration cases, but could instead be invoked in any civil case where ministers deem it is required by "national security", or – even worse – by a fuzzy notion of the "public interest". The only comeback would be judicial review, where the punishing test of "unreasonableness" is that a minister be found to have acted so wildly that no rational person could have pursued his or her claimed aims that way.

The security state's plea for a fair hearing is not being helped by the Cabinet Office's failure thus far to publish all the evidence that it took, or even from whom the evidence came. Although it now claims to be seeking permission to name the companies, police authorities and indeed parliamentary committees who privately lobbied in this public consultation, for the moment their very identities remain under wraps. The bad old days, where MI5's power was protected by an official refusal to acknowledge its existence, come to mind. That absurdity was scotched a generation ago, with the proper recognition that necessarily secret work could be performed by an acknowledged public body. Sadly, it seems that the security state retains its lazy preference for making its arguments in private correspondence – and in private courtrooms.
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