Secret Hearings and Democracy

The present Coalition government is considering, in its new Justice and Security Bill, a fundamental and undemocratic change to the way in which our justice system is run. The existence of secret hearings has always been controversial. They allow a case to be brought against a defendant where evidence can be relied upon before a judge – although the evidence itself is not disclosed to the defendant or the public. The defendant has a Special Advocate barrister who oversees the process, is party to that evidence and challenges the evidence on the defendant’s behalf. In using these procedures a balance between the national security interest in protecting the security information, and a person’s right to a fair, open and transparent trial under British law must be struck.

This balance has always been tightly policed by independent judges – who have had the unenviable task of assessing the extent to which national security concerns do in fact justify a secret hearing.

Understanding the power to use a secret hearing for a trial requires understanding why those powers were originally introduced. The power to use secret hearings was originally brought in to protect the sources of information from being revealed which were in the national security interest to keep concealed in a climate where terrorism defined the global agenda through the 90s and the early 00s. Over time, the use of this power has broadened into areas that do not touch upon criminal matters. Last year the Supreme Court ruled that this power can be relied upon even in employment tribunals for government organisations to defend themselves against discrimination allegations (Tariq v Home Office, 2011).

However, judges have always been required to strike the balance and decide whether using a secret hearing is necessary in the circumstances. Under the new proposals, government bodies bringing a claim against a defendant will be able to simply say there is a national security interest and will not be required to evidence this claim or make an argument for this claim. The new proposals also do not define what would be a national security interest.

This immediately opens up the door to abuse of executive power. It means that any government could bring a case against a person, or defend itself before a person (say, in a judicial review) before any court in the country, civil or criminal. They would be able to just state that there was a national security interest, and conceal the evidence upon which their case or their defence was based. It could mean that the person would not be able to have even a gist of the material against them and therefore be unable to instruct their barrister to defend themselves against this evidence.

Under the new proposals, it also appears that the intelligence services won’t be required to disclose information to the UK courts even where;

  •           The person needs that information to show their confession was procured by torture as they are defending themselves against a death penalty
  •           The UK government has information that does show he or she was tortured
  •           The UK government was itself involved in the torture (innocently, or otherwise)
  •           Providing the information would have prevented the person requesting the information from being convicted and tortured.

We have pragmatic reasons to be alarmed – those who are responsible for overseeing the process and ensuring that the right balance is struck on behalf of the defendants, the Special Advocates, have written an open letter to the government indicating their opposition to these reforms and stating that these reforms are ‘inherently unfair’. They say, chillingly, that ‘it is perfectly possible (and indeed likely) that there will be cases tried … where the excluded party is told nothing of any significance about the case against him.” Shami Chakrabarti, the Director of Liberty, David Davis, Lady Kennedy QC have all stated that these proposals violate basic principles of the common law.

We do have tensions between government and the judiciary. This tension is healthy. It shows our democracy is working. Any attempt to remove such tension is an attack upon the fundamental principle of democracy which works on the premise that judges, governments, Parliament and the people hold each other to account. Their powers are separate, and because of this no one select body has the opportunity to abuse this power. Where personal liberties are taken away or mitigated for a wider public interest, the government should at least be required to justify their actions.

Several aspects of the Justice and Security Bill run completely contrary to democracy and should be opposed, not simply by those who have an interest in a fair and transparent justice system – but by anybody who considers themselves a democrat. Democracy is about accountability and about the protection of people’s fundamental human liberties. If governments are not accountable to the public and to the judges for interference with individual rights (as is the proposed situation here), then we find ourselves on a slippery slope to a Kafkaesque state where the interests of justice and the interests of government are aligned. For these reasons, all political parties who value British democracy, and especially those who believe in fairness and equality, should do all they can to oppose these proposals.

This blog post was also posted on Shifting Grounds – http://shiftinggrounds.org/2012/07/stop-this-kafkaesque-bill/

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