The Independent View: why proposals for secret trials should be opposed

A “chilling threat to liberty and justice” an “excessive and dangerous”[£] move which would “shake our constitution to its common law roots” tilting it “towards the closed courts…so favoured by despots” and miring individuals in “Kafkaesque cases.”

As the Liberal Democrat Spring conference approaches, the disturbing potential of the Government’s plans to extend secret justice across the country’s civil courts has hit the headlines, with the Mail, Times, Guardian, Independent and FT all united in condemnation.

That sense of alarm is also becoming apparent within the party. Tom Brake, chair of the backbench Home Affairs committee, has described the Justice and Security Green Paper’s plans to extend ‘Closed Material Procedures’ – in which the citizen will be unable to hear or challenge secret evidence used by the state against them – as “a source of concern,” adding that “many Liberal Democrats share these fundamental concerns.”

Now, ahead of the gathering in Gateshead, an Emergency Motion has been submitted by party members, “call[ing] on Liberal Democrat parliamentarians and Ministers in the Coalition Government to… veto any proposed bill seeking to implement the Paper’s proposals.”

The motion has the backing of former Director of Public Prosecutions and Lib Dem peer Ken Macdonald – who has described the plans as “an audacious attack on the fundamental principle of British justice: that you should be able to know, and to challenge, the claims which are made against you.” Lord Macdonald, who is Chair of legal action charity Reprieve, also warned that the Green Paper “threatens to put the Government above the law, while leaving ordinary citizens, and the press, shut out of their own justice system.”

The plans were set out in a largely-unnoticed consultation document, released with little fanfare towards the end of last year, which proposed to roll out CMPs across the civil justice system in England. In these, once the minister has made the call that there is ‘sensitive’ material involved, the court goes into lockdown, and the citizen (along with the media) is excluded. To defend this move, Justice Secretary Ken Clarke has pointed to the ‘Special Advocate,’ a security-cleared lawyer who is allowed into the closed court to make the case for the client. What he has not mentioned is that meaningful communication between Special Advocate and client is simply not possible. Imagine, for a moment, trying to defend someone from allegations without being able to tell them what those allegations are, or to ask them for a response, and you will get an idea of how near-hopeless the Special Advocate’s task can be. These lawyers – the very people who should know best – have been highly critical of the plans, warning the Government that CMPs are “fundamentally unfair”.

On top of this, ministers propose to simply do away with the legal principle through which we first found out about Britain’s involvement in the rendition and torture of Binyam Mohamed. This case, concerning a British resident who was flown by the CIA from one brutal torture-site to another, while the UK fed intelligence and questions to his captors, was what blew our country’s involvement in some of the worst excesses of the ‘War on Terror’ wide open. The grisly truths which emerged from Mr Mohamed’s case were far from comfortable – not least for the Governments on either side of the Atlantic – but they were facts which had to be known and confronted, in order to ensure our country’s involvement in such abuses was never allowed to happen again. Again, much of the Government’s defence of its plans has been misleading. Briefing by officials that they are simply trying to stop opportunistic compensation claims by the enemies of the state obscures the reality: that the Binyam Mohamed case was about securing proof that so-called ‘evidence’ which US prosecutors wanted to use against him in a capital case had been obtained from him under the most appalling torture, and was therefore meaningless.

The Green Paper has so far received far less public scrutiny than it deserves, and many of the dubious claims made in its defence have simply been accepted at face value. It has to be hoped that, by turning the spotlight on it this weekend, the Lib Dems start to address that lack of attention. Unless we all pull together to challenge these plans, we risk sleepwalking into a system of secret justice.

* Clare Algar is the Executive Director of Reprieve, a human rights NGO.

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