Centuries of open justice threatened by secret courts

The Independent
Andy McSmith and Kim Sengupta

Government rewrites judicial principles after lobbying by CIA

Secret justice looks set to be a regular feature of British courts and tribunals when the intelligence services want to protect their sources of information.

Civil courts, immigration panels and even coroner's inquests would go into secret session if the Government rules that hearing evidence in public could be a threat to national security.

The proposals, which run counter to a centuries-old British tradition of open justice, were introduced to a sparsely attended House of Commons yesterday by the Justice Secretary, Ken Clarke – and met almost no opposition. The planned changes to the British justice system follow lobbying of the Government by the CIA.

Civil rights groups warned a serious potential threat to individual liberty lurked behind the all-party consensus.

Mr Clarke is seeking to protect the Government from a repeat of a fiasco which has cost tens of millions of pounds and led to a breakdown in co-operation between British intelligence and an enraged CIA.

The best-known case involved Binyam Mohamed, a British resident who was held in Guantanamo Bay for five years, and started a claim for damages from the UK Government, which he accused of complicity in torture.

The Court of Appeal released a summary of CIA intelligence which supported Mr Mohamed's claim that British intelligence officers knew about the torture of suspected terrorists.

The CIA was furious and halted the flow of information from its headquarters in Langley, Virginia, and other US agencies apart from in the most serious cases. MI6 and the Foreign Office also received complaints from a number of other allied states anxious that information provided on a confidential basis would leak into the public domain.

Faced with irate colleagues at Langley, the British Government paid out to 16 terrorist suspects, to prevent further damage to US-UK relations. Yesterday, Mr Clarke let slip that the cases had already cost around £20m. Another 30 are in prospect because, he told MPs, "it is becoming fashionable" to challenge the Government in court.

Officials have privately complained that they cannot defend these cases without compromising sensitive intelligence, which means suspected terrorists have been able to use the civil courts as a "cashpoint".

If Mr Clarke's proposals are agreed, the power of the courts to order the intelligence services to disclose sensitive material will be curtailed. The Government is also planning to pass a law giving itself much more latitude to use what are called "closed material proceedings" in civil court cases and immigration tribunals, meaning the people at the centre of such cases would not be allowed to hear any evidence that MI5 or MI6 did not want them to hear. The material would, however, be examined by special advocates with security clearance.

There is also the prospect of grieving relatives being security vetted before they are allowed into inquests in cases which might involve sensitive material, such as the death of a terrorist suspect. If they refuse to be vetted, they would be barred.

Mr Clarke went out of his way to avoid a clash with Labour by reminding them that he was dealing with a problem they had to face in government, and emphasising that his Green Paper was "very green".

Mr Clarke told MPs: "The Government is clear that under the current system, justice is not being served and our national security is being put at risk. For justice to be done and the rule of law to be upheld, courts should be able to consider all the facts of the case. At the moment, we are not always getting at the truth because some evidence is too sensitive to disclose in open court."