Open justice let the light in on rendition; secret rulings will prevent us learning those lessonsby Andrew Tyrie / February 10, 2017 / Leave a comment
Published in March 2017 issue of Prospect Magazine
In January, the Supreme Court ruled that a Libyan dissident, Abdel Hakim Belhaj, and his wife can sue the British state over their abduction and transfer to Colonel Muammar Gaddafi’s prisons. The defendants include the Foreign Office, Home Office, MI6, MI5, and Jack Straw.
This is a victory for transparency and rule of law. It shows that the British courts are prepared to hold those at the highest levels to account for “extraordinary rendition”—the programme of kidnap and torture launched by the US after 9/11, and facilitated by Britain.
The case will be one of the biggest tests yet for the new rules on secret hearings. The Justice and Security Act of 2013 provides that in civil cases like this one, the courts can now hear evidence withheld from one party—and their lawyers—on national security grounds. As a result, Mr. Belhaj and his wife could be barred from most of the trial, and then lose the case without being able to challenge—or even hear—the evidence used against them. And they might only ever see a redacted version of the judgment, while the full text remained secret. This does not sound much like British justice.
In theory, a “special advocate” should keep the trial fair. These are security-vetted lawyers who see the secret evidence, and represent the interests of the excluded parties. The advocate can dispute the relevance of the evidence, and challenge the Government’s contention that its disclosure would harm the national interest.
But the challenges facing special advocates in this work are enormous. In practice, they can do very little to combat the Government’s arguments, unless they find the sensitive information publicly cited elsewhere. They cannot call on independent experts to contest the Government’s claims. And they cannot talk to their client once they have seen the secret material, unless they get permission from the court.
This is why most special advocates opposed the Justice and Security Act. Fifty-seven of the 69 advocates signed a statement criticising it. The advocates themselves said that these views represented an “overwhelming consensus”. They called the reforms “fundamentally unfair” and “a departure from the foundational principle of natural justice that all parties are entitled to see and challenge all the evidence relied upon before the court”. Even though some might have thought that the advocates would have an interest in the extension of the procedures, they argued that courts run this way could neither provide, nor be seen to provide, justice.
Faced with the new rules, another Libyan who has made similar allegations against the British Government—Sami al-Saadi—decided to settle his case. As he put it, “I went through a secret trial once before, in Gaddafi’s Libya. In many ways, it was as bad as the torture. It is not an experience I care to repeat.”
I had some experience of secret hearings—in a very different context—five years ago, when I appealed against the Government’s denial of my Freedom of Information request on the UK’s role in other rendition cases. Part of the hearing was held in closed court, due to the sensitivity of the material. The judgment went against me. I was left with the impression that evidence given in secret session, which neither I nor my counsel was able to hear, had proved decisive.
Parts of the Belhaj trial may, no doubt, be highly sensitive. But there are established, and usually better, ways to handle this. For decades, the courts have been able to decide on a document-by-document basis whether the public interest is best served by disclosure or concealment. If disclosure would damage national security more than concealment damages justice, the document is withheld. Neither side can use it. This “Public Interest Immunity” test can usually keep the trial fair, while safeguarding the most sensitive information.
As the Belhaj trial begins, the Government should demonstrate that it will restrict the use of its new powers to an absolute minimum. Where a piece of evidence risks damaging the public interest, Ministers can and should first apply to withhold it from the judge and the public altogether by using a certificate of Public Interest Immunity. This is preferable to shutting the public out of the trial, and turning Mr Belhaj out of court.
Everyone understands the need to protect the security services, but secret hearings are not the answer. This is not just my view. It is the view of many of those who work in this field. Before the new Act was passed, a Supreme Court judge rebuffed the Government’s attempts to establish closed proceedings in another rendition case. He argued: “To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead.”
The great claim made for secret courts before the legislation was that the intelligence services would become more accountable, instead of being forced to settle out of court to protect delicate information. The then-head of MI5 spoke in favour of the proposals in 2012: “We do not fear accountability”, he said. “At present our ability to account for our actions in the courts is constrained by the fact that sensitive national security related material relevant to civil proceedings can only be considered in open court.”
But even if closed proceedings are used with scrupulous fairness, it is hard for anyone else to feel confident about this. The Government’s own impact assessment, before the bill was passed, noted the risk of a loss of confidence in court processes.
If the new rules had been in place a few years ago, the public wouldn’t know much of what is now established about the UK’s role in rendition. The distrust would only have grown. The public need strong and effective security services—they do crucial work in difficult circumstances. And the public need to have confidence in them. Maximum reasonable disclosure—subject to a national security test—is the best, perhaps the only, route to restore this confidence.
President Trump may restart the rendition programme. He has said that he wants to use torture as an instrument of policy. Moderate voices in the administration might restrain him. But anyone who thought that the UK’s role in rendition after 9/11 could safely be allowed to fade into the past has been given a sharp reality check.
The full truth on rendition is now more urgently needed than ever. I have been pressing for it for almost 12 years. Most people agree that the UK’s facilitation of torture after 9/11 was a dreadful mistake, not only surrendering the moral high ground, but probably counterproductive for the country’s security. In its efforts to entrench a “special relationship” with the US, it is essential that the Government avoids being dragged back into this.
The Prime Minister has made some welcome statements. First, she assured me in the Commons that Britain would not sanction torture. Then, as she flew to meet President Trump, she referred journalists to “very clear” rules issued to British officials—known as the Consolidated Guidance. These state that the UK will not share intelligence where there is a serious risk of torture.
The Prime Minister’s words are encouraging. The UK has a strong interest in a close relationship with the US. Its interest in justice cannot be permitted to become a casualty.
Sunlight is the best disinfectant. This case has already dragged on for five years. The truth of these grave allegations against our intelligence services needs to be established one way or the other, and it needs to be established as openly as possible. Any failure to do so will undermine public trust and sap the morale of those upon whom we depend for our security.
Andrew Tyrie is Conservative MP for Chichester. He is the founder and chairman of the All Party Parliamentary Group on Extraordinary Rendition