Liberty, the cross-party organisation working for fundamental rights and freedoms in the UK, has warned against extending the principle of “secret justice” into ordinary civil cases against the Government.
A new Green Paper on secret evidence proposes that ministers should be able to initiate closed proceedings in civil cases where the Government claims disclosure would compromise national security, put sources at risk or undermine so-called key partnerships.
The proposal follows the Supreme Court ruling in Al Rawi and others v the Security Services in July where the Court refused to adopt a “closed material procedure”.
In that case, the Government tried to argue that the Common Law could enable the intelligence services to use secret evidence to defend claims of their complicity in torture. The Supreme Court rejected outright that attempt to instigate closed proceedings via the backdoor – but now the Government is effectively trying to amend the law and legislate for what it failed to achieve last time.
The Green Paper’s proposals would allow a Government to defend accusations of complicity in torture without revealing information which may be crucial to a fair hearing for the victim and to the public interest in media scrutiny of alleged abuses of power.
Isabella Sankey, Director of Policy for Liberty, said: “The security services seem to think that having to compensate former Guantanamo detainees for failing in their duty to them justifies closing down open civil courts into the future.
“These payouts should encourage the avoidance of complicity in torture, not blatant attempts to halt centuries of British justice."
She concluded: “Further inroads like this will make it even easier for the system to be abused – to prevent embarrassment, not protect national security.”
Liberty argues there are already several mechanisms allowing for the protection of national security – including claims for Public Interest Immunity which can ensure any material truly compromising national security does not enter the public domain. Crucially, where PII applies, neither party to a case can rely on the withheld evidence.