Being in government isn’t just about what you do, it’s how and when you do it. You would think that a general rule of thumb might be for ministers to indulge in a lot of flag waving over things they propose to do and to try and sneak out bad news when something more interesting is going on. But sometimes ministers attempt to slip their own proposals under the radar because they know they are contentious. One such proposal, quietly pushed out last year, is indeed highly contentious: secret courts.
The government wants to expand the use of so-called ‘closed material proceedings’ across the civil justice system. These are cases in which neither claimants nor defendants can be present, cannot know or challenge the evidence against them and must be represented by a special advocate, rather than their own lawyer. This might sound like Orwellian fiction, but no, it's modern day Britain.
Under the plans, ministers would be allowed to hold any civil case behind closed doors if they decide that sensitive material is involved that could damage the public interest and safety. The justice secretary has defended the move claiming the special advocates ensure the citizen gets justice. He neglects to mention that these security-cleared lawyers are not allowed to talk to their client once they have seen the sensitive material, which must make ensuring justice pretty difficult.
He also neglects to mention that most of these special advocates, 57 out of the 69 working in the current system, oppose the measure as a ‘departure from the foundational principle of natural justice’. Writing in the Daily Mail, one argues that the changes are also unjustifiable as there is already a set of rules ensuring sensitive material is not disclosed in the interests of national security.
The reforms are set out in a consultative green paper prompted by the case of Binyam Mohamed, a former Guantanamo Bay prisoner who sought to sue the government for complicity in torture. Ministers tried to conceal documents disclosing his alleged torture, but were overruled by the courts. The government now claims the US has reduced the amount of intelligence information it shares with the UK.
Liberal Democrat peer and former Director of Public Prosecutions, Lord Macdonald, has challenged this claim and added it would be wrong for Britain to undermine important principles of open justice at the behest of foreign spies. He joins high profile Tory MPs David Davies and Richard Shepherd, the Police Federation, Reprieve, the organisation which represented Mr Mohamed and many of the families of the 7/7 bombing victims.
One thing is for sure, secret courts don’t sound as if they belong in a liberal democracy in the 21st Century, but rather in a state more akin to the fictional Nineteen Eighty-Four or the real life North Korea. I would think it plays right into the hands of our adversaries in the ‘war on terror’ to dispense with our fair and transparent justice system in favour of something resembling totalitarianism.
I may be getting confused, it's hard to keep up with pre-election promises and post-election actions, but isn’t this the same government that scrapped identity cards because they failed to do anything to tackle terrorism and organised crime and were a symptom of ‘the substantial erosion of civil liberties' in recent years? I am no security expert, but I am sure there are ways of dealing with threats to society that don’t destabilise that very society.
I suppose I shouldn’t be surprised. This is only the latest assault on the principle of ‘equality before the law’ from the coalition government. The wanton trashing of legal aid is already threatening to create a two-tier justice system, with the rich able to pay for and get justice and the poor left to fend for themselves.
As Nick Cohen wrote in the Observer on Sunday:
‘The argument about legal aid is of a different order to the other debates about cuts to the welfare state. The government is entitled to reduce public expenditure and reduce benefits…but by denying access to justice, it is creating a new class of citizen that cannot challenge its bureaucrats' behaviour….Even a hacked-back state ought to deal with the individual justly. He or she ought to be able to go to the legal system and ask it to ensure that the state obeys its own rules. Each of us should receive fair treatment, however generous or, these days, miserly public provision is’.
Aside from the fundamental iniquity of this, has it not occurred to anyone what the outcome might be? What are those people who cannot get access to justice going to make of a society that, quite rightly, asks that we take on certain responsibilities in return for our rights? If they can’t enforce their rights, why should they take any notice of their responsibilities?
Whatever solutions the legal aid sector comes up with to mitigate the effects of the cuts, it won’t take away from the fact that the state itself has denied certain people access to justice. You can argue all you like whether the London riots last summer were about the alienation of the young or simply their desire to get a free TV and new pair of trainers, but if those at the bottom are made to feel separate and disenfranchised there is likely to be more of the same.
The police obviously agree with me. Today the Metropolitan Police Service has concluded water cannons would be valuable as a ‘national asset’ in a few ‘rare situations’. I bet it has. Chances are the Home Office will concur. But I don’t think threatening people who don’t feel they have any way to enforce their rights is going to solve anything, it just brings us a step closer to looking like a police state.
And now secret courts threaten to put the government above the law, while the rest of us, including the press, are shut out of our own justice system. Ken Clarke states there is no one more concerned about open justice than him, but it doesn’t sound much like open justice to me. We may be way beyond 1984 but Britain it is starting to look more and more like Orwell’s dystopian nightmare.