Fighting secrecy in court

posted on June 11, 2009 | in Category International | PermaLink

by Afua Hirsch Source: The Guardian UK URL: [link] Date: June 10, 2009 A judgment condemning the use of special advocates in imposing control orders is another blow to an unfair system

Welcome to a new phase in the battle over counter-terrorism laws between parliament and the courts. Today's unanimous condemnation of the use of special advocates in imposing control orders by the House of Lords came as quite a surprise – overturning previous decisions upholding the system by the high court and the court of appeal. There have been judicial blows to this system in the past; including a House of Lords decision in October 2007 which ruled that the special advocate system did not provide sufficient safeguards. But the law lords disagreed wildly on the extent to which the "controlee", as those under control orders are known, should be provided with the case against him, and left the overall system of control orders in place. But today's judgment is a more fundamental blow. The House of Lords – in a powerful panel of nine judges – has decided that the system of secret advocates violates the right to a fair trial unless the controlee has access to at least the irreducible minimum of the case against them. The current system of secret advocates has not allowed this.There are 100 or so special advocates currently accredited to act in secret proceedings although ironically, as a Justice report (pdf) released today points out, even in creating a system dealing with such sensitive information the government has not managed to gather its own intelligence on the exact number of lawyers appointed.

Special advocates operate according to a strict regime. As one told me, signing up involved rigorous security checks including interviews with friends and neighbours, requiring him to keep a safe in his office where all the papers are locked and providing him with secure transport whenever he needed to travel with them.

Some special advocates have expressed unease with operating in a system so antithetical to the usual ethics of legal representation – communicating key evidence with your client and taking their instructions is a fundamental part of what most advocates do.

Ian Macdonald QC, a renowned human rights barrister and one of the first special advocates to be appointed after the system was introduced for the first time in 1997, resigned in 2004 stating publicly that "whatever difference I might make as a special advocate on the inside is outweighed by the operation of a law, fundamentally flawed and contrary to our deepest notions of justice".

My role has been altered to provide a false legitimacy to indefinite detention without knowledge of the accusations being made and without any kind of criminal charge or trial. Such a law is an odious blot on our legal landscape and for reasons of conscience I feel that I must resign.

Today the law lords appear to be in agreement with the gist of this argument – criminal proceedings that deny the accused the right to know the case against them go against the grain of hundreds of years of carefully developed legal principles of which the British legal system has, ironically, been a proud exporter to countries around the world.

The erosion of openness in legal proceedings has not been confined to criminal trials or deportation either. Lawyers have been speaking for some time of the "creep" of secrecy throughout the legal system, including Louise Christian, who has been particularly vocal in warning of the use of closed evidence in employment tribunals and inquests.

Speaking at the Guardian Hay festival last month in a debate on civil liberties, former home secretary Charles Clarke – not widely known for his excessive liberalism – added his voice to the growing disquiet, acknowledging that the spread of secrecy needed to be scaled back.

The government was maintaining its official line today, however, stating that the system of special advocates was necessary to "manage the threat presented by terrorism".

"Protecting the public is my top priority and this judgment makes that task harder," home secretary Alan Johnson said this morning.

But given that cabinet members have been privately expressing their own unease at the continuation of counter-terrorism measures which were always intended to be temporary, including Jack Straw who spoke publicly about this to the Guardian last month, there is a subtext to today's judgment which is coming over loud and clear.

As the home secretary also said in his statement today "we take our obligations to human rights seriously". Of course the government is anxious to protect the public from any genuine security threat – no one, least of all the courts, would disagree with the importance of this. The government knows the system of control orders and special advocates is a deeply unfair way to respond to that threat and, reading between the lines, it looks like it simply has not come up with a Plan B. © Guardian News and Media Limited 2009