Liberty asserts that the Green Paper contains proposals which would allow future ministers to shut out members of the press, the public and bereaved families from any court case where it is considered a public hearing could ‘cause damage to the public interest’.
This might well include actions arising from complicity in torture, inquests into deaths in custody, police negligence, compensation claims resulting from 'friendly fire' or any civil claim capable of "embarrassing the authorities".
The Human Rights group’s campaign is launched with the help of a short film entitled ‘End of the Affair’ (see the foot of this article to view that video), which is released to coincide with Valentine’s Day. According to Liberty, it "dramatises the UK’s ‘special relationship’ with the US as a much more human dalliance".
Flying under the radar
Shami Chakrabarti, the director of Liberty, said: “The Government’s "secret justice" policy has been flying under the radar, but Liberty’s ‘For Their Eyes Only’ campaign will shine a light on this shameless attempt to cover up abuses of power."
The determined Chakrabarti added: "Proposed legislation wouldn't just end the long-held principle that no-one is above the law: it would exclude the press, public and victims from seeing justice done. Open courts and investigative journalists have fought to uncover some of the worst scandals of the war on terror. Now we have to fight against the Empire striking back."
The Government’s proposals would see Closed Material Procedures and Special Advocates brought more generally into the civil law. Proceedings would be conducted without the involvement of the party bringing the claim and secret evidence – never disclosed to the claimant, let alone public or press – would be used to defend serious allegations.
The only people present would be the judge, the Government and Special Advocates who are forced to try and represent claimants without ever being allowed to discuss evidence with them.
Liberty asserts that the Government is also seeking to elevate the Security Services – and potentially other bodies – "above the law" in civil actions focusing on the wrongdoing of third parties where the UK is involved.
'Fatal blow' for justice and transparency
"We all know that justice must not only be done, it must be seen to be done," explained Liberty's policy officer Sophie Farthing. "Well all of us, it appears, apart from those with the most power in our country."
As far as Farthing is concerned, the Government's proposals "would deal a fatal blow to justice and transparency" in our civil legal system.
She continued: "If the policy makes it onto the statute book, the Government will be able to throw a cloak of secrecy over litigation to which it is a party by gaining control over what material can be disclosed to the other side and in open court. This will be achieved by making Closed Material Procedures available in all civil cases."
Closed Material Procedures is a mechanism which currently allows legal proceedings to go ahead in private in a select number of exceptional cases, including appeals against control orders (and their replacement TPIMs).
The individual concerned isn’t present, nor is their legal representative. Instead the Government appoints a Special Advocate (SA) to represent "their interests". Having an SA is not like having a normal legal representative. He or she cannot disclose relevant material to the ‘client’ or even talk to them without Home Office permission.
"Instead," added Farthing, "the SA must contest the 'evidence' on the basis of guesswork and estimation, a role that has been described as 'like taking blind shots in the dark at a hidden target'.”
Justice behind closed doors
Farthing went on to state: "As Closed Material Procedures becomes routine rather than an exceptional legal anomaly, justice will take place behind closed doors and all at the Government’s say-so. It will not just be the press and public who are shut out, but – astonishingly – also litigants, their lawyers, victims and their families."
She added: "It will apply not only in civil disputes, but inquests as well. The thought of a 'secret inquest' for the victims of 7/7, or civil actions against police for assault being closed to public scrutiny, should send a shiver up the spine of everyone who wants to have confidence in what the authorities do in our name and, supposedly, in our interests."
In conclusion, Farthing urged: "This is a pivotal point for the Rule of Law, for justice and for democracy."