Analysis: A question of secret courts


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The headlines on the Justice and Security Bill suggest a massive government climb-down on secrecy in inquests. But the fact is that the core purpose of this very controversial legislation remains: to protect national security information at all costs.

Binyam Mohamed Binyam Mohamed: The case that started it all

So let's take a few steps back from lofty legal talk of open justice and look at practical examples of what this is all about.

The key aim of the bill is to allow the courts to close their doors more frequently when they are dealing with cases involving national security.

The easiest way to understand that is to think about cases where someone is alleging that MI5 or MI6 are guilty of, or complicit in, wrongdoing.

Binyam Mohamed was detained in the wake of the US-led invasion of Afghanistan. Pakistani interrogators first beat him and then the US organised his rendition to Morocco. He was tortured and, at one point, they took a scalpel to his genitals.

He ended up in Guantanamo Bay. His British lawyers fought a long-battle to prove that London had some indication of his treatment before he was taken to Morocco.

They argued that information helped prove that any confession he had made was worthless, because people will say anything to stop the pain. That is why international law bans torture.

Ken Clarke: Bill "is less than perfect but the alternative is silence"

Now, Binyam Mohammed won his case and we know, in seven highly sensitive paragraphs, what Washington told London.

The question at the heart of the bill is whether that kind of national security information can ever be made public?

The government's answer is no - and it wants to use a "Closed Material Procedure" (CMP) to protect the information.

CMP was created in the late 1990s and is a key feature in terror deportation cases like that of radical Jordanian cleric Abu Qatada.

It is also fundamental to court cases where terrorism suspects challenge restrictions on their liberty, known as T-Pims (the system that used to be called Control Orders).

Special Advocates

The suspect hears part of the case against them - but not all of it. A point comes when they have to leave the court, the doors are locked and government lawyers reveal the "closed" case - the full Security Service assessment of the danger posed by that individual. For example, MI5 may have intelligence that the individual was planning to join a terrorism training camp in Pakistan.

Start Quote

To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead”

End Quote Lord Kerr, Supreme Court Justice

The Security Service may not want that information in the public domain because it either gives clues to how the person is being monitored or reveals the identity of an informant. The intelligence could also be a tip-off from a foreign agency.

A security-vetted lawyer - known as a Special Advocate - acts for the suspect or deportee, but cannot talk to them once they have had read the secret case. Now, critics say that if the Special Advocate cannot ask the suspect to respond to the allegation that he was planning to attend a camp, then the lawyer cannot properly challenge the govenrment's case.

And that's why many lawyers say the system is manifestly unfair, even though the European Court of Human Rights has ruled that it isn't.

Government accused

The government wants to extend the system into other parts of civil law, such as damages claims or "judicial review" cases, where ministers or agencies are the accused. It won't be used in criminal trials - but ministers say they need CMP to defend themselves. Reading University has compiled a comprehensive list of cases that might be affected by more CMP.

Closed material procedures

  • Created 1997 for national security deportations
  • Also used in T-Pim/Control Order cases
  • Have appeared in an Employment Tribunals and in Parole Board challenges
  • Cannot currently be used in citizenship cases

At present, when someone sues the government, ministers must account for their actions in open court. If ministers want to protect a sensitive document, they can seek use a procedure that withdraws that evidence from the case so neither side can rely on it.

Under the new system, where a case involves national security, part of the defence would be under the Closed Material Procedure.

When former Guantanamo Bay detainees sued the UK, accusing security and intelligence services of being complicit in American wrongdoing, they demanded disclosure of government papers which they said would prove their case.

They never saw all the material because the government paid them millions to drop the claims. Ministers were determined at whatever cost to prevent sensitive techniques, sources and intelligence from being made public.

But ministers felt that they had not been able to defend themselves in this case because the Closed Material Procedure could not be used.

Critics say this is nonsense - and they paid out to avoid international embarrassment.

But under the new system there would be no need for a pay-out because the government could try to defend itself behind closed doors. Whoever won, the claimant and the public would see a public version of the judgement - but never know the full reasons for the outcome.

Critics say this erodes the fundamental principle that both sides are equal before the law. The practical effect, they say, is that alleged wrongdoing would go unexposed.

Sapna Malik of law firm Leigh Day and Co has been involved in some of the key cases and is preparing the forthcoming legal action over alleged Libyan renditions.

She says: "Under the current system, if it is believed that material will harm national security, it is either withheld from the proceedings entirely or procedures are put in place to protect the most sensitive parts, from redacting documents to witnesses giving their evidence anonymously."

Lawyers like Sapna Malik are not lone voices. The Supreme Court threw out an attempt by the government to use CMP in the Guantanamo Bay compensation case.

And the Special Advocates don't like the system either. They told the Ministry of Justice that it's just not true to say that the system is fair because they are often confronted with security assessments which they cannot properly check out.

The security establishment sees it differently because officials believe that the pressure to reveal material means the government cannot defend itself, even if an allegation is flimsy.

And so, if it cannot have closed courts, officials would rather ministers write cheques to claimants than give away the techniques vital to the work of MI5 and co.

Underlining this is a bigger question. If a society accepts that it needs secret agencies doing secret work on behalf of citizens, does that logically mean the secrecy can never end?

Nowhere is this principle more sensitive than when it comes to information given to the UK by foreign powers - and in particular the US. The exchange of information between London and Washington is deep and British officials fear Washington will be reluctant to share as much if there is a chance of the material being made public.

