“No reason exists” to justify “inherently unfair” Secret Courts, say expert lawyers

March 3, 2013

The Special Advocates, a group of expert lawyers who work in cases involving national security, have attacked the Government’s plans for secret courts, describing them as “inherently unfair and contrary to the common law tradition.”

They have also criticised the lack of evidence produced by the Government in support of the plans to roll out secret courts – or ‘Closed Material Procedures’ (CMPs) – across the civil justice system, saying that “no…reasons have been advanced” to justify the move, and adding that “in our view, none exists.”

The new criticisms, contained in a note submitted to Parliament’s Joint Committee on Human Rights in February, come ahead of this week’s Commons debates on the plans, which are contained in the Justice and Security Bill.

The use of CMPs would mean that, in cases brought against the Government, ministers would be able to exclude the press, the public and even their opponents from the court room, and present a one-sided case to the judge.  They have been criticised as a significant departure from long-established principles of open and natural justice, including the right to hear and challenge the evidence used against you in court which is at the heart of Britain’s adversarial system.

The Special Advocates warn that, under CMPs, “it will be possible to have proceedings in which the court’s decision is based entirely on evidence about which one of the parties has been told nothing at all.”

Civil liberties groups, including Reprieve, have expressed concerns that it would be possible to use CMPs to cover up Government embarrassment or wrongdoing in cases involving abuses such as torture.

In their note, the Special Advocates say:

    “[We] reaffirm our view that no compelling justification for the proposals in Part 2 of the Bill has been made out, notwithstanding the Government’s assertions to the contrary” “We consider CMPs to be inherently unfair and contrary to the common law tradition, because they allow the court to makes its decision based on evidence which one party is unable to see or comment on or challenge.” “There is to date no example of a case in which a fair trial has been shown to be impossible because of the application of existing rules to sensitive national security evidence.” “It has not been shown in practice that the present system has led to any unfairness, as no case has been identified which could not be tried fairly under existing procedures” “We therefore remain of the view we previously expressed: ‘that CMPs are inherently unfair and contrary to the common law tradition; that the Government would have to show the most compelling reasons to justify their introduction; that no such reasons have been advanced; and that, in our view, none exists.’”

Commenting, Reprieve’s Executive Director, Clare Algar said: “The Special Advocates are the experts in this field, and it is shameful that the Government has not respected their views.  They are taking a principled stand against plans for secret courts which would undermine centuries-old British freedoms and put the Government above the law.  Even if ministers won’t listen to them, our MPs must, and vote against these plans in the Commons this week.”

ENDS

Notes to editors:

1. For further information, please contact Donald Campbell in Reprieve’s press office: 07791 755 415 / donald.campbell@reprieve.org.uk

2. The Special Advocates note can be viewed in full here

3. The Justice and Security Bill is expected to be debated at Report Stage in the House of Commons on Monday 4 and Thursday 7 March.  Further information on the Bill can be found here

4. Follow Reprieve on twitter: @ReprieveUK; if you were forwarded this release, sign up to join our press mailing list.