Open justice let the light in on rendition; secret rulings will prevent us learning those lessonsby Andrew Tyrie / February 10, 2017 / Leave a comment
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…