Archive for May 11th, 2012

The Queen’s Speech and National Security
BY Krishnan Nair
National security is of course a chief concern of any government, more so for the hosts of the Olympic Games in an Olympic year. The Queen’s speech, delivered on May 9th, set out the coalition’s legislative plans for the upcoming parliamentary session. Among the bills described in the lengthy speech was the Justice and Security Bill. The speech reintroduces to the public conscience a green paper, originally published in October, which outlines the Government’s intentions behind this bill. These are summed up in the early phases of the paper:
“The first duty of government is to safeguard our national security. In delivering this duty, the Government produces and receives sensitive information…Sensitive information can be used to prevent terrorist attacks, to disrupt serious crime networks and to inform decisions such as deportations and asset freezing. Such decisions are often challenged and reliable procedures are needed to allow such cases to be heard fairly, fully and safely in the courts…The Government believes that there is scope to make improvements in response to recent court rulings”.
But what are these ‘improvements’ the Government speaks of and why must they be made? Well, as the paper expounds, “the Government is concerned that the UK’s critically important and hard-earned secrets and those of our intelligence partners may be obtained by individuals through a recent development in our justice system”.
January saw the conclusion of the 3 year long MI5/MI6 torture debacle which started in 2008 with the Binyam Mohamed case. The intelligence and security services were accused of being complicit in the torture of suspected terrorists; frustrated, they’ve been pushing the government for greater protection of ‘sensitive information’ through more closed material procedures.
The bill enhances and creates a more temperate ground for closed material procedures in civil claims cases. Closed material procedures are by their very nature highly controversial. For some – Ken Clarke certainly – in the interests of national security they are vital. For others, they represents a rule of law own goal. The right to a fair hearing – the right to hear and to have the opportunity to respond to the evidence imparted against you – eroded. Such procedures might involve barring parties – along with their lawyers – from viewing sensitive information which could be used against them. More than this, lawyers are replaced by ‘special advocates’, many of whom have spoken out against the bill:
“It is one thing to argue that, for reasons of national security, the unfairness and lack of transparency inherent in [closed material procedures] should be tolerated in specific areas – such as deportation appeals and control-order proceedings. It is quite another to suggest government ministers should be endowed with a discretionary power to extend that unfairness and lack of transparency to any civil proceedings, including proceedings to which they are themselves party.”
Last month I wrote about a case which raised an important question about closed material proceedings: is there sufficient disclosure of material on which a party can instruct special advocates and effectively respond to the case made against them (or indeed mount a claim against another) and have a fair hearing? I concluded that cases in which decisions are predominantly made on the basis of closed material are probably unfair. But does the bill change this concept of fairness, where what is fair is considered only after security considerations have been attended to?
The green paper does at various points address fairness and justice: “as much relevant material as possible should be considered by the courts in order that judgments are based on a complete picture and that justice is done more fully”. But the paper goes on to entertain a tighter system for disclosure by suggesting we “[reinforce] existing mechanisms to prevent harmful disclosure of sensitive information”. Reinforcing existing mechanisms will likely see an increase in the number of cases where sensitive evidence is given in court, but not seen by all parties. Deportation cases will probably be the first to feel the impact.

Without a clear definition of fairness in a closed material context, open justice is surely threatened. Of this matter Amnesty International UK Policy Adviser Tara Lyle said: “These proposals are dangerous and should be dropped…They will allow the government to throw a cloak of secrecy over wrongdoing, including matters as serious as the alleged involvement by UK officials in human rights violations like rendition, secret detention and torture”.
Granted, this is a difficult topic for the Government to contend with. But it appears fairness is to take a backseat to security, depending of course on how we must now define fairness. Is the Government simply bending to the whim of the intelligence services or have they given full and proper consideration to fairness?
Krishnan Nair writes on immigration and employment law for the Mulberry Finch blog.

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