Supreme Court criticises Government over unnecessary use of “offensive” Secret Courts

June 19, 2013

The UK Supreme Court has today hit out at Government lawyers over their unnecessary use of secret courts – known as Closed Material Procedures (CMPs).

In a judgement handed down in Bank Mellat v Her Majesty’s Treasury, the Court’s President, Lord Neuberger, said that “the closed material procedure” for which the Government had pushed “added nothing.” He also backed the conclusion of his colleague Lord Hope, who found that the Government’s “approach fell far short of what was needed to show that it was necessary for this procedure to be resorted to.”

CMPs – which were recently pushed through Parliament by Ken Clarke as part of the Justice and Security Act – are controversial as they see the state’s opponents shut out of the court, leaving them unable to challenge or even see the evidence used by the Government against them.

In today’s judgement, Lord Neuberger described such procedures as “offensive to [the] fundamental principle” of natural justice. Today’s case concerned the shutting down of a bank’s activities by the Treasury. But the Government has also made clear that it intends to attempt to use CMPs in the case of Abdul-Hakim Belhaj, an anti-Gaddafi dissident who was kidnapped and ‘rendered’ to Gaddafi’s Libya along with his pregnant wife Fatima Boudchar in 2004 – an operation in which MI6 played a central role.

Mr Belhaj has offered to settle his case in return for a token payment of £1 from each of the defendants – the Government, then-Foreign Secretary Jack Straw and former MI6 Director of Counter Terrorism Mark Allen – along with an apology and an admission of what happened. However, the Government has refused to accept his offer, instead choosing to fight the case in the courts. Mr Belhaj is being assisted in his case by human rights charity Reprieve.

Commenting, Reprieve’s Strategic Director Cori Crider said: “If the government was prepared to fib about how necessary these secret courts are in a financial case, the risk is tenfold worse when the case involves UK involvement in kidnap and torture. We have already seen Government lawyers arguing that they should also be used in the Belhaj case – in short, to cover up the way in which the UK handed Gaddafi his enemies, as part of Tony Blair’s dirty ‘deal in the desert.’ This is a powerful cautionary tale for any court asked to judge torture cases behind closed doors.”

ENDS

Notes to editors

1. For further information please contact Donald Campbell in Reprieve’s press office: +44 (0) 207 553 8166 / donald.campbell@reprieve.org.uk

2. The judgement can be found here: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0040_Judgment.pdf Lord Neuberger’s comments on the CMP adding nothing can be found at para 74; he also notes that he agrees with Lord Hope says at paras 89-97; Lord Hope says that the Government “fell far short of what was needed at para 90. Lord Neuberger explains why closed hearings – or CMPs – are “offensive” to natural justice at para 3.

3. Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives. Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of people facing the death penalty in the USA.

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