The Guardian on Saturday reported on the criticism leveled by the Labour Party at the government’s proposals to extend the mandate of secret trials to civil courts. In a letter to the leader of the Liberal Democrats, Nick Clegg, the shadow justice secretary Sadiq Khan described the coalition’s approach to the issue of security as ‘misguided,’ and ‘positively misleading’ arguing of the proposals that “Ministers retain the power on what is kept secret”.
From the Guardian:
“The former justice secretary Ken Clarke has been accused by Labour of giving a "positively misleading" impression that judges will have the key say in deciding whether new secret courts will be convened to hear sensitive intelligence material.
“In a sign that the plans are heading for a rocky parliamentary ride this autumn, the shadow justice secretary, Sadiq Khan, has written to Nick Clegg to say Labour cannot support the plans unless ministers change their "misguided" approach. Khan is intervening days before the Lib Dems debate a motion at their conference in Brighton calling for a watering down of the plans to set up a new generation of secret courts.
After widespread political and public pressure, the original proposals for secret trials were amended in a way which arguably prevents abuse of the powers. Although many of the core features remain, Clarke, who is still overseeing the draft bill, conceded that judges rather than ministers would decide when a trial would be held in secret. However, Khan claims that “one of Clegg's main demands – that judges, not ministers will decide when the special courts are invoked – has not been met. In his letter, Khan writes: "This is not the judge-led process that Ken Clarke has claimed. In fact, I would go so far as to say that it is positively misleading to claim it is judge-led. Ministers retain the power on what is kept secret – meaning the usual checks and balances that provide proper scrutiny of government action will not be present."
“The proposals are designed to ensure that intelligence material that cannot currently be heard in court can be admitted as evidence by restricting its circulation. The intelligence would be heard by a judge but not by claimants or their lawyers.
“Khan, who is understood to have been briefed by Clarke on privy council terms, calls on Clegg to give serious consideration to alternatives to the "close material procedures". He writes: "It is simply wrong to claim, as justice ministers do, that if CMPs are not introduced, intelligence officers would be forced to give evidence in public courts. Such claims totally ignore how our current system has different ways of coping with these kinds of circumstances. Rather than a misguided rush to legislation, the government would have been better advised to hold a proper debate about all the options available."
It was recently revealed that the proposals for ‘closed material procedures’ as they are often described were drafted as a direct result of the government’s embarrassment resulting from allegations of British involvement in torture. This includes the case of Binyam Mohamed, as well as more recently legal action brought against the government by two Libyan rebel leaders in relation to allegations of British complicity in their rendition and subsequent torture. In the case of Binyam and other former Guantanamo detainees, the government was forced to disclose intelligence from the US which it had promised not to reveal. At the time when the original proposals were revealed, the government stated that ‘We have a growing problem in this country where individuals are alleging Government wrongdoing but the courts do not have the tools they need to get to the bottom of the matter.
“‘The reason for this is that the evidence on which the case rests is either intelligence material given to us by our allies – which we have promised not to reveal – or it is material which could reveal the identity of sources, or damage our ability to keep the public safe.
The issue of disclosure of documents concerning the possible misconduct of public servants was also raised by the chair of the all party group on extraordinary rendition, Andrew Tyrie, who has sought information under an FOI request. As the UN’s Special Rapporteur on human rights and counter-terrorism puts it,
"Refusing disclosure of key information about the alleged participation of UK officials in extraordinary rendition runs the risk of promoting impunity for state officials of the UK who may have been party to grave human rights violations,"
"Transparency is key not only to bring to justice those officials who may have participated in crimes of this kind but also in dispelling unjustified suspicions. The unjustified maintenance of secrecy, on dubious legal grounds, only delays efforts at establishing the truth."
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