Imagine a court system in which the person bringing the case is excluded from the proceedings. They are not allowed in part of the hearing, nor to find out what was argued. Neither is their legal team. Instead they are represented by a government-appointed lawyer. The court’s judgement may be known to the public and the person bringing the case, but not all the reasons for which it came to its conclusion.
This is the system that was approved by the British Parliament on 26 March as it passed the Justice and Security Bill. This system is specifically intended to be used in cases concerning the gravest allegations of government complicity in human rights abuses such as torture, rendition (abduction) and unlawful detention.
The government has argued that under the present system they have often been unable to defend themselves. This, they say, is because the evidence they would rely upon is classified and cannot be put before an open court as it could put the security agencies at risk. It is also argued that some of the evidence has been supplied on a confidential basis by other countries, and so if it were disclosed there could be repercussions on international intelligence sharing.
The system that will now be introduced is known as a ‘closed material procedure’. It allows courts to enter a ‘closed session’ for part of a hearing, in which they will hear arguments about national security evidence without all the parties to the proceedings being present. In effect, where the government is accused of breaking the law, through actions such as complicity in rendition and torture, it will be able to defend itself by relying upon classified material, while every other party is excluded from the court-room.
Those who have been excluded are to be represented by a ‘special advocate’ – a security cleared lawyer who is appointed on their behalf. In the limited instances in which closed material procedures are already in place, communication between special advocates and the people they have to try to represent is severely restricted at best, or non-existent at worst. This is so that none of the classified material is revealed. In practice, such procedures mean that the special advocate is unable to take instructions from the person they are supposedly representing. In fact, the special advocates have unanimously stated that closed material proceedings are ‘fundamentally unfair.’
At the end of proceedings, non-government parties may win or lose their case without knowing why, as the court’s reasoning will likely be classified. Such closed proceedings are a ‘departure from the foundational principle of natural justice,’ as the special advocates have so aptly put it.
The British government has reached out of court settlements in two notable claims over recent years: A group of former Guantanamo detainees, who had alleged British complicity in their detention and torture, reached a settlement in 2010. The government now claims this settlement was reached because it could not defend itself in open court using confidential materials. Yet at least one of the detainees, Binyam Mohamed, already had a Court of Appeal judgement accepting that ‘UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of US authorities.’
Further, at the time the case was settled the government was still arguing in preliminary proceedings that they should be allowed to use closed material proceedings before the court. They were appealing to the Supreme Court precisely on this ground, yet they settled before the court issued its judgment. As such, even by their own argument, they could not have been sure that they would have been unable to defend themselves at the time of settlement.
So it seems doubtful that undisclosable evidenced was the reason government lawyers feared they would lose the case and thus chose to settle.
Most recently, the British government settled a claim by Libyan national Sami al-Saadi that MI6 were involved in rendering him and his family, including his young children, to Libya while it was under the dictatorship of Colonel Gadhafi. His accusation was corroborated by correspondence found by Human Rights Watch between the Libyan intelligence agency and the CIA. It stated that ‘we are… aware that your service had been cooperating with the British to effect [Sami al Saadi’s] removal to Tripoli’.
We cannot know what evidence the British government would present to a court to defend itself. Even so, it seems nonsensical to argue that being able to present classified evidence would have won these cases for the government while there is compelling evidence it has been complicit in severe wrongdoing.
The Justice and Security Act will create a significant impediment for those claiming British complicity in the most horrendous human rights violations. Closed material procedures jeopardize the claimant’s right to justice in the name of so called security.