Nobody is really suggesting that the Americans would not alert the UK to a bomb on a train. But if dirty linen is washed in public, then the flow of other information that helps national security might slow down.

Dominic Casciani Article written by Dominic Casciani Dominic Casciani Home affairs correspondent

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  • rate this

    Comment number 62.

    What is the point of a trial where the defendant cannot defend? You may as well skip the trial and go straught to judgment

  • rate this

    Comment number 61.

    A meaningless sop to public opinion. Leaving the decision to Judges instead of politicians will not stop secret trials.
    Judges have always been ready to do what ministers want when the magic words 'national security' are invoked.

  • rate this

    Comment number 60.

    In a democracy there should be no secrets from the electors.

    National security was been created to delude the public and add all the dubious practices carried out by its henchmen. All supposedly on our behalf.

  • rate this

    Comment number 59.

    This kind of policies are worse than terrorism itself as they preemptively scare people whose chances of falling victims are rather slim.

    You should be far more afraid of crossing the road or being in a car

    Even in Israel you have far far more chance of being a traffic accident victim

  • rate this

    Comment number 58.

    "The power of the Executive to cast a man into prison without "formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist."
    Winston Churchill. 21st Nov. 1943

    The building blocks of a totalitarian society

    Coalition "Liberals" please take note

  • rate this

    Comment number 57.

    "The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist."
    Winston Churchill. 21st Nov. 1943.


  • rate this

    Comment number 56.

    "At all costs"

    I wonder how they actually mean this. If terrorism is a threat to "our way of life" [sic], then surely we should stick with our democratic values and the respect for human rights. Otherwise we are in danger of becoming who we fight.

    This kind of policies are worse than terrorism itself as they preemptively scare people whose chances of falling victims are rather slim.

  • rate this

    Comment number 55.

    51. fuzzy
    Those willing to compromise openness for security end up with neither.
    I completely agree!

  • rate this

    Comment number 54.

    Secret, it's what the UK has been about for centuries! I wonder if these curtains of secrecy were for a moment revealed, just what are they really hidding? Those entrusted with oversight are themselves part of the bigger picture that has been designed to keep the truth from being known to the public...Establishment at its best.....

  • rate this

    Comment number 53.

    @ #14.
    What's that old maxim: if you've done nothing wrong, you've got nothing to hide?

    Certainly explains why governments want to hide so much from us.

  • rate this

    Comment number 52.

    "And that's why many lawyers say the system is manifestly unfair, even though the European Court of Human Rights has ruled that it isn't."
    Be interesting to discover when the ECHR made the ruling - given that the president of the ECHR is currently British. For those not in the know, British governments have ways and means of getting their own way, one way or another.

  • rate this

    Comment number 51.

    Those willing to compromise openness for security end up with neither.

  • rate this

    Comment number 50.

    Secret service overseas is government sponsorship of overseas crime. We should use sanctions against countries who accommodate threats and don't credibly cooperate in undercover investigations. The reason we don't is because sanctions against the worst offending countries would cause financial hurt to powerful "friends and supporters" of Britain, some of whom, to be fair, may actually be British.

  • rate this

    Comment number 49.

    What I witness is Mr Hague seemingly procrastinate a difference in the value of a child's life! Depending on the criteria of;

    1/ A "justified" casualty of a smart bomb on Gaddafi's compound / A child in a Afghanistan wedding party killed by a NATO air strike


    2/ Some "apparent" act of state sponsored terrorism backed by a paid off mass media

    Where R Robin Cooks words when you need them

  • rate this

    Comment number 48.

    National Security? Hmm, let's think. What if an unelected religious org. decided to conceal parts of its operations because it was in their interests to do so and to do otherwise might threaten them, once the wider public found out about highly questionable practices.

    Quite rightly, we'd be up in arms, not least because of the moral transgression. Why should it be different for elected gov'ts?

  • rate this

    Comment number 47.

    I am sorry to hear you've had 2 direct experiences of mass terrorism, but National Security is not the bottom line. If govt wants to lock me or anyone else up & say it's for reasons of national security, it should have to prove guilt beyond reasonable doubt in a court of law for all the world to see. Maybe if I experienced terrorism first hand, my opinion on this would change, but I hope not.

  • rate this

    Comment number 46.

    What a dilema - do we believe the defendant or our spies? When defence councel see the secret evidence, can they reject it or do they inform their client that he/she be guilty? It would be foolhardy to risk the intellegence service being exposed. Maybe this is the best system we can come up with - for the time being.

  • rate this

    Comment number 45.


    So, you have admitted to being directly involved with 2 acts of mass terrorism. You should be tried without hearing any evidence against you immediately. Off to guantanamo with you.

  • rate this

    Comment number 44.

    43. Shambles: National Security is the absolute unequivocal bottom line.

    No, eventually our society would become so constrained and corrupted that it is no longer worth protecting. Then we will have lost and guess who would have succeeded in destroying the liberal democracy that we used to enjoy?

    The price of our democracy may be the odd terror incident (and death of relatives or ourselves).

  • rate this

    Comment number 43.

    National Security is the absolute unequivocal bottom line. There must be methods of ensuring the maintenance National Security at the cost of all else. I have two direct personal experiences of mass terrorism; and any legal measures, whether in public or in camera should be available to subvert any future possible risk..


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