EXPOSING HIDDEN COURTS

RMT helpline 0800 376 3706 :: january 2013 :: RMTnews 8 The Tory/Lib Dem coalition government, through the Justice and Security Bill currently before Parliament, intends to introduce ‘hidden courts’ to a wide range of ordinary civil actions heard before our courts. The intention is to introduce these secret courts through what is known as Closed Material Procedures (CMP). What does this mean for us? Effectively government ministers will be given a huge advantage in civil cases brought against government departments. If CMP is passed into law it will mean that government can present its case to a judge in a closed court, with the government’s litigation opponent excluded from the court, with the litigant’s lawyers excluded from the court and with the press and public excluded from the court. It is a Spooks Charter that will enable the government to present their case to a judge without the opponent knowing anything about it. The proposals have met with significant opposition. A leading human rights barrister who regularly appears on behalf of the government described the draft Bill as “unbalanced, unfair and unnecessary”. NGOs such as Liberty (National Council for Civil Liberties) and Reprieve have spoken out strongly against the Bill. Even the Liberal Democrats in their conference passed a motion opposing the Bill. If passed into law the Justice and Security Bill will place the government in a significantly advantageous position in any civil litigation. The maxim “be thou ever so high the law is above you” would be swept away. Government ministers would sit above the law and decide what evidence they want to put in secret to a judge and to the absolute exclusion of the other party to the litigation. Although the UK does not have a written constitution it does have the bedrock of a common law system. Our legal system is firmly founded on principles of fairness based on the rule of law and due process. Such process is in turn based on principles of an independent and impartial judiciary and of equality of arms before the courts. Of fundamental importance to our legal system is the right to know the case against you. If the evidence against you is kept secret with only the judge seeing it and not you how can you possibly defend yourself or present your full case? Evidence placed in secret before a judge is tainted. It is untested, unchallenged by cross- examination, unquestioned by experts. Our courts are held up to the world as beacons of fair play where transparency and open justice is not only done but is seen to be done. Our judges give open judgments with reasons which can be challenged on appeal if appropriate. One-sided justice carried out behind closed doors smacks of the darkest practices of the most repressive jurisdictions on our planet. If the UK allows such practices to happen in our own courts then how can we criticise those repressive regimes that also practice ‘secret justice’? It is Kafkaesque and will lower the standing of our legal system in the eyes of open jurisdictions and will be music to the ears of repressive systems. We must also remember why this new proposed law, which will radically change the way we conduct civil litigation, came about in the first place. It is the security services response to the embarrassing litigation the government has faced arising out of challenges to government complicity in extraordinary rendition, torture and unlawful indefinite detention without trial after the events of September 2001. It comes about as litigants find out more about what happened in Guantanamo Bay, what happened in Iraq and what happened globally in the so- called War on Terror. Much of it is shocking and a cause of real political embarrassment. In place of properly examining the events of the last decade and learning lessons from them this proposed law hides shameful secrets in the dark corners where they will then remain undetected and unresolved. Governments will not be held to account and their wrongdoings will be concealed. Make no mistake; the range of cases to be affected is much wider than ‘terror’ cases. Actions against the police, against the armed forces and indeed against public authorities would all fall under the CMP ambit. Mission creep is a real concern. We do not need this radical departure from the fundamental principle of a right to a fair trial. There is already in place a tried and tested system of Public Immunity Interest Certificates (PII). Currently if a Minister does not want security sensitive material relating to matters of EXPOSING HIDDEN COURTS RMT panel solicitor Martin Howe urges RMT members to contact their MP and oppose reactionary Con Dem plans for secret courts