Secret courts - Closed Material Procedures
The Supreme Court in Parliament Square is open to the press and the public - for now
LORD Denning, the Master of the Rolls and Appeals Court judge best known for his bold judgements on common law from the 1960s to the 1990s, once said, "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him". Now our fundamental right to know evidence against us is threatened in the shape of The Justice and Security Act (JSA).
Introduced by the coalition government last year, the JSA 2013 allows the use of "secret courts" in cases which the Government deem threatening to national security. The NUJ was a key campaigning opponent of this legislation and, in collaboration with the Open Justice Project, recently hosted a meeting on "The Justice and Security Act's secret courts - what journalists need to know", attended by over a hundred NUJ members and chaired by Michelle Stanistreet, the NUJ's General Secretary.
Eric Metcalfe, Director of Human Rights Policy with the group Justice, provided the historical context for the introduction of the law. Secret courts are not new: introduced 17 years ago for use in immigration hearings, Closed Material Procedures (CMP) are now used in a wide range of cases including deportations hearings and employment tribunals.
However, when former Guantanamo Bay detainees sued the British Government for its complicity in rendition and torture and the Supreme Court upheld the request for materials to be disclosed, the Government responded by enacting an add-on whereby in any civil case, any party can request the use of a secret court if disclosure would damage "national security". (A recent NUJ meeting included a discussion on the definition of "national security" and how it has mutated into meaning the maintenance of the status quo.)
CMP are insulated from the press, the public and, crucially, even the accused do not get to hear the secret evidence against them. Says Eric, "The idea of natural justice is at the heart of the right to a fair trial, and strikes at the heart of this concept... the parties should be on an equal footing".
Being able to present evidence without the other side having the chance to refute it obviously gives Government the potential to present a very one-sided version of events. Shazia Khan, partner at law firm Bindmans spoke of Client X, a former immigration officer, who was sacked by the Home Office six years ago due to alleged breaches of national security. However, due to his employment tribunal being held as CMP, he has never been told the exact nature of these alleged misdemeanours and Shazia described as absurd the imbalance of power between the parties in litigation.
David Rose, special investigations journalist at the Mail on Sunday, said that this extraordinary closing-down of the legal system comes at the same time as we have disclosure of state surveillance programmes. Added David, "As a journalist these are very dark times for investigations of wrongdoing by state actors. The JSA is part of a raft of developments in which state power is not only increasing but is perhaps making it impossible to hold it to account."
Indeed, Isabella Stankey, Policy Director at Liberty agreed, and described "The eight months that we dealt with the paper making its way through parliament" as "a low moment of my career... The introduction of the JSA was motivated wholly by the war on terror and the litigation that came out of the malpractice of the security services" Isabella says.
She added that lobbying efforts against it were continually rebuffed by changing sands of the government. However, Isabelle noted there is reason to believe that as more unjust cases come to light, pressure will persuade parliament to revisit the legislation: "real change can be achieved and a lot of that is down to the continuing concerted efforts of journalists who care about holding the state to account.".