By Donald Campbell
On Wednesday evening, the House of Lords inflicted heavy defeats on the government over the secret courts bill. But unfortunately the heart of these dangerous plans, which would put ministers above the law and deny justice to ordinary citizens, remains very much intact.
These proposals, set out in the justice and security bill, have their origins in Britain's involvement in the CIA's programme of torture and rendition. Just a few years ago, a US court established that Binyam Mohamed, a British resident, was "physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another," and noted that "The [US] government does not dispute this evidence."
In Britain, the high court found that the UK's involvement in Mr Mohamed's mistreatment went "far beyond that of a bystander or witness".
In short, the UK became involved in precisely the kind of abuses we are meant to stand against.
Since then, further evidence has emerged demonstrating the central role of MI6's head of counter-terrorism in arranging the rendition of Gaddafi opponents — along with their wives and children — back from exile and into the Colonel's torture chambers in 2004.
Disgracefully, the government's response to these revelations has not been to get to the bottom of them and ensure they never happen again. Instead, it has been a two-pronged approach of obfuscation and cover-up. First, we had the Gibson Inquiry into the allegations, a set-up so toothless and devoid of independence that it was boycotted by every human rights organisation in the country and wound up earlier this year.
The second prong is the justice and security bill, which aims to roll out secret courts — known as Closed Material Procedures — across the civil justice system.
It is important to note first that secret courts are not a measure aimed at plugging a gap in national security. The government's own reviewer of terrorism legislation has pointed out that the current system (known as Public Interest Immunity) "does not threaten national security."
Instead, the government would have us believe that these secret courts are about increasing fairness in the justice system. They claim there are cases which can't be settled without them — yet, as a -parliamentary committee has pointed out, there is a "troubling lack of evidence of any actual cases demonstrating the problem which [the Government] asserts to exist".
A brief consideration of how a secret court works is enough to dispel any idea that they could be somehow 'fair'.
First, a minister claims 'national security' is involved in a case (a claim which we know has been used to avoid embarrassment on multiple occasions in the past, from the Arms to Iraq affair in the early 90s to the excesses of the 'War on Terror'). A judge will, however, have little choice but to defer to the minister's judgement, as it is established that it is for the executive to make the call on what constitutes 'national security.'
The case — which could involve anyone from a torture victim to a soldier who has been badly neglected by the government — then moves into a secret court. The government stays in that court, but the other side is thrown out. The government is then able to present its evidence to the court free from effective challenge from the other side, and without the public ever knowing what was said.
It is important here to remember that the central point of the British adversarial justice system is that both sides hear and are able to challenge the evidence used against them. This centuries-old tradition goes out the window with a secret court. If the government says, wrongly, that you were engaged in a certain activity on a certain day, you will be unable to challenge that — in fact, you won't even know what's been said. You will then lose the case without ever knowing why.
This is clearly not fair, and it is not recognisable as justice. Moreover, as has been mentioned, there is no evidence that a change is needed. So the only, depressing conclusion to reach is that this is aimed at avoiding accountability. The state has been embarrassed in the past when its wrongdoing came to light and secret courts would largely put a stop to that — at least through the justice system. In the process, the collateral damage would be a tradition of open and equal justice that is one of Britain's greatest achievements.
It may be at times inconvenient for politicians and officials, but it is essential that the public is able to hold them accountable for their actions through the courts. Secret courts would do enormous damage to that principle and it is therefore essential that they are stopped altogether. Compromises, in the face of such momentous change, are not enough. It now falls to the Commons to defend an open and equal system of justice which ensures that no one, not even the government, is above the law.
Donald Campbell is head of communications at Reprieve. Follow him on Twitter.