UK: gagging courts & undermining the rule of law

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Secret courts proposed for the UK

17th November, 2012: a letter from Lucy Scott-Moncrieff, president of the Law Society of England and Wales, and Michael Todd QC, chairman of the Bar Council, has been sent to Kenneth Clarke and Lord Wallace of Tankerness, who are responsible for seeing the Justice and Security Bill through Parliament. It states: "[Close Material Procedures] depart from an essential principle of natural justice … that all parties are entitled to see and challenge all of the evidence relied upon before the court, and to combat that evidence by calling evidence of their own. "In addition, [they] also undermine the principle that public justice should be dispensed in public and will weaken fair trial guarantees and the principle of equality of arms. These are both essential concepts of the rule of law. "Secret trials and non-disclosure of evidence are potential characteristics of repressive regimes and undemocratic societies. "Whilst HM government rightly takes a strong stance in respect of the importance of the rule of law globally, we fear that if passed, this bill will adversely affect the UK's international reputation for fair justice." The letter continues: "It will be impossible for lawyers to advise their clients in their best interests if they are not privy to the information being used against them in court and are able to discuss this with those clients. Again, we believe this breaches a fundamental right of defendants in a just society. "We believe that the plans for secret courts erode core principles of our civil justice system and will fatally undermine the courtroom as an independent and objective forum in which allegations of wrongdoing can be fairly tested and where the government and others can be transparently held to account."


Liberty and Reprieve have produced their "Second Reading briefing on the Justice and Security Bill in the House of Lords", in which they state: The Justice and Security Bill is rotten to the core: it fatally undermines the Rule of Law, eroding bedrock principles of open justice and equality before the law and weakening Government accountability. It will prevent serious state abuses – such as torture – from coming to light; give Ministers the power to skew court proceedings heavily in their favour; and severely damage public access to justice over Government wrongdoing. Liberty and Reprieve urge the House of Lords to vote against giving this Bill (which did not appear in any election manifesto nor the Coalition Programme for Government) a Second Reading. If passed, this Bill will make unprecedented changes to the civil justice system: 1. It will allow for ‘secret courts’ – or Closed Material Procedures (CMP) – to be extended to the ordinary civil law in any case where ministers claim ‘national security’ is involved. CMP involves a closed court with the litigant, their lawyers, the public and the press excluded and the Government given licence to present a one sided case to a judge. This is a fatal blow to the British system of justice: an adversarial system in which evidence is properly challenged and tested by both sides. 2. It will also strip courts of the power to hear ‘Norwich Pharmacal’ applications which seek the disclosure of information held by UK authorities on serious human rights abuses by other states, in which Britain has been involved.

Also see these Key Justice and Security Bill resources provided courtesy of UK Human Rights Blog

21st March, 2013 British Justice Takes a Huge Step Backwards

Even before the Justice and Security Bill is passed by Parliament. the Supreme Court has gone into secret session for the first time ever to hear sensitive intelligence about a Tehran bank accused of participating in Iran's nuclear weapons programme. The decision to hold what is known as a "closed material procedure" (CMP) – in which claimants are prevented from discovering the security evidence against them – was made after lawyers for the Treasury urged the justices to read a secret judgement from a lower court. This is the first secret judgement or the hearing of secret evidence since CMP procedures began in specialist immigration and security tribunals some 10 years ago. Lord Neuberger, its president, has said the Supreme Court occupies a particular place in the constitution "where all judgements should be open and be available to be seen". Regretting the necessity of going into closed session, Neuberger said the Treasury had argued that without reading the secret judgement of Mr Justice Mitting [in a lower court] "we cannot be wholly confident of disposing of the bank's appeal justly without considering the closed judgement". He added: "We are very dubious indeed whether this will turn out to be the case … We have reluctantly decided that we cannot consider the closed judgement without having a closed hearing, as otherwise the contents of the closed judgement would be revealed to the public, including Bank Mellat and its representatives. "This is a decision which is reached with great reluctance by all members of the court; indeed it is a majority decision. No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented at the hearing and not even knowing what is said either at the hearing or in a judgement in so far as it discusses what was said or produced by way of evidence at the closed hearing. "Nonetheless, as parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a judge …"

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