“Justice should not only be done, but should appear to have been done.”
The British government’s flagship Justice and Security Bill made news once again in the Guardian last week; this time, as with most of the other times, it was to report on the politically damning information which the bill is accused of covering up. Indeed, the bill was described by frequent Guardian columnist and leader of UK pressure group Liberty, Shami Chakrabarti, as “a toolkit for cover-ups which would mark the end of a fair trial tradition admired worldwide for centuries”. But what is it about the Justice and Security Bill which has incited so much criticism, and are those criticisms just?
Possibly the provision of the bill which critics find most disagreeable is that closed material procedures, or “secret courts” as they have been dubbed, will be used more frequently. Closed material procedures (CMPs) were first introduced in 1997, and allow governments to present evidence to a judge in criminal and civil cases without having to show it to the rest of the court- including the defendant or claimant. They are normally only used in special circumstances, and even when they are used, they prove to be very controversial and subject to heavy litigation. But under the proposals of the Justice and Security Bill, their use could be extended for court cases where the evidence presented could damage the interests of national security.
There are two immediate- and significant- concerns raised by opponents of the bill. The first is based on the key democratic principle of open justice. This principle states that legal proceedings should be open to the public, but more crucially, that an essential component of a fair trial is to know the charges and evidence which are going to be brought and used against you. In CMPs, evidence can be used against the defendant or claimant without them or their lawyer knowing exactly what the nature of the evidence is. This gives the government a significant advantage in such trials. Although special advocates are appointed in CMPs, many critics argue that the scale is still tipped unfairly in the government’s favour. Special advocates are unable to disclose material to the person whose interest they represent, are not allowed to communicate with the person concerned without the permission of the Government and can never communicate with them about the secret evidence. This means that they are often required to contest evidence on the basis of guesswork and estimation.
The second objection is based on political accountability; holding ministers and other political figures accountable for their actions. Because the Justice and Security Bill allows ministers to withhold certain evidence if they deem it damaging the interests of national security, many critics argue that it places too much power in the hands of politicians, thereby ebbing away dangerously at the separation between politicians and the judiciary. A major criticism of the bill is that it allows politicians to hide evidence which is politically embarrassing or damning, so that it never reaches the public eye. One example of this could be where evidence of torture is presented. In November 2012, the Guardian reported that Philip Hammond, the defence secretary, tried to stop a hearing about the transfer of insurgents to Afghan jails where they risked being tortured. However, this would never have been revealed if the Justice and Security Bill had already been passed.
So it seems that from a judicial and political standpoint, the Justice and Security Bill is bad news. But former Justice Secretary Ken Clark spells out the bill’s main advantage as allowing cases that cannot currently be tried to be brought to justice. Clark argues that because some evidence carries too much of a potential threat, the cases are never even brought to court at all. But if the evidence could be presented to a judge without carrying any political consequences, the right decision can be made as the judge will be fully informed on the situation. Although some potentially damning evidence will never reach the public eye, it will at least meet the force of the law. Or, as Liberal Democrat Lord Carlile puts it, it’s not perfect, but it’s better than nothing.
The bill is currently headed to the committee stage in the legislative process. But, proving to be a divisive bill amongst the coalition, smooth sailing into the statute books can’t be guaranteed. The main dispute over this bill comes down to one judicial dilemma; what is more important, a fully informed judge, or a fully informed public?