Justice and security green paper: silence in court

Justice and security green paper: silence in court

The secretary of state would be free to shroud in secrecy any civil trial involving 'sensitive information' whose disclosure is likely to harm 'the public interest'

Editorial
guardian.co.uk, Friday 2 March 2012 19.37 GMT

The government's proposals to extend secret hearings – "closed material procedures" – to all manner of civil proceedings would deprive people of their rights to a fair trial, and undermine the principle of open justice. If the proposals set out in the green paper on justice and security become law, the secretary of state would decide if a claim against government should be heard in secret. Ministers whisper sweet reason about judges retaining a say on whether a case should be heard behind closed doors. That is true enough, but misleading. The judge will only be able to challenge secrecy where the secretary of state's deliberations were outright "irrational", as opposed to being free to strike a proper balance between open justice in public and any harm caused by disclosure.

The government, in the person of the secretary of state, may be easily persuaded that embarrassing evidence of misconduct by government officials should be kept under wraps. This is contrary to fair trial procedures – no one should be judge in their own cause. And why is it that we are facing this threat to the civil trial process in the first place? The security services lost their claims to secrecy in two key cases – Binyam Mohamed and al-Rawi – concerning allegations of complicity in torture. MI5 and MI6 persuaded the government to move to prevent further embarrassing disclosures.

The secretary of state would be free to shroud in secrecy any civil trial involving "sensitive information" whose disclosure is "likely to ... harm ... the public interest". This very broad definition could include, for example, actions against the police and inquests concerning deaths in custody or soldiers killed by "friendly fire". The government says it is enough for the judge alone to see all the sensitive material in a secret hearing. But the trial would still be unfair, as Lord Kerr said in the al-Rawi case when he damned "unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result". That assumption was awry, he went on, because the evidence would not have been challenged, and "evidence which has been insulated from challenge may positively mislead".

Even if the definition of sensitive information were confined to "national security" (and the green paper is sloppily ambiguous on whether it will be), we all know how this supposedly unanswerable phrase gets deployed to spare mere blushes. Indeed, the only cases the government offers – aside from an obscure one concerning a police informer – are those alleging UK complicity in serious breaches of human rights. In the Mohamed case, for instance, the government tried to bar the court from including in its judgment a brief summary of CIA knowledge of mistreatment which had been passed to British security services – even though the same (and more) had been disclosed in a US court, where a judge, Gladys Kessler, described it as "credible evidence of torture".

These proposals are simply a reaction to the failure to keep the lid on information suggesting UK complicity in torture and rendition. The "problem cases" have not arisen because of any failures in the judicial process. They have arisen because of British involvement in the outsourcing of inhuman and degrading treatment. Torture is an international crime, and any evidence of complicity in it must be open to scrutiny; the green paper appears to have been drafted precisely to avoid such scrutiny.

Ken Clarke, the instinctive liberal saddled with peddling these proposals, will next week have to defend them in front of a committee of MPs. They must not pull their punches. Judges have always been entrusted with balancing national security against the requirements of justice. To snatch this away by handing the secretary of state power to order secret hearings is to shake our constitution to its common-law roots, by undermining the ancient presumption for impartial judgment in open court.