The case for secret hearings was chewed up and spat out by a panel of ravenous open justice campaigners this week.
Legal experts, pressure groups and journalists tore into Ken Clarke’s Justice and Security Green Paper at an all party parliamentary meeting on Monday (12 March), leaving just the exposed bones of his proposals to pick over.
Only the meeting’s chairman, Lord Anthony Lester of Herne Hill QC, playing a Dumbledorian version of devil’s advocate, attempted to balance the bloodbath.
But by the end of the meeting, titled ‘Secret evidence, justice denied?’, there was little need for the question mark in the title as those attending were unanimous in their view that secret evidence means justice is denied.
The premise is this: the Justice and Security Green Paper wants to expand the use of secret evidence in civil litigation, allowing the Secretary of State to trigger a closed material procedure (CMP) in any hearing where they consider that disclosure of sensitive material could cause damage to the public interest.
It is unsurprising that special advocates, experienced inquest lawyers and journalists meticulously dismantled the semantics of the paper – such as the deliberately vague definition of ‘public interest’. But by also rejecting what they termed the “bogus” reasoning on which the proposals are based, they showed their bite is just as bad as their bark.
Currently CMPs are controversially used in a very small number of niche proceedings such as deportation orders, usually on national security grounds. They exclude the press, the public, the claimant and their lawyer.
Martin Chamberlain, a special advocate at Brick Court Chambers, eased the audience into the overarching principles that have prompted organisations such as Inquest, Justice, Liberty and Reprieve to “unequivocally” reject the proposals.
They fear that the Government will be placed above the law by ministers who can decide what information can be in the public domain.
Chamberlain warned that the green paper risked undermining public faith in the “fundamentally British concept” of a decision-making process that is fair and transparent. He said a striking feature of the justice system is how much the court’s verdict is respected – but that this would be lost.
The former Director of Public Prosecutions (DPP) Lord Ken Macdonald QC of Matrix Chambers then led the pack across the Atlantic, savaging the US influence on the Government’s “completely disproportionate” agenda.
The embarrassment from both countries over the torture of British citizen Binyam Mohammed at Guantanamo Bay has triggered a knee-jerk over-reaction, Macdonald said.
“When I was the DPP we had serious run-ins with the justice department over where terrorists were tried,” he said. “The UK came under enormous pressure and there were extremely heated discussions where the US said the relationship would be different. It never was. We had our fights and dusted ourselves down. We rely on each other. Our intelligence is closer than any other country. Their threats ring hollow.
“This is an audacious attack on our justice system. This is a shocking response to the Binyam Mohammed case to shut down part of our justice system rather than make sure it doesn’t happen again.”
The Mail on Sunday’s David Rose and Richard Norton-Taylor of The Guardian gnawed at the spine of the green paper, with Rose using typical journalistic bullishness in wringing a quote from a US Government official that he argued showed the whole green paper was “founded on a lie”.
Rose said Clarke is claiming that CMPs are needed as a “stopper” because the intelligence from the UK-US special relationship is drying up.
But he demanded to know from a high-ranking American spokesman: “Has there been a serious deterioration between the CIA and its sister agency in Britain over the Binyam Mohammed case or is it as close as it has always been?”
The response, read gleefully aloud by Rose, was: “There has been no deterioration in the relationship, which remains as strong as ever.”
Rose, whose human rights lawyer sister Dinah Rose QC of Blackstone Chambers represented Binyam Mohammed, concluded that from this response, the CIA had no concerns about our “leaky courts”, rendering the argument for an increase in secret hearings “bogus”.
Doughty Street Chambers specialist inquest barrister Henrietta Hill, was less flamboyant with her language, but came to an equally emphatic conclusion.
She has appeared at high-profile inquests including the on into the shooting of Jean Charles de Menezes and Princess Diana hearings, which would have been closed under the new legislation.
“In my experience, when gifted orators debate law, open justice and fairness, it is often those without a voice that are forgotten – the victims and their relatives,” she said.
Hill speaks for them and made a strong case that families of people killed in war, terrorism, or botched police operations would never know the truth and that existing powers of the “archaic system” are more than enough to protect national security interests.
Hill said that lessons learned from the “most sensitive” 7/7 London bombings inquest has made the nation safer. She summarised: “There’s no business case for it.”
While Government ministers had been invited to the meeting, they declined to attend.
As the consultation period is now closed, this growling pack of open justice attack dogs looks set to get louder in the run up to the publication of the white paper in May.