Tom McNally has expanded his Brighton speech in favour of the Justice and Security Bill on Liberal Democrat Voice. He makes several assertions and assumptions that simply do not stand up to scrutiny.
- The main objection to closed material proceedings is not, as Tom (and most of the media) claim, that they are ‘in private’ but that they are one-sided. Not only the public but also the other party is excluded. Even the other party’s lawyer is excluded. The other party is ‘represented’ by a special advocate who is not allowed to reveal the precise facts in issue. ‘Evidence’ put forward in those circumstances is not really evidence at all. It is untested assertion.
- Tom talks about the Bill applying to civil actions as if they are all about money. But since the Bill doesn’t define ‘civil’, the assumption must be that it applies to all cases to which the Civil Procedure Rules apply. That includes judicial review cases and cases where claimants seek not money but to vindicate their rights, for example habeas corpus cases. We have to ask ourselves why the Bill extends to such cases. What kind of evidence does the government want to put forward in habeas corpus cases that cannot be shown to the person imprisoned? In a habeas case, the court asks the person who is holding someone against their will what legal justification they have for holding that person. Are we really to have a system in which the secret services can put to the court accusations they refuse to allow their prisoners to know about? I thought we were against Guantanamo.
- Tom asserts that secret one-sided proceedings will only happen where ‘there is no other possible way of hearing the arguments’. But this is not the same as allowing them only as a last resort, a rule the government has voted out of the Bill. It means that the government insists on its arguments being heard even if the only way of doing so is to destroy the fairness of the proceedings. Tom claims that judges will have a choice about whether to allow secret one-sided proceedings, but the government refuses to allow judges to make that choice on the basis of whether the interest in national security would outweigh the damage to fair and open justice. Instead, judges have to apply a test that assumes that secret one-sided proceedings are fair simply because they put more information in front of the court. If one took that idea seriously, the whole law of evidence would have to be abandoned and courts would turn into mini-Parliaments where anyone could say pretty much anything.
- Tom asserts that allowing secret one-sided proceedings is ‘necessary to protect both our intelligence and our intelligence-sharing relationships’. This is the argument that dared not speak its name at Brighton, that the real reason for the Bill is that the USA is insisting on it and is threatening to restrict the information it shares with us about terrorists unless the Bill passes. But that would be an extraordinary way for the USA to behave, especially since there are so many US citizens in Britain at any one time that any large-scale terrorist attack here would risk American lives. It is highly unlikely that a US administration would risk such a moral and political catastrophe. It would also be a weird way to treat its closest ally.
- Tom worries that allowing claimants to succeed in civil actions against the secret services will cause them reputational damage. But the Bill itself is leading to the same reputational damage. What the secret services are saying is not that they did not torture or kidnap but that they had good reason to torture or kidnap. The fact that they are not prepared to say openly why they tortured or kidnapped leads many to suspect that the details of their arguments are just as shameful as the basic facts of what they did.
But the greatest weakness of Tom’s piece is that it looks only at what happens during trials. Lack of fairness in individual cases is only the start of the objections to closed material proceedings. The most fundamental objection is that they lead to secret law. Judgments in existing closed material proceedings cases (e.g. control order or TPIM cases) have passages that are only shown to the government and the special advocate (for an example see Secretary of State for the Home Department v CC and CF  EWHC 2837 (Admin)). These cases create precedents that only the government can fully understand.
This is bad enough in the limited field of TPIMs, but the Justice and Security Bill threatens to extend secret precedent into the very heart of the law. Consider, for example, the torts of assault and battery and false imprisonment, torts on which our freedom from state oppression are built. The defences to these torts include necessity and self-defence. Those are precisely the defences that would be in issue in the most profound and difficult of cases, for example a torture and ticking time-bomb case or a case of holding a potential terrorist’s family as hostages. Are we really to have secret precedents in these areas of law? The very thought should make any liberal, or indeed anyone who believes in the rule of law, shudder.