As Parliament prepares to vote on the Justice and Security Bill today, Terry McGuinness outlines why Closed Material Procedures (CMP) are an affront to open justice.
Sami al Saadi was a long way from home when in March 2004 Colonel Gaddafi’s agents finally caught up with him. Along with his wife and children, the dissident was kidnapped in Hong Kong and forced onto a plane bound for Libya. Upon arriving in their homeland the whole family was initially imprisoned and the long detention and torture of Mr al Saadi began. The rendition of a whole family to the torture chambers of the Gaddafi dictatorship was made possible due to a joint operation involving British and American intelligence services.
In December 2012 the UK government offered £2.23 million to settle the claim brought by the al Saadi family. In accepting the sum Mr al Saadi made clear that he took the legal action in order to expose the government’s role in the affair. His decision to settle the claim out of court was not one influenced by the size of the offer but rather a fear that his case in the UK courts would echo proceedings in his past:
“I started this process believing that a British trial would get to the truth in my case. But today, with the government trying to push through secret courts, I feel that to proceed is not best for my family. I went through a secret trial once before, in Gaddafi’s Libya. In many ways, it was as bad as the torture. It is not an experience I care to repeat”.
Members of Garden Court Chambers are among the 702 lawyers protesting the government’s Justice and Security Bill, the final form of which the House of Commons votes today. The bill represents a legislative response to the earlier, high profile litigation brought by other victims of rendition and torture. Rather than holding to account those responsible and introducing further safeguards to prevent such violations of human rights, the government has moved to shield the security services from scrutiny and to keep victims, the press and the public in the dark.
The bill’s provisions will achieve this in two ways. Firstly, by extending the application of the Closed Material Procedure (CMP) and use of government-vetted Special Advocates (SAs) into the ordinary civil law. Secondly, by putting the security services beyond the reach of Norwich Pharmacal applications.
The CMP was first introduced in 1997 to allow the government to rely on evidence before the Special Immigration Appeals Commission (SIAC) without having to disclose it to the other parties to the proceedings. The CMP has since been extended to other specialist proceedings and despite limited use has remained highly controversial. The Justice and Security bill proposes to allow the government to fall back on the CMP in ordinary civil proceedings whenever a minister believes that the disclosure of certain material may damage national security interests. The government would thus be able to rely on evidence unseen and unknown by the other parties in the case. The inherent unfairness and risk of injustice arising from a party’s inability to see and contest the evidence relied on by the government is obvious. It is completely contrary to the principles of openness, transparency and equality before the law upon which our justice system is founded.
In response to such criticism the government again relies on the phenomenon of Special Advocates – the rank of government appointed, security services-vetted barristers tasked with safeguarding the interests of those against whom the government has invoked the CMP. However the built-in constraints on how they interact with their excluded clients present SAs with huge if not impossible challenges in providing effective representation. They are precluded from speaking to their client or their client’s regular lawyers without the permission of the government. They can never discuss the material relied on in the ‘closed’ hearings to which their clients are excluded. In June of last year 50 SAs submitted to the parliamentary Joint Committee on Human Rights a memorandum protesting that CMPs ‘are inherently unfair and contrary to the common law tradition’. In 2004 Ian Macdonald QC, one of the first SAs, resigned in protest. He explained:
‘I resigned because I felt that whatever difference I might make as a special advocate on the inside was out-weighed by the operation of a law, fundamentally flawed and contrary to our deepest notions of justice. My role was to provide a fig leaf of respectability and a false legitimacy to indefinite detention without knowledge of the accusations being made and without any kind of criminal charge or trial. For me this was untenable’.
The other key proposal in the Justice and Security bill relates to Norwich Pharmacal applications. These are applications to the court requesting an order for disclosure of material relating to the wrongdoing of a third party. A pertinent example of such an application is that brought by Binyam Mohamed, who sought an order requiring the British government to disclose information relevant to his defence against terrorism charges in the Unites States. (See The Queen on the application of Binyam Mohamed v The Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 65) Both the High Court and the Court of Appeal ruled that the intelligence services could in principle be required by a Norwich Pharmacal order to provide information which corroborated Mr Mohamed’s claims of torture at the hands of the US authorities. The robust and highly critical submissions advanced by the Secretary of State in his appeal against the Divisional Court’s order show the strength of government feeling about its wrongdoing coming to light.
Should the Justice and Security bill become law, the government need not worry again. The security and intelligence services will be made exempt from Norwich Pharmacal orders. This will limit and possibly deny access to justice. It also offends a key principle of the rule of law – that no-one, neither citizen nor government, is above and beyond the law.
The bill represents a serious threat to centuries old common law principles that underpin the UK justice system. It is a hugely disproportionate response to a small number of cases from which the government has failed to make the case that national security was threatened. Those SAs tasked with mitigating the unfairness have spoken of their frustration and helplessness in trying to represent their clients, likening the experience to ‘taking blind shots in the dark at a hidden target’. If fairness in civil proceedings is to be preserved and victims’ access to justice protected, the key proposals of the Justice and Security bill must not be allowed to become law